DORAISWAMI NADAN Vs. NAGASAMI NAICKEN

JUDGEMENT

(1.) Two points have been argued before us in this appeal, firstly, that the decision of the learned Judge that the partition was effected by the razi decree Ex. B dated 16 November 1914 is incorrect and secondly, that even assuming it to be correct the share of the plaintiffs in the family property was not liable to be sold in execution proceedings obtained against their father, defendant 3. The father of the plaintiffs executed a pronote dated 14 September 1914. The creditor defendant 1 brought a suit upon the pronote, obtain-ad a decree and in execution of that decree purchased the property in the name of his father, defendant 2, on 12 February 1919. The argument addressed to us is that the date of the partition should be regarded as the date on which the sons (plaintiffs) brought O.S. No. 65 of 1912 on the file of the Principal District Mutisif's Court of Srivilliputtur which became O.S. No. 77 of 1914 on the file of the Additional District Munsif. No doubt the filing of a partition suit even on behalf of minor sons amounts to a partition., and the Court of first instance in the present suit has referred to this suit as one for a fresh partition. This is not, however, correct. By an unregistered deed of 1908 defendant 3 purported to make a division between himself and his minor sons, the plaintiffs. The decree in O.S. No. 65 of 1912 (O.S. No. 77 of 1914) shows that the suit was brought by the present plaintiffs for a declaration that they continued as members of an undivided family and that the partition deed dated 16 April 1908 was fraudulent and not binding on them. It was therefore not a partition at all. On the other hand it was a suit for a declaration that the family remained undivided. That suit ended in a compromise decree under the terms of which the properties were divided. The learned Judge is therefore right in (holding that the partition was effected by the compromise decree dated 16 November 1914, which was subsequent i to the execution of the pronote on which the decree against the father was obtained.

(2.) A further attempt was made to argue, when this ground obviously failed, that the deed of l908 effected a partition. It is certainly not open to the plaintiffs whose case throughout was that no partition was effected by the deed of 1908 to take up this attitude now. If there was a valid partition in 1908 no partition decree could have been passed in 1914. This ground also fails.

(3.) The second ground is that as the sons were exonerated and the decree was a personal one obtained against their father, the shares of the sons in the family property are not liable to be sold. The first case quoted for the appellants is Subramania Ayyar V/s. Subapathy Iyer A.I.R. 1928 Mad. 657. This Fall Bench ruling is against the contention. It was there held (Coutts-Trotter C.J. and Srinivasa Iyengar, J., dissenting) that a simple creditor of a father in a joint Hindu family is entitled to recover the debt from the shares of the sons after a bona fide partition between the father and sons. The appellants, however, sought to rely on certain remarks in the judgment of Anantakrishna Ayyar, J., at p. 410 (of 51 Mad). In the first place they must be regarded as obiter and in the second place the remark that the creditor should make the father and the son both parties to the suit and that the creditor could not by obtaining a decree against the father in a suit in which the sons were not parties, proceed to execute the decree against the properties allotted to the son under the partition, does not cover the present case, for the sons were made parties to the suit.