1. This is a judgment-debtor-objector's appeal against the order passed in execution by the learned Commercial Subordinate Judge, Delhi, dated 6-10-1953 dismissing the objections under Section 47 Civil P. C.
2. A small pedigree-table will help in understanding the case:--
Rattan Devi : Mahadeo Parshad : Wife No. 1
Second Wife married |
Benarsi Das Chiranji Lal.
3. On 9-2-1952 the present decree-holders got a decree for Rs. 12,888/127- and costs against the judgment-debtors as legal representatives of the deceased Mahadeo Parshad on the basis of certain forward transaction relating to silver and in execution of that decree the decree-holders got attached two properties --house No. 460 in Gali Gishan Datt, Maliwara, Delhi, and 7 1/2 shares in the Lakshmi Chand Jaipuria Weaving and Spinning Mills situate in Sabzi Mandi.
The objector's objections were that the attached property was hers and could not be made liable for the decree against her husband. She alleged that half of the house was under mortgage with Rai Sahib Ram Kumar and that on 28-10-1942 Mahadeo Parshad filed a suit for partition of the joint Hindu family property against his sons making the objector a party and she was allotted a share equal to the share of her husband and the joint family was thus disrupted and in lieu of that half share the property attached fell exclusively to the share of the objector by a deed of partition dated 12-6-1945 and had been in her possession ever since.
In the alternative she alleged that she was entitled to maintenance and res dence under Hindu Law by reason of her being the widow of the deceased and therefore the property was not liable to attachment and sale. The Court raised the following issues:--
1. Whether the property in dispute fell to the share of the petitioner and on what terms?
2. If so, is the property liable to attachment and sale under Section 32, Civil, P. C.?
3. If this property was given in view of maintenance and right of residence, is it not liable to attachment?
4. Whether the partition in dispute was effected to defeat the creditors under Section 53, Transfer of Pro pcrty Act?
The Court held that Mahadeo Parshad was heavily indebted at the time when the partition was effected between him and his wife in June 1945 and that Mahadeo Parshad had entered into many forward transactions of gold and silver the due date of which was 6-5-1943 in which he lost very heavily us a result of which he owed to the firm of Jamiat Rai Bishan Sarup Rs. 17,485/2/6, to Firm Fateh Chand Kishan Chand Rs. 9,143/8/- and to Finn Chunnu Mal Darbari Mill Rs. 19,000/-.
He also held that because the partition was made at a time when Mahadeo Parshad was so heavily indebted, it amounted to transfer which was hit by Section 53, Transfer of Property Act. He also disallowed the claim to maintenance and the judgment-debtor-objector has come up in appeal to this Court.
4. Counsel submits that there was a partition between Mahadeo Parshad and his two sons and his wife which was as a result of the filing of the suit which was started on 30-10-1942 and which result-ed in a decree dated 4-5-1943. Under Hindu Law a partition could be effeteed by the father during his lifetime: see paragraph 323 of Mulla's Hindu Law at page 422 where it is stated that for such a parti-tion the consent of the sons is not necessary: see also -- 'Nirman Bahadur v. Fateh Bahadur', AIR 1929 All 963 (A).
In the petition which was made by the appellant it was not stated as what was the reason for the suit for partition. What counsel submits is supplied by the statements of witnesses who have appeared for the appellant, but I am unable to see any such evidence which would really support the case of the appellant.
Chiranji Lal, her step-son, appeared as a witness, but he does not seem to say anything which assists the case of the appellant. In this case the facts are more eloquent than the oral evidence.
5. The contracts on the basis of which the decrees were passed date from 22-3-1943 to 21-4-1943 and the due date was 6-5-1943. Although there is nothing on the record counsel for the appellant stated before me that the reason for bringing the suit was that the sons were not agreeing to the rights of Kattan Devi appellant as they did not accept that she was the wedded wife of their father, but what led to a sudden change in the attitude of these sons is not quite clear, but one may deduce it from the facts.
On 4-5-1943 by a compromise a partition was entered into by which the sons accepted the status of Rattan Devi and the property falling to the share of the various parties was--
Mahadeo Parshad and Rattan Devi, Rs. 45,500/-and each of the sons got Rs. 47,765/-
and therefore although there was acceptation of thestatus of Rattan Devi, she really got nothing. Thecompromise was as follows:
'The parties have by consent made the following agreement--
The said agreement is by way of family arrangement and no rights have been decided. The said settlement will not affect the rights of Benarsi Das in regard to adoption, nor will it affect the rights of Chiranji Lal in regard to the suit which he has brought against Seth Rajkumar which has been dismissed. ****
All parties accept this that Rattan Devi is the wife of Seth Mahadeo Parshad and she also has a right. No separate shares are given to Mahadeo Parshad and his wife Rattan Devi and they are given a joint share. Parties have understood the accounts'.
(And then are given the values of the shares of each of the two parties,).
