1936 (11) TMI 28 - HC - Indian Laws

Summary

Issues:
- Suit for declaration of properties not liable to be seized in execution of decree against father
- Validity of partition under Ex. A and its impact on decree execution against sons' shares

Analysis:

Issue 1: Suit for declaration of properties not liable to be seized in execution of decree against father
The second appeal involves a suit by two minors seeking a declaration that properties falling to their shares in a partition under Ex. A are not subject to seizure in execution of a decree against their father. The lower appellate court granted the declaration based on the suspicious circumstances surrounding the partition, indicating potential fraud to avoid the decree-holder from executing the decree against the sons' properties. The key question is whether the fraudulent partition prevents the decree-holder from executing the decree against the sons' shares.

Issue 2: Validity of partition under Ex. A and its impact on decree execution against sons' shares
The judgment delves into the legal implications of a partition, particularly when conducted fraudulently to evade creditors. Various judicial opinions and decisions from different High Courts are discussed, highlighting the conflicting views on the executability of a decree against the father concerning the sons' shares post-partition. The judgment examines distinctions between bona fide and fraudulent partitions, emphasizing that a fraudulent partition may not shield the sons' shares from execution of a decree against the father. The court emphasizes that a creditor's rights are not defeated by a partition, and the creditor can take appropriate legal steps to recover the debt, such as impleading the sons in the action against the father.

The judgment also addresses the significance of distinguishing between bona fide and fraudulent partitions in determining the liability of sons' shares for pre-partition debts of the father. It highlights that unless the partition is deemed non-operative due to extreme mala fides, the character of the partition does not impact the creditor's right to attach the sons' shares in executing a decree against the father alone. The court concludes that the lower appellate court's decision is correct, dismissing the second appeal with costs and granting leave.

In summary, the judgment extensively analyzes the legal implications of a partition conducted under suspicious circumstances to avoid creditor claims, emphasizing that a fraudulent partition does not shield sons' shares from execution of a decree against the father. It clarifies the creditor's rights and the legal recourse available to recover debts despite such partitions, ultimately upholding the lower court's decision in the suit brought by the minors.