S. Tirumalamuthu Adaviar vs Subramania Adaviar by Court Guardian S. Rajarama Ayyar, Advocate, High Court and Others

Varadachariar, J.—This Second Appeal arises out of a suit brought by two minors for a declaration that the properties which according to

them fell to their shares at the partition evidenced by Ex. A are not liable to be seized in execution of the decree obtained against their father in

S.C.S. No. 831 of 1928 on the file of the Sub-Court of Tinnevelly. The lower Appellate Court, granted the declaration; hence this appeal by the

decree-holder. The partition under Ex. A was effected soon after the passing of the decree in the Small Cause suit and it is in such suspicious

circumstances that both the lower Courts have taken the view that it must have been brought about for the very purpose of preventing the decree-

bolder in Small Cause suit from executing his decree against the properties that might be allotted to the shares of the minor sons. In that sense, the

partition may be said to be fraudulent or mala fide, and I see no reason to differ from that conclusion, though I must point out that that conclusion

can be based only upon inferences from the proximily of dates and the fact that the plaintiffs being minors, there was no other reason for a partition

at that particular juncture. No oral evidence has been adduced in this case. The point for determination in the second appeal is, taking the partition

to be fraudulent in that sense, has it the effect of precluding the decree-holder from executing his decree against the properties allotted to the shares

of the sons in that partition.

So far as the decisions in this Court go, there can be little doubt that but for the fraudulent purpose of the partition the decree-holder cannot

reach the son''s shares in execution of the decree obtained against the father alone. Mr. Appusawmi Aiyar has invited my attention to the decisions

in the other High Courts which reveal considerable conflict of judicial opinion on the question of the excitability of a decree obtained against the

father alone as against the shares allotted to his sons at a partition. 8ome of them proceed on the footing that there is no justification for drawing a

distinction between liability in a separate suit against the sons and the liability of the shares to be proceeded against, in execution of the decree

obtained against the father. In some, the decision of a Full Bench of this Court in Subramanya Aiyar v. Sabapathy Aiyar 51 M 361 : 110 Ind. Cas.

141 : (1928) MWN 346 : 27 LW 688 : AIR 1928 Mad. 657 : 51 MLJ 726, is regarded as warranting the above view, though, with all respect, I

would observe that this does not appeal to me, to be correct. In some cases, again a distinction is drawn between a partition which takes place

after the money decree has been obtained against the father and a partition which takes place before the money decree. This distinction is based on

the ground that, where the decree is obtained before partition, though execution proceedings may be started after partition, the father might well be

deemed to have been sued in a representative character and that, therefore, the decree, though in name only against the father might well be treated

as a decree against the sons as well, it is sufficient for my present purpose to say that it will be difficult to apply this theory of representation when a

suit is brought against the father on a promissory note executed by himself. It has often been pointed out that in a suit of that kind, the cause of

action against the father is on the note and the cause of action as against the sons is on their Hindu Law liability, and it is difficult to speak of the

father as ""representing"" the sons in a suit on a promissory note when it will not be open to him to raise defences which will undoubtedly be open to

the sons if they had been impleaded in the suit. Another line of authority draws a distinction between cases of bona fide partition and of fraudulent

partition, and founding themselves upon the observations in Krishnaswamy Konan v. Ramaswamy Aiyar 22 M 519 : 9 MLJ 127 they hold that

where the partition is fraudulent the decree obtained against the father may even be executed against the properties allotted to the sons at such

partition. Even if this view could be held to be right, there is considerable difference of opinion in the authorities as to what is exactly meant by the

expression ''fraudulent partition''. If as was held in Indar Pal and Another Vs. The Imperial Bank, the partition is found to be colourable there

should be no difficulty in ignoring it. If, on the other hand, it is merely what must be described as a fraud upon the creditors, I do not see any

justification for holding that for purposes of execution, such partition can be ignored.

That the expressions ''bona fide partition'' and ''mala fide partition'' have been differently understood by different Judges and on different

occasions can be gathered from the observations in Taduri Ramachandra Jagannatharao and Others Vs. Vadrevu Viswesam, , Kishan Sarup Vs.

Brij Raj Singh and Another , Gaya Prasad and Another Vs. Murlidhar, and Atul Krishna Ray v. Nandanji 14 Pat. 732 : 157 Ind. Cas. 53 : AIR

1935 Pat 275 : 16 PLT 393 : 1 BR 69 . I must also point out that when one Speaks of a fraudulent partition brought about by a father with a view

to defeat his creditors, two questions may be intended to be compromised in the consequences sought to be deduced therefrom. One is with

reference the possibility of the father alloting to himself a much smaller share than he would be otherwise entitled to. An objection on this score

would presumably be one to be dealt with u/s 53 of the Transfer of Property Act. Cf. Veerappa Chettiar v. Annamalai Chettiar 68 MLJ 157 : 156

Ind. Cas. 439 : (1935) MWN 190 : AIR 1935 Mad. 316 : 41 LW 431 : 7 RM 699. The other consequence sought to be implied is that the

partition should be ignored and the sons treated as if they still continued to be joint with their father. No doubt the observation in Krishnaswamy

Konan v. Ramaswamy Aiyar 22 M 519 : 9 MLJ 127 would seem to support such a contention. But the observation was only made as a

reservation in that case and could scarcely be treated as a decision by itself.

