Veerappa Chettiar by guardian Vinaitheethal Achi and Another vs S.A. Ar. M. Annamalai Chettiar by agent A. Subbaraya Ayyar and Others

Varadachariar, J.—This is an appeal by the plaintiffs, who are uncle and nephew, against a decree which dismissed their suit to have it

declared that a half share in certain properties is not liable to be attached in execution of the decree, obtained by the first defendant against the

second defendant, in O.S. No. 215 of 1929. The debt for which that decree was obtained was contracted by the 2nd defendant on 14th

December, 1928. On 1st February, 1929, the 2nd defendant, under the advice of certain elders and mediators, executed a release Seed Ex. A in

favour of the plaintiffs, the first plaintiff being his younger brother and the second plaintiff being his minor son. That document recites that the

second defendant since he attained majority has not been properly looking after the family or its affairs and that he has taken to bad ways. These

recitals are now confirmed by the evidence of P.Ws. 1 and 2. P.W. 2 is no doubt interested in the minor plaintiff, being the grandfather of the

minor''s mother. But having regard to the fact that these statements are openly made in a registered document and spoken to by P.Ws. 1 and 2,

there is no reason to doubt the truth of these recitals.

Under the Hindu law, the only course open to those interested in the minor members of a joint family, if they wish to protect these members

from the misdeeds of the father or elder member, is either to bring about a partition or to get a release from the misbehaving elder member on

paying him a certain amount. Such transactions are no doubt open to attack by the creditors of the person so cut off from the family, and creditors

are justified in insisting that such transactions should be carefully scrutinised. But in the circumstances appearing in this case, we have no reason to

think that Ex. A was either a sham transaction or a dishonest transaction in the sense that its main purpose was to cheat creditors. Its main purpose

undoubtedly was to put beyond the power of the second defendant, as far as was possible under the law, to endanger his minor son''s interests in

the family property. The learned Judge has pointed to certain defects in the way in which the second defendant''s share in the family has been

arrived at in Ex. A and we are not prepared to say that those criticisms of the learned Judge are not well-founded; but they will only justify the

conclusion that to the extent to which the second defendant parted with his share for a sum of Rs. 5,000 the transaction cannot be held binding

upon the creditors. That is, not the same thing as saying that the release is wholly inoperative or that it is not a bona fide arrangement or that even

after that date, the second defendant must be regarded as continuing in a state of non-division with his minor son so as to make the minor son liable

for the debts contracted after that date, or so as to make the minor''s share liable to be proceeded against in execution of decrees in suits to which

he has not been made a party.

The Full Bench decision in Subramania Aiyar v. Sabapathy Aiyar I.L.R.(1927) 51 Mad. 361 : 54 M.L.J. 726 has no doubt established that,

even after partition, the son could be proceeded against, by way of suit, in respect of debts incurred by the father prior to partition. But we do not

agree with the learned Subordinate Judge that even after the son and the father have ceased to be undivided, the son''s share could be proceeded

against in execution, on a decree obtained against the father alone after the division.

In this view, we must allow the appeal so far as the second appellant''s one-fourth share in the family properties is concerned. To that extent we

must set aside the order in the claim proceeding. The parties will bear their own costs both here and in the Court below.