PICHA MOOPPANAR Vs. VELU PILLAI AND ANR.

JUDGEMENT

(1.) THE appellant in this second appeal filed Small Cause Suit No. 644 of 1940 in the Court of the District Munsiff of Ambasamudram against one Krishna Pillai on a promissory note executed by him and obtained a decree. The appellant sought to execute his decree by attaching the properties set out in the schedule appended to the present plaint. The first defendant in this suit who is the first respondent in the second appeal filed a claim petition objecting to the attachment on the ground that the suit property fell to his share in a family partition entered into between Krishna Pillai his father, himself and his brother Arumugham Pillai who is the second defendant in the present suit and the second respondent in the second appeal. The claim petition was allowed and the attachment was raised. The appellant thereupon filed the suit out of which this second appeal has arisen alleging that the partition relied upon by the first defendant was entered into with intent to defraud the creditors of Krishna Pillai. The suit was filed by the plaintiff on behalf of himself and the other creditors of Krishna Pillai. No objection to the frame of the suit can therefore be taken and if the plaintiff establishes that the partition was fraudulent as he alleged, he would be entitled to relief to the extent stated below. The District Munsiff of Ambas samudram who tried the present suit dismissed it holding that the plaintiff did not succeed in making out that the partition in question was in fraud of the creditors of Krishna Pillai. This judgment was affirmed by the Subordinate Judge of Tinnevelly.

(2.) IN this second appeal filed by the plaintiff his advocate Mr. T. L. Venkatarama. Aiyar has argued that the findings of the Courts below in regard to the character of the partition cannot be sustained as the matter was not viewed from the proper legal standpoint by either Court. He contends that according to the latest pronouncement of our Court in the case in K. S. RM. Firm v. Subbiah, (1944) 1 M.L.J. 384 :, I.L.R. 1945 Mad. 138:

(3.) IT is not denied that the debt in question in the present case is a pre -partition debt and would be binding on the sons. The first defendant who is the contesting defendant neither alleged nor proved that the debt is illegal or immoral and consequently not binding on him.