TMI Blog1936 (11) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... it 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at, 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 fathe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 137 and Atul Krishna Roy v. Lala Nandanji I.L.R.(1935) 14 Pat. 732 . 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. 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 continue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shivappa Dundappa I.L.R.(1928) 52 Bom. 376 and Suryanarayana v. Viswanadham AIR1936Mad956 do not help the appellant, because in those cases the person who wanted to get his property exempted from the attachment was a party to the money decree or the question of his liability was raised in the course of the money suit itself. Duraiswami v. Nagaswami AIR1929Mad898 may no doubt appear to be in favour of the appellant's contention. But, rightly or wrongly, the learned Judges based their decision on the ground that in that case the objecting sons had been impleaded as parties to the suit against the father, though in that suit they were exonerated. It is not for me to canvass the correctness of that decision, but the learned Judges expressly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he bona fides or mala fides of the partition has been referred to in some of the decisions for another reason, namely, the suggestion sometimes made that if the partition was bona fide, in the sense that sufficient provision has been made therein even for the discharge of the debts of the father, the shares allotted to the sons at such partition ought not to be held liable at all in any kind of proceeding for the pre-partition debts of the father. Whether that proposition is well founded or not, that appears to have been the reason for drawing the distinction in some of the cases between bona fide partitions and fraudulent partitions. Except in cases where the mala fide character of the partition is such as to lead the Court to come to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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