1. On the 7th September, 1932, the appellants filed a partition suit against their father. Subsequently, he was adjudged an insolvent on an insolvency petition filed by a creditor on the 26th June, 1933. On the 1st August, 1933, a preliminary partition decree was passed in the partition suit; and on the 21st September, 1934, the decree became final. The Official Receiver thereupon filed an application under Section 53 of the Provincial Insolvency Act to set aside the partition decree on the ground that it was fraudulent and collusive. His application was also under Section 4 of the Act, in that he asked in the alternative that the partition which was grossly unfair and intended to screen as much property as possible from the creditors might be re-opened. The application was dismissed. In appeal, the learned District Judge held the opposite view; arid finding that the suit was a collusive one he set it aside under Section 53 of the Act. He did not find it necessary to give any finding on the other point, which would have arisen only in case the Official Receiver failed on the main point.
2. The learned advocate for the Official Receiver has raised a preliminary point that no appeal lies. Section 75 (1) makes the order of the District Court final except that a person 'aggrieved by a decision of the District Court on appeal from a decision of a Subordinate Court under Section 4 may appeal to the High Court on any of the grounds mentioned in Sub-section (1) of Section 100 of the Civil Procedure Code.' The application in this case was one under Section 4 as well as under Section 53; and it is possible to say that the appellants were aggrieved by the decision of the District Court on appeal from the decision of the Subordinate Court under Section 4. But if that interpretation were given to the proviso, it would mean that the first 'decision' in that proviso might be with regard to a point altogether different from that which is the subject of the other decision. It hardly seems possible that the Legislature could have intended that the two decisions referred to in the proviso should be on entirely different points and that a decision of the District Court on some matter that had nothing to do with Section 4 should be appealable because in the original application a relief under Section 4 had been linked with one under Section 53. It seems reasonable to suppose that the Legislature intended that only decisions under Section 4 should be the subject of second appeals. I therefore hold that no second appeal lies. As this appeal may be said to involve a question of law, I convert it into a civil revision petition.
3. One of the points in dispute before the District Judge was whether a fraudulent and collusive decree can be set aside under Section 53; but it is concede in this Court that it can. As to whether the partition effected by the suit was fraudulent and collusive or not is a question of fact. The learned District Judge has given very cogent reasons--in paragraph 6 of his judgment in particular--why he feels sure that the object of this suit was to screen property from the creditors. I have seen the judgment in the partition suit. Although the father put in a written statement saying that the debts were not incurred for illegal or immoral purposes, he seems to have contested the suit no further. The case is discussed in three short sentences. They run:
The only objection is as regards the C Schedule which consists of utensils and other household articles. They are in the house and are divisible. There cannot under the circumstances be any objection to the partition.
The father said nothing of the many debts due, presumably in order that his sons might get two-thirds of the property free from liabilities. It is therefore clear that the father and the sons did join together in order to screen family property from the creditors.
4. I agree with the learned advocate for the appellants that it does not necessarily follow that because the father and the sons colluded to screen as much property* as possible from the creditors that they did not intend to effect a division in status; but that question too is one of fact that was not raised clearly by the appellants in the Courts below. It however seems pretty clear that the learned District Judge was definitely of opinion that the suit was brought not for the purpose of effecting a partition, whether of status or of property; but for the sole purpose of screening the property from the creditors. I am not prepared to say that there was any desire on the part of minors or those who represented them to effect a division in status between them and their father.
5. The revision petition is dismissed with costs.