S THIRUMALAMUTHU ADAVIAR Vs. MINOR SUBRAMANIA ADAVIAR BY COURT GUARDIAN SRAJARAMA AIYAR, ADVOCATE, HIGH COURT

JUDGEMENT

(1.) This second appeal arises out of a suit brought by two minors for a declaration that the properties which according to them fell to their shares at the partition evidenced by Ex. A are not liable to be seized in execution of the decree obtained against their father in S.C.S. No. 831 of 1928 on the file of the Sub-Court of Tinnevelly. The lower appellate court granted the declaration; hence this appeal by the decree-holder. The partition under Ex. A was effected soon after the passing of the decree in the small cause suit and in such suspicious circumstances that both the lower courts have taken the view that it must have been brought about for the very purpose of preventing the decree-holder in the small cause suit from executing his decree against the properties that might be allotted to the shares of the minor sons. In that sense, the partition may be said to be fraudulent or mala fide, and I see no reason to differ from that conclusion, though I must point out that that conclusion can be based only upon inferences from the proximity of dates and the fact that the plaintiffs being minors, there was no other reason for partition at that particular juncture. No oral evidence has been adduced in this case. The point for determination in the second appeal is, taking the partition to be fraudulent in that sense, has it the effect of precluding the decree-holder from executing his decree against the properties allotted to the shares of the sons in that partition?

(2.) So far as the decisions in this Court go, there can be little doubt that but for the fraudulent purpose of the partition the decree-holder cannot reach the son's shares in execution of the decree obtained against the father alone. Mr. Appuswami Aiyar has invited my attention to the decisions in the other High Courts which reveal considerable conflict of judicial opinion on the question of the executability of a decree obtained against the father alone as against the shares allotted to his sons at a partition. Some of them proceed on the footing that there is no justification for drawing a distinction between liability in a separate suit against the sons and the liability of the shares to be proceeded against in execution of the decree obtained against the father. In some, the decision of a Full Bench of this Court in Subramania Aiyar V/s. Sabapathy Aiyar (1927) 54 M.L.J. 726 : I.L.R. 51 Mad. 361 (F.B.) is regarded as warranting the above view, though, with all respect, I would observe that this does not appeal to me to be correct. In some cases again a distinction is drawn between a partition which takes place after the money decree has been obtained against the father and a partition which takes place before the money decree. This distinction is based on the ground that, where the decree is obtained before partition, though execution proceedings may be started after partition, the father might well be deemed to have been sued in a representative character and that therefore the decree, though in name only against the father might well be treated as a decree against the sons as well. It is sufficient for my present purpose to say that it will be difficult to apply this theory of representation when a suit is brought against the father on a promissory note executed by himself. It has often been pointed out that in a suit of that kind, the cause of action against the father is on the note and the cause of action as against the sons is on their Hindu Law liability, and it is difficult to speak. of the father as "representing" the sons in a suit on a promissory note when it will not be open to him to raise defences which will undoubtedly be open to the sons if they had been impleaded in the suit. Another line of authority draws a distinction between cases of bona fide partition and of fraudulent partition, and founding themselves upon the observations in Krishnaswamy Konan V/s. Ramaswamy Aiyar (1899) 9 M.L.J. 127 : I.L.R. 22 Mad. 519 they hold that where the partition is fraudulent the decree obtained against the father may even be executed against the properties allotted to the sons at such partition. Even if this view could be held to be right, there is considerable difference of opinion in the authorities as to what is exactly meant by the expression fraudulent partition . If as was held in Indar Pal V/s. The Imperial Bank (1915) I.L.R. 37 All. 214 the partition is found to be colourable there should be no difficulty in ignoring it. If, on the other hand, it is merely what must be described as a fraud upon creditors, I do not see any justification for holding that for purposes of execution, such partition can be ignored.

(3.) That the expressions bona fide partition and mala fide partition have been differently understood by different judges and on different occasions can be gathered from the observations in Jagannatha Rao V/s. Viswesam , Kishan Sarup V/s. Brijraj Singh (1929) I.L.R. 51 All. 932 at 936, 937, 946, Gaya Prasad V/s. Murlidhar (1927) I.L.R. 50 All. 137 at 141 and Atul Krishna Roy V/s. Lala Nandanji (1935) I.L.R. 14 Pat. 732 (F.B.). I must also point out that when one speaks of a fraudulent partition brought about by a father with a view to defeat his creditors, two questions may be intended to be comprised in the consequences sought to be deduced therefrom. One is with reference to the possibility of the father allotting to himself a much smaller share than he would be otherwise entitled to. An objection on this score would presumably be one to be dealt with under Section 53 of the Transfer of Property Act. Cf. Veerappa Chettiar V/s. Annamalai Chettiar (1934) 68 M.L.J. 157. The other consequence sought to be implied is that the partition should be ignored and the sons treated as if they still continued to be joint with their father. No doubt the observation in Krishnaswamy Konan v. Ramaswamy Aiyar (1899) 9 M.L.J. 127 : I.L.R. 22 Mad. 519 would seem to support such a contention. But the observation was only made as a reservation in that case and could scarcely be treated as a decision by itself.