Creditor’s right to proceed against join family property.

This is a second appeal preferred against the decree and judgment of the learned Subordinate Judge of Kakinada in A.S.No.207 of 1947, reversing the decree and judgment of the learned District Munsif of Peddapuram in O.S. No.232 of 1946.

The facts are:-The plaintiffs, sons of one Sitaramaswami, sued for possession of S.No.28/12, eastern portion 24 cents in extent, and recovery of Rs.30 towards past mesne profits on the foot of the following allegations; on 22nd September, 1937 and 7th January, 1936, Sitaramaswami executed two promissory notes to the second defendant K. Venkataratnam. On 7th March, 1939, the second defendant filed S.C.No.99 of 1939 against Sitaramaswami to recover the amount due under the Said promissory notes. During the pendency of this suit on 26th April, 1939, the minor plaintiffs, sons of Sitaramaswami, filed a suit for partition against Sitaramaswami in O.S.No.102 of 1939. On 17th August, 1939, S.C. No. 99 of 1939 Was decreed. On 20th November, 1939, the suit property was attached in execution. On 22nd April, 1940, a preliminary decree was passed in the partition suit to the effect that A and C schedule properties were to be divided into three shares and that the plaintiffs were to be put in possession of two shares. On 30th April, 1940, there was a sale in Court auction of suit item in favour of the 1st defendant, the brother of the 2nd defendant and the decree-holder in S.C.No.99 of 1939. On 20th September, 1940, final decree was passed in the partition suit in I.A.No. 576 of 1940 and plaintiffs were allotted lots A and C and the defendant, therein, the father, was allotted lot B.S.No.28/12 is included in the C lot. On 19th November, 1940, Sitaramaswami was dead. On 13th December, 1940, the plaintiffs, sons of Sitaramaswami, took possession through Court of lots A and C. It is seen from Exhibit D-3 that the sons of Sitaramaswami, the plaintiffs have been impleaded as his legal representatives. On 9th February, 1941, the 1st defendant obtained delivery of possession of the suit item as he was the court auction-purchaser. The plaintiff’s sons reciting that they had been impleaded as L.Rs. of their deceased father filed E.A.No.229 of 1941 against the Court auction-purchaser for re-delivery. On 6th September, 1941, the petition was dismissed as not pressed. No suit was filed within one year thereafter. In 1946 the present suit had been filed for the reliefs mentioned above.

Three points which fall for determination are, viz., whether the sons’ suit must fail unless they can establish that the debt for which the decree was passed was for an immoral purpose as they have to do in a suit to set aside a money decree and secondly whether the suit is maintainable at all by reason of Order 21, rule 103, Code of Civil Procedure, and thirdly whether the decree-holder in S.C. No. 99 of 1939 was bound to institute a separate suit against the sons of Sitaramaswami in order to make the joint family properties in their hands liable for the decree debt.

Point 1.-The plaintiff’s suit for partition O.S.No.102 of 1939 was filed on 26th April, 1939 and it was decreed only on 22nd April, 1940. A suit by a minor for partition if it ends in a decree its effect is to create a division of status from the date of the plaint, even though only a preliminary decree has been passed. But the mere filing of the suit by a minor; does not effect severance of his interest from the joint family, even though the suit has been filed both by the father and his minor son for partition against the other coparceners, because where a suit has been instituted for partition on behalf of a minor, what the Court has to find is whether the partition is for the benefit of the minor and if it is satisfied that a decree for partition is in the minor’s interest, the Court’s duty is to grant a decree. But if the Court finds that the partition will not be beneficial to his interest or there is nothing like malversation or hostility on the part of the man