NARAYAN KUNBI Vs. RAMKISAN

JUDGEMENT

(1.) 1. This second appeal arises out of a declaratory suit. One Ramkisan in execution of a decree against Ganaji had attached his house and kotha and a declaratory suit was filed by the minor son of Ganaji to the effect that the said property had fallen to his share at a partition effected between him and his father in May 1925. The date of the decree in which the property was attached is 7th September 1927. The trial Court declined to grant the declaration holding that the partition was fraudulent and this decision was upheld in appeal.

(2.) IN second appeal the plaintiff contends that the very circumstances on which the lower Courts have relied as-going to prove the fraudulent nature of the partition themselves operated as-good reasons for effecting a valid partition, namely, the protection of the interest of the minor son. The partition-took place when the son was 13 years of age between himself, another minor son and the father. It is proved that the father at the time was heavily indebted, that all the immovable property, in the shape of a field, which was allotted to the father was immediately mortgaged to his cousin for its full value, and that there was no property remaining to be taken in execution of the father's debt as far as the share allotted to the father was concerned. The father has continued to be joint in mess and the superintendence of the son's property was continued by the father. No arrangement whatever was made for the division of the family debts, nor has any evidence been led to show that a larger-share was allotted to the father on partition to enable him to satisfy his personal debts, for which the sons would become liable. Legitimate protection of the son's interest, which can be a proper ground for the partitioning of a minor's, share in a coparcenary property, does not extend to enlargement of that minor's share by giving him his part of the family property entirely unencumbered by valid family debts. Such an act is fraudulent and the decision of the lower Courts on this point is undoubtedly correct. The partition is entirely nominal. It was never acted on and there was no intention of acting on it except for putting it forward in respect of the claims of legitimate creditors in execution.