RAJPAL Vs. PARWATRAO

JUDGEMENT

(1.) . 1. Plaintiff and defendant 3 were uncle and nephew and they were in possession of two holdings, one consisting of an absolute occupancy field and the other of two occupancy fields. They owned these jointly. Defendants 1 and 2 had obtained a decree against defendant 3 alone on 30th August 1926 and began execution proceedings on 5th October 1926. In the course of these proceedings they attached defendant 3's half-share in absolute occupancy field. The actual date of the attachment is not certain, but it must have been between 3rd August 1925 and 21st January 1927 on which date the plaintiff's objection to the attachment under Order 21, Rule 58, was dismissed. On 31st May 1926 the plaintiff had applied to the revenue authorities for partition of these holdings and an order was passed by the Naib-Tahsildar on 2nd August. In this partition the division was made by the very simple process of allotting the whole of the occupancy holding to defendant 3, the nephew, and the whole of the absolute occupancy holding to the uncle, the plaintiff. The arrears and the rental assessments were roughly approximate. The proceedings were ex parte against defendant 3 who has in this suit denied any knowledge of them. The consequence was that the plaintiff brought a suit for a declaration that the half-share in the absolute occupancy field was not liable to attachment as it was his property.

(2.) THE defence was that the partition was fraudulent and collusive and made with the sole object of saving the land from the attaching creditors, that the partition was made ultra vires of the Tenancy Act and that as the partition could not come into effect until the beginning of the next agricultural year, namely, 1st May 1927, and the revenue authorities had passed orders to this effect, the attachment was valid as it was made before the partition could operate. These contentions have not succeeded in either of the lower Courts and the declaration which was given to the plaintiff was confirmed by the learned District Judge. Defendants 1 and 2 have now preferred a second appeal, Defendant 3 is made a respondent. He has not appeared to contest the appeal.

(3.) AS has been held in Vinayak v. Jairam AIR 1932 Nag 31, Section 93, Tenancy Act, refers only to the breaking up of a holding, and has no applicability to the redistribution of holdings without any breaking up. I am satisfied that the action of the revenue authorities in this instance was ultra vires of the Tenancy Act. The surrounding circumstances also show the suspicious nature of the transaction and I can find no warrant for the opinion held by the trial Court and the lower appellate Court that far from acting in collusion, the nephew actually is favouring the decree-holders. His absence from the partition proceedings does nothing to allay this suspicion, as the lower appellate Court appears to hold. His absence would rather appear to be an attempt to show bona fides and to avoid a suspicion of collusion. The application was made when a decree became imminent. All the defendant's immovable property which could be sold was sold to his uncle, and the fact that the crops of the occupancy fields were sold and the money was applied to the decretal debt against the nephew is only an attempt to satisfy the decree and to avoid the attachment and loss of the property at all costs.