KM KR KM KUPPAN CHETTIAR Vs. MASA GOUNDAN

JUDGEMENT

(1.) This second appeal arises out of a suit instituted by the legal representatives of a decree- holder to get a claim order set aside.

(2.) The father of the plaintiffs obtained a money decree against the first defendant on 17th September, 1926 on three promissory notes executed by the first defendant, Exs. D, D-1 and D-2. Between the dates of Exs. D and D-1 a partition arrangement was entered into between the first defendant and his sons, defendants 2 to 5. {Vide Ex. V, dated 13 October, 1925.) It is alleged that the plaintiff's father was not aware of this partition and so happened to make further advances to the first defendant under Exs. D-1 and D-2 in the course of November and December 1925. The suit, O.S. No. 1400 of 1926, was instituted for the recovery of money due under these three promissory notes but the first defendant alone was impleaded as defendant thereto and a decree was obtained in due course. When the plaintiffs proceeded to attach certain properties in execution of this money decree the defendants 2 to 5 came forward with a claim petition and prayed that the properties which had fallen to their shares under Ex. V should be released from attachment. As the properties were accordingly released, the plaintiffs filed this suit to obtain a declaration that they are entitled to attach the properties which the defendants 2 to 5 claimed to have fallen to them in the partition.

(3.) The question for determination is whether, in spite of the partition evidenced by Ex. V, the shares taken by defendants 2 to 5 are liable to be proceeded against in execution of the money decree obtained against the father alone. I have dealt with this question at some length in a judgment recently delivered by me in Thirumalamuthu Adaviar V/s. Subramania Adaviar and I do not propose to repeat what has been said there. I shall only add that the case for the decree-holder was much stronger in that case than in the present instance because in that case I proceeded on the footing that the partition was entered into with a view to defeat the creditor.