Dealing with the matter on principle, it is difficult to see how the mere fact that members of a family who are in law entitled to enter into a

partition at any time they choose happen to enter into a partition at a time most inconvenient to a creditor can make it fraudulent in the sense that

the creditor can ignore it. The law provides ways in which the creditor can avoid any injurious consequences arising there from, namely, by

impleading the sons in the action that he may bring against the father because it is now well established by the preponderance of authority in nearly

all the Courts that a partition will not defeat the rights of the creditor, though it may have some bearing on the procedure to be followed by him for

the realisation of his debt.

Having regard to the above considerations, I do not think I need do more than refer to the cases cited by Mr. Appusawmy Ayyar on behalf of

the appellant, namely, Kishan Sarup Vs. Brij Raj Singh and Another , Jawahir Singh v. Parduman Singh 14 Lah. 399 : 141 Ind. Cas. 424 : AIR

1933 Lah. 116 : Ind. Rul. (1933) Lah. 119 : 34 PLR 291, Atul Krishna Ray v. Nandanji 14 Pat. 732 : 157 Ind. Cas. 53 : AIR 1935 Pat 275 : 16

PLT 393 : 1 BR 69 : RP 89 and Raghunandan Pershad v. Moti Ram 6 Luck 497 : 119 Ind. Cas. 449 : AIR 1929 Oudh 406 : Ind. Rul. (1929)

Oudh 529 : 6 OWN 689, Annabhat Shankarbhat Alvandi Vs. Shivappa Dundappa Manvi, and Yadavalli Suryanarayana v. Chella Viswanadham

71 MLJ 518 : 168 Ind. Cas 686 : 44 LW 476 : (1936) MWN 1104 : AIR 1936 Mad. 956 : 9 RM 617 do not help the appellant, because in

these cases the person who wanted to get his property exempted from the attachment was a pany to the money decree or the question of his

liability was raised in the course of the money suit itself. Doraiswami Nadan and Others Vs. Nagasami Naicken and Another, may no doubt

appear to be in favour of the appellant''s contention. But, rightly or wrongly, the learned Judges based their decision on the ground that in that case

the objecting sons had been impleaded as parties to the suit against the father though in that suit they were exonerated. It is not for me to canvass

the correctness of hat decision, but the learned Judges expressly make this circumstance the distinguishing factor when they refer to the

observations of Ananthakrishna Ayyar, J. in Subramanya Aiyar v. Sabapathy Aiyar 51 M 361 : 110 Ind. Cas. 141 : (1928) MWN 346 : 27 LW

688 : AIR 1928 Mad. 657 : 51 MLJ 726. The view taken in Kameswaramma v. V.V. Subba Rao 38 M 1120 : 24 Ind. Cas. 474 : AIR 1914

Mad. 328 : 27 MLJ 112 : (1914) MWN 742 has been consistently followed in this Court to the extent of recognising the distinction between the

right of the creditor to proceed by a separate suit against the sons even after partition and his right; to attach the sons'' shares in execution pi, the

decree obtained against the father. Cf. Adivi Bapiraju v. Tummalapalli Sreeramulu 40 LW 588 : 152 Ind. Cas. 459 : AIR 1934 Mad. 612 : (1934)

MWN 1027 : 7 RM 231. See also Veerappa Chettiar v. Annamalai Chettiar 68 MLJ 157 : 156 Ind. Cas. 439 : (1935) MWN 190 : AIR 1935

Mad. 316 : 41 LW 431 : 7 RM 699 and Appeal No. 25 of 1932 Moravaneni Veerayya and Others Vs. Sree Raja Bommadevara Venkata

Bhashyakaralarao Bahadur, . If, as recognised, in Krishnaswamy Konan v. Ramasawmy Aiyar 22 M 519 : 9 MLJ 127 and Kameswaramma v.

V.V. Subba Rao 38 M 1120 : 24 Ind. Cas. 474 : AIR 1914 Mad. 328 : 27 MLJ 112 : (1914) MWN 742, the attachability of the sons1 shares

depends upon the power of the father to alienate it at the time the creditor seeks to attach the same, it is difficult to see how the fact of the partition

being one intended to defraud creditors can make any difference. If it'' was intended to be operative and is in law operative, to bring about a

division in status between the father and the sons, the father''s power of alienating the shares allotted to the sons at such partition must have come

to an end with it the right of the creditor to attach such shares.

The question of the bona fides or mala fides of the partition has been referred to in some of the decisions for another reason, namely the

suggestion sometimes made that if the partition was bona fide: in the sense that sufficient provision has. been made therein even for the discharge of

the debts of the father, ,the shares allotted to the sons at such partition ought not to be held liable at all in any kind of proceeding for the pre-

partition debts of the father. Whether that proposition is well founded or not, that appears to have been the reason for drawing the distinction in

some of the cases between bona Repartitions and fraudulent partitions. Except in cases where the mala fide character of the partition is such as to

lead the Court to come to the conclusion that the partition was not intended to be operative at all, I am unable to see how the mala fide character

bears on the question of the creditor''s rights to attach the sons'' share in execution of a decree obtained against the father alone. I am, therefore, of

opinion that the conclusion of the lower Appellate Court is right. The second appeal fails and is dismissed with costs.

Leave granted.