Shamsher Bahadur, J.
(1) The defendants appellants, Messrs. Khanna and Hari Raj, obtained a money decree for a sum of Rs. 6,876-6-0, from the Bombay City Civil Court on 14th of September 1951, against Shiv Datta, defendant No. 2. Five days later, on 19th of September 1951, a reference was made to arbitration by the judgment debtor and his tow brothers, Vishnu Datt plaintiff and Uma Datt, to Shri Mohinder Lal Chopra Advocate for partition of joint properties inherited from their father Gujar Mal.
An award was made on the same day by the Arbitrator whereby the property in suit valued at Rs. 10,000/- was allotted to the plaintiff-respondent, Vishnu Datt, another property valued for the same sum was allotted to Uma Datt and the remaining nine properties at Naru Nangal and Jullundur, also valued at Rs. 10,000 to the judgment debtor, Shiv Datt. In execution of their decree, Messrs. Khanna and Hari Raj attached one-third portion of the suit property, which is a house in Jullundur, on the ground that the judgment-debtor was the owner in it to the extent of one third share.
Objections were filed by Vishnu Datt against this attachment under Order 21, Rule 48 of the Code of Civil Procedure. These objections were disallowed on 11th of April 1953, and thereafter the suit giving rise to this appeal was instituted under Rule 63 of Order 21, Code of Civil Procedure, on 28th of November, 1953. To complete the narration of events, it may be mentioned that the suit property was first purchased by Narinjan Dass, defendant No. 3, in auction sale which was later cancelled and it was then sold to Major Bishan Chand Bhalla, defendant No. 4, for a sum of Rs. 2,000/-.
(2) The suit was resisted both by the decree-holder and the auction purchaser and the following issues were framed :
(1) Whether the plaintiff has become owner of the full house in dispute under a valid partition with his brother ?
(2) In case issue No. (1) is proved, whether the said partition is fictions, collusive and fraudulent, and what is its effect ?
(3) The trial Judge has found both the substantive issues in favour of the plaintiff and has decreed the suit. This appeal has been filed by the decree-holder and the auction purchaser.
(4) Mr. Nayar, who has appeared on behalf of the appellants, has urged that the partition which has been brought about by arbitration is not binding on the decree-holder and the auction purchaser as it was based on a reference which is not valid. It has also been urged by him that the award which was made only five days after the decree was granted in favour of the appellants was prima facie a fraudulent transaction and more so as it was a consensual agreement between the judgment-debtor and his two brothers designed to prevent the attachment of the suit property by the decree-holder.
It is true that Vishnu Datt plaintiff has admitted as P.W. 2 that Shiv Datt having suffered heavy losses in stock and share business in Bombay there was a fear that the family property may be attached for the satisfaction of his debts, and it was, therefore, considered expedient that a partition should be brought about. It has also been brought out in the evidence of the plaintiff that Shiv Datt had filed an application in the High Court of Bombay for being made an insolvent. It also appears that the reference to arbitration was sent to Bombay for the signature of Shiv Datt.
It is not known whether the Arbitrator had before him the written consent of all the parties before he proceeded on arbitration. It may be assumed in favour of the appellants that the arbitration was brought in haste with the avowed object of saving the properties at Jullundur from attachment. Mr. Mohinder Lal Chopra was not appointed an Arbitrator on any written request of the parties. It is, however, to be borne in mind that the detailed award of the Arbitrator dated 19th of September 1951 made a mention of the eleven properties which were jointly possessed by the three brothers.
The entire property was valued at Rs. 30,000 and it was made into three lots. Vishnu Datt and Uma Datt were given one house each in Jullundur valued at Rs. 10,000 a piece, while the remaining nine properties though consisting of small units fell to the share of the judgment-debtor Shiv Datt. Though Vishnu Datt admitted that the property consisting of haveli and taur situated at Naru Nangal had fallen down, it cannot be denied that small units of properties in Jullundur aggregating to the value of Rs. 6,500 were allotted to Shiv Datt.
There is nothing wrong for the sons of a Hindu to make a partition of the joint family property to avoid attachment or sale so long as each of the brothers is awarded his due share. In Gaya Prasad v. Murlidhar, AIR 1927 All 714, it was held by a Division Bench consisting of Ashworth and Kendall JJ. that
'the sons of a Hindu at any time up to attachment of the joint family property can enter into a partition with their father with the express object of avoiding attachment of what up to the time of the partition has been joint family property. If they do so, their individual property acquired by partition will not be liable to attachment. The partition can only be set aside on evidence showing fraud, and the mere fact of the desire to save their property will not be sufficient to justify an inference of fraud.'
To a similar effect are the observations of Mr. Justice Patanjali Sastri J., in a Division Bench judgment of the Madras High Court in Firm Schwebo v. Subbiah, AIR 1944 Mad 381. Says Patanjali Sastri J., at p. 382 thus :
'On the question of partition, we find it difficult to accept the suggestion of the appellants that it was a mere colorable and sham transaction not meant to operate between the parties. It is true that Subramaniam Chettiar's sons were all minors at the time of the partition and that they continued to be joint even after the partition. And it is also true that there was no division of the properties by metes and bounds and that the recital as to there being no debts payable by the family was false, as there was a mortgage for Rs. 30,000 outstanding on one of the properties included in the deed'.
(5) In the present case, all that has been shown is the existence of a debt against Shiv Datt and the obvious desire of his brothers to set apart his share to avoid any attachment of the joint family properties. Neither any allegations of fraud have been made nor evidence adduced in support of it. Fraud cannot be easily presumed and it must be strictly proved. From a mere proximity of the dates of the decree and the reference to arbitration it cannot be inferred that the reference was animated by any fraudulent desire or intention.
It was neither illegal nor illegitimate for the parties to set apart the share of Shiv Datt against whom it was apprehended or even known that there would be liabilities. No challenge has been offered to the valuation which has been put on the properties by the Arbitrator. In absence of such evidence, it is very difficult to come to a conclusion that the reference was fraudulent and void. It is true that there is no mention of reference to partition through arbitration in the plaint filed by Vishnu Datt but in the written statement of Shiv Datt, defendant No. 2 it has been stated that the house in dispute had fallen to the share of the plaintiff in partition.
This was a matter on which issue had been joined and it was incumbent on the decree-holder and auction purchaser to adduce proof in support of their allegations of fraud. A transaction does not become fraudulent by merely calling it so even though there are suspicious circumstances attaching to it. Fraud has to be strictly proved and we find that in this case there is nothing on record to justify an answer in favour of the defendants on issue No. 2.
(6) In this view of the matter, we think that the suit has been rightly decreed in favour of the plaintiff. This appeal fails and is dismissed. In the peculiar circumstances of this case, however, we would leave the parties to bear their own costs.
Tek Chand, J.
(7) I agree.
(8) Appeal dismissed.