GAYA PRASAD Vs. MURLIDHAR

JUDGEMENT

(1.) This second appeal arises out of an application by the respondent, Murlidhar, who had a decree against the father of the appellants, to attach and put up for sale the joint family property belonging to the appellants and their father.

(2.) The respondent brought a suit on a mortgage against the father and impleaded the appellants. It was found that the mortgage-deed had only been executed by the father and one son (other than the present appellants). A simple decree was given against the father and son, and the suit was dismissed as against the present appellants. In execution the judgment-decree-holder sought to attach the joint family property. Objection to this attachment was raised by the present appellants on the ground that at the date when the attachment was asked for what had been the joint family property of the father and the present appellants had become their separate property by a voluntary partition. The trial Court allowed this objection. In second appeal the Additional District Judge of Aligarh held that the partition between the father and his sons (present appellants) was executed daring the pendency of the suit and to all intents and purposes was executed in order to defeat the appellants claim.

(3.) In this second appeal by the sons it is contended that there was no evidence to justify the finding of the lower appellate Court that the partition of the 15th August 1925 amounted to a fraudulent transfer within the meaning of Section 53, Transfer of Property Act, and that the sons had a right to partition the joint family property in order to avoid the risk of their father's judgment-creditor attaching the whole of the joint family property in execution of the decree against the father.