1. This is an, independent appeal arising out of the same suit as Appeal Suit No. 14 of 1905. The present appellant is the plaintiff in the original suit, and only two contentions have been argued before us. (1) That he is entitled to recover his share of the areca nut trade from defendants Nos. 2, 8 and 12, that the one-twelfth share of the family property which accrued to him by survivorship on the death of the 3rd defendant must in any case be held free of the 8th defendant's attachment.
2. The first point has been dealt with by the Subordinate Judge in paragraph 22 of his judgment, and, in our opinion, rightly decided, against the plaintiff. His claim depends solely on the interested evidence of his own father, the 1st defendant, and an abstract of accounts said to have been prepared by him: and no explanation is offered for the failure of the plaintiff and the 1st defendant to claim the money due to them long ago, especially, when it was so badly needed. The areca nut trade admittedly ended in 1890: and the present claim is long time-barred as against the 8th defendant at any rate.
3. In support of his second contention, the appellant relies solely on the view expressed in Zamindar of Karvetnagar v. Trustee of Tirumalai Tirupati etc.; Devastanams 32 M. 429 : 2 Ind. Cas. 18 to the effect that an attachment in execution of a decree does not operate to create a charge and gives an attaching creditor, no higher right that to have the property kept in Custodia legis pending determination of his right.
4. The observations in Zemindar of Karvetnagar v. Trustee of Tirumalai Tirupati etc., Devastanams 32 M. 429 : 2 Ind. Cas. 18 were made with reference to the question whether, in the circumstances which had arisen in that case, judgment-creditors who had obtained orders of attachment were in a stronger position than judgment-creditors who have not obtained orders of attachment. We are not prepared to say that these observations are applicable to a case like the present where the suit is for partition and the question for determination is the rights of the members of the family in which the partition is made.
5. The appeal will, therefore, be dismissed with costs.
6. The memorandum of objections filed by the 9th respondent (12th defendant) relates to items Nos. 199 and 100 which the Sub-ordinate Judge found to constitute a charitable endowment. For reasons set forth in the judgment in Appeal Suit No. 14 of 1905, we find the endowment not to be proved, and the items to constitute part of the joint family property. The plaintiff's contention that the sale by Exhibit VIII was fictitious and void of consideration has been decided against by the Subordinate Judge. It follows that the plaintiff (appellant) is entitled to no relief regarding these items; and he must pay the 9th respondent costs in both, the Courts.