Rajamannar, C.J.-This appeal under the Letters Patent against the judgment of Raghava Rao, J., in S.A. No. 1851 of 1947, arises out of a suit brought by the Province of Madras in the Court of the District Munsif of Chingleput to set aside an order passed by the Court of the Subordinate Judge of Chingleput on a claim petition in the following circumstances; certain minors represented by their mother as next friend brought a suit in forma pauperis in the Court of the Subordinate Judge of Chingleput for the partition of alleged family properties against the father and grandfather of the minors and others. (The statement in the judgment of the learned Judge that the suit was brought by the second defendant as the next friend is not accurate). Pending the suit, the mother died, and the second defendant in the present suit was appointed next friend in her place. The suit (O.S. No. 72 of 1940) was not heard and disposed of on 9th August, 1940. When the case was called, the 2nd defendant, the next friend was not present, and the pleader appearing for the plaintiffs in that suit reported no instructions, and the suit was dismissed. The learned Subordinate Judge, after directing the plaintiffs to pay the costs of the defendants, ordered the next friend, i.e., the 2nd defendant, to pay Government Rs. 1,792-7-0 being the Court-fee payable on the plaint, as the suit had been instituted in forma pauperis. In execution of the decree for payment of the Court-fee the Government attached the family properties of the 1st and 2nd defendants, the 1st defendant being the son of the 2nd defendant. The 1st defendant preferred a claim under Order 21, rule 58, Civil Procedure Code, by an application, E.A. No. 148 of 1943, alleging that the defendants had become divided by a deed of partition, dated 20th October, 1941, at which certain properties were allotted to the shares of the two defendants severally and that the properties which had been attached were not liable to be proceeded against for the realisation of the Court-fee. The 1st defendant also alleged that he was not liable for the debt of the father, as it was not binding on him in law. The learned Subordinate Judge of Chingleput overruled the contention of the 1st defendant that the debt was not binding on him but allowed the claim petition on the ground that there had been a partition between the 1st defendant and his father. It is to set aside this order of the learned Subordinate Judge that the Government filed the present suit. The Government alleged that the partition relied upon by the 1st defendant was a sham and colourable transaction not intended to be acted upon and was a mere blind to screen the properties, if possible, from the creditors of the 2nd defendant. The 2nd defendant remained ex parte. The 1st defendant pleaded that the partition was bona fide and denied that it was fraudulent as alleged by the Government, and further stated that the Court-fee due to the Government was not a debt valid and binding on him under Hindu Law. The 3rd defendant, who had purchased the suit properties from the 1st defendant, adopted the written statement of the 1st defendant.

The learned District Munsif who tried the suit held that the partition was sham and nominal, but held that the 1st defendant was not bound to pay the Court-fee ordered to be paid by the 2nd defendant, as it was in the nature of a fine, to which the doctrine of pious obligation did not extend. He, however, rejected’ the contention on behalf of the 1st defendant that the debt was avyavaharika. In the result he passed a decree setting aside the order on the claim petition as regards the properties set out in Schedule B to the plaint, which the 1st defendant had claimed as having been allotted to his share at the partition and declared that the plaintiff’s right to proceed against the undivided share of the father, the 2nd defendant in all the joint family properties shall remain unaffected and that the 1st defendant’s undivided

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