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TMI Blog1936 (12) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... Ex. V, dated 13th 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 ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the proposition has now been placed beyond doubt by the observations of their Lordships of the Judicial Committee in Sat Narain v. Rai Bahadur Sri Kishen Das (1936) 71 M.L.J. 812: L.R. 63 IndAp 384 : I.L.R. 17 Lah. 644 that the father's power of sale for his debts exists only so long as the joint family remains undivided. Their reference with approval to the decision of this Court in Baluswami Aiyar, In re (1928) 55 M.L.J. 726 : L.R. 51 Mad. 417 , shows that even a division in status will suffice to put an end to this power. It would therefore follow that after a division in status the father's creditor cannot, any more than the Official Assignee, claim that the property is saleable by the father and therefore attachable by him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the discharge of the father's debts. Their Lordships, no doubt, recognise that in a suit for partition it is proper that the Court should make provision for the discharge of the father's debts and that the remaining property alone should form the subject-matter of division between the coparceners. But it nevertheless seems to me too much to say that, except in cases where the father's debts are specifically referred to and provided for in a partition deed, the partition deed cannot be regarded as a bona fide partition arrangement. In the present case the finding of the lower appellate Court is not merely that the partition was not nominal but that the plaintiffs had not shown that the share allotted to the first defendant w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the partition deed was presented for registration the very next day after execution. 8. I am not sure if it is possible to split up a decree like the one obtained by the plaintiffs' father in this case and give the decree-holder a right of execution against the sons' shares in respect of so much of it as may represent the claim under Ex. D which alone was a pre-partition debt. But that question also is immaterial in the view I have taken. The Lower Appellate Court was, in my opinion, right in dismissing the plaintiffs' suit. 9. A further point was raised before us that at least in respect of the properties comprised in the D schedule to the partition deed, the plaintiffs must be entitled to execute the decree obtained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llotted to his wife and daughters with remainder over to his sons. 10. Mr. Gopalaswami Aiyangar finally asks that the suit may at least be permitted to be treated as a suit to recover money from the sons in respect of the claim due under the promissory note, Ex. D. We regret we are unable to accede even to this prayer. It will be wholly changing the nature of the suit, and prima facie the suit has been instituted more than three years after the date of Ex. D. We do not feel that we are justified in allowing the change of the basis of the claim without further information clearly available from the record that the money claim would not be barred by limitation. 11. The result is that the second appeal fails and is dismissed with costs. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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