1. I do not think it necessary for the purpose of the disposal of these revision petitions to express any final opinion on the effect of Ex. 1 on the status of the family consisting of defendant 1 and his sons, defendants 2 and 3. It is sufficient for the present merely to say that the authority of the decision in Appa v. Ranga (1883) 6 Mad 71 has been questioned by a Division Bench of this Court in Jagannadha Rao v. Viswesam 1924 47 Mad 621 and the matter may have to be reconsidered when it becomes necessary to decide that question. Mr. Govindarajachari on behalf of the petitioners contends that the present case is on all fours with the case in Veerappa Chettiar v. Annamalai Chettiar 1985 68 MLJ 157. I am not prepared to agree with him. The releasing co-parcener had in that case taken a share for himself though a much smaller share according to the creditor's contention that he would have been entitled to in a bona fide partition. It was therefore possible for the Court in that case to say that there was a division in status, though it may be open to the creditors to insist that the releasing co-parcener should have been allotted a larger share. In the present case Ex. 1 was executed practically as part of the arrangement between defendant 1 and his father under Ex. 2. Defendants 2 and 3 are not specifically referred to in Ex. 2, but properties which are allotted to the defendant 1 under Ex. 2 as representing his share are under Ex. 1 released in favour of defendants 2 and 3 with the grandfather as their guardian. The reason is recited in Ex. 1 as follows: 'For the fear that I may contract debts and that I may waste all the properties.' This reason will as much justify a mere divesting of defendant 1's rights in the properties dealt with under Ex. 1 as a division in status between defendant 1 on the one hand and defendants 2 and 3 on the other.
2. It is sufficient for the purpose of this case to say that Ex. 1 undoubtedly operates to divest defendant 1 of all rights he had in the properties covered by Ex.1 and make them the separate properties of defendants 2 and 3. As the present plaintiffs became creditors long after the date of Ex. 1, it is unnecessary to consider whether, construed as above Ex. 1 may or may not be open to impeachment by the then creditors of defendant 1 on the ground that no provision has therein been made for the discharge of existing debts. I will only add, to avoid any misapprehension, that in dealing with the possibility of defendants 1 to 3 having any other property joint between themselves by reason of any subsequent acquisition it must be borne in mind that acquisitions made only out of the income of the properties covered by Ex. 1 cannot be regarded as their joint properties because I have held that the properties covered by Ex. 1 are the separate properties of defendants 2 and 3. I would accordingly vary the decree of the Court below by substituting the words joint family properties of defendants 1 to 3 if any exist after excluding those covered by Ex. 1 and the acquisitions made out of their income in place of the words 'joint family properties' after the reference to defendants 2 and '6. Defendants 2 and 3 will be liable for the costs here and in the Court below only if there are joint family properties of the kind above indicated and the costs will then be paid out of them.