The partition which took place between the husband and wife is by a registered deed dated 16-6-1945 which recites the property which is owned by the husband and the wile and the husband got property worth Rs. 41,000/- which was as follows--
(1) Rights in a decree Rs. 16,000/-(2) Goods valued at Rs. 15,000/-(3) An old motet car worth Rs. 500/-(4) 7 1/2 shares out of 22 1/2 ofCharity Building. Rs. 9,500/-Rattan Devi got--(1) A house worth Rs. 20,000/-(2) 7 1/2 shares out of 22 1/2 shares of Lakhsmi Chand Jalpuria Spinning and Weaving Mills Rs, 21,000/-
Thus at the time when Mahadeo Parshad had incurred heavy liabilities all the tangible property was on partition given to Rattan Devi and the property which of a very flimsy character and could be screened from creditors was taken by Mahadeo Parshad.
6. Counsel submits that if there was a partition under Hindu Law the wife was entitled to an equal share and it cannot be said that the partition was not genuine. As I have said above, no reason has been shown as to why the father could not effect the partition without resorting to the suit and compromise, and this shows that the actual partition was as a time when the father had incurred heavy liabilities.
In my opinion, to a case of this kind the rule laid down by the Lahore High Court in -- 'Mahomed Ishaq v. Mahomed Yusuf', AIR 1927 Lah 420 (B), is applicable. There it was held that on proof of debts being actually due at the time of transfer, the intent to defeat or delay creditors will be presumed; and if there are no debts due at the time and the transferor runs into indebtedness subsequently, the presumption will be regulated by the circumstances of each particular case. At p. 421, Tek Chand J. observed:
'If, for instance, the transfer was made to ward off the effects of a threatened litigation or in anticipation of the transferor embarking upon a commercial venture or on the event of his going into trade, the intent to defeat or delay future creditors will be presumed'.
The partition took place at a time when the liability of Mahadeo Parshad had actually not been determined, but it cannot be said that it had not accrued.
7. Similarly -- 'Panna Lal v. Rama Nand' AIR 1936 Lah 193 (C), lays down that where a decree has been passed against the father for a pre-partition debt, the decree-holder can proceed in execution of the decree against the shares allotted to the sons of the debtor, and that in a case where the decree seems to have been passed after partition.
8. The appellant seeks to draw a distinction between a partition where property comes to a sou and where it is assigned to a wife. In the former case, he submits, the son is under a pious obligation and the wife, it is submitted is not, and he relies on a judgment of the Patna High Court in -- 'Prabhawati Kuer v. Ram Saran Lal' AIR 1934 Pat 538 (D), where it was held that a widow to whom a specific portion of the family property is given is entitled to retain it and that a creditor can only follow the property in the hands of a member of the family if the binding nature of the debt is proved in the presence of that member.
In that case a suit was brought for the recovery of money against the sons and grandsons of the debtor and his widow was also made a parly. The suit against the sons and grandsons was decreed, but against the widow it was dismissed. The decree-holders executed their decree and in execution attached the property which had been assigned to the widow on partition.
It was in those circumstances that it was held that the decree could not be binding on the widow unless it was obtained in her presence, and that is not so in the present case. The decree is either against the deceased or his legal representatives which include Rattan Devi. I do not see how this case helps the appellant.
9. Counsel then relies on -- 'Atul Krishna v.Lala Nandanji', AIR 1935 Pat 275 (E), where it washeld that in a suit filed against the father the partition and the father dies, sons are liable for the pre-partition debts, but the decree against the fatheralone cannot be executed against the separate sharesof the sons. Wort J. was of the opinion that noseparate suit against the sons is necessary and theirshare is liable.
But now it has been decided by all the Courts that a son is liable after partition for a debt contracted by the father before partition: See. Mulla's Hindu Law at page 361 para. 289. This is also the view taken by the Lahore High Court in -- 'Jawahar Singh v. Parduman Singh', AIR 1933 Lah 116 (F).
10. Lastly, reliance is placed on a judgment of the Madras High Court in -- Firm Schwebo v. Sub-biah', AIR 1944 Mad 381 (G), where four propositions were laid down by Patanjali Sastri J. differing from Varadachariar J. in -- 'Kuppan Chettiar v. Masa Goundan', AIR 1937 Mad 424 (H), but according to Hindu Law the property which is available for partition is that which is left after a provision has been made for joint family debts: see -- 'K. Venkureddi v. M. Venku Reddi', AIR 1927 Mad 471 (FB) (I) and that seems in my opinion, to be the proper view to take of Hindu Law on this subject.
It cannot be said that a Hindu male proprietor can defeat the rights of his creditors by entering into partition with his sons and wife nor can it be said that the rights of the wife will take precedence over the rights of the creditors to recover money from the joint family property, and this is supported by a judgment of the Oudh Court in -- 'Bhagwant Singh v. Daulat Singh', 21 Ind Cas 757 (J).
11. There is no doubt that the partition of 1945 between Rattan Devi and Mahadeo Parshad was intended to defeat and delay creditors because all the tangible property went to Rattan Devi and what Mahadeo Parshad got was property of a very insignificant type. The argument based on the pious obligation of a widow also does not seem to be sustain-able because the obligation of a widow taking her husband's property to pay his debts has also been held to be a pious duty coming under the head of religions benefit: see Mayne on Hindu Law at page 770.
And in recent cases it has been repeatedly held that a widow's obligation to pay her husband's debts, and her right to alienate the property which she inherited from him are not affected by the statute of limitations or any similar contrivance for getting rid of his obligations: see Mayne on Hindu Law at page 770.
12. In my opinion, the executing Court has rightly held against the judgment-debtor-objector, and I would therefore dismiss this appeal with costs.