The appellant in this second appeal filed Small Cause Suit No. 644 of 1940 in the Court of the District Munsiff of Ambasamudram against one Krishna Pillai on a promissory note executed by him and obtained a decree. The appellant sought to execute his decree by attaching the properties set out in the schedule appended to the present plaint. The first defendant in this suit who is the first respondent in the second appeal filed a claim petition objecting to the attachment on the ground that the suit property fell to his share in a family partition entered into between Krishna Pillai his father, himself and his brother Arumugham Pillai who is the second defendant in the present suit and the second respondent in the second appeal. The claim petition was allowed and the attachment was raised. The appellant thereupon filed the suit out of which this second appeal has arisen alleging that the partition relied upon by the first defendant was entered into with intent to defraud the creditors of Krishna Pillai. The suit was filed by the plaintiff on behalf of himself and the other creditors of Krishna Pillai No objection to the frame of the suit can therefore be taken and if the plaintiff establishes that the partition was fraudulent as he alleged, he would be entitled to relief to the extent stated below. The District Munsiff of Ambassamudram who tried the present suit dismissed it holding that the plaintiff did not succeed in making out that the partition in question was in fraud of the creditors of Krishna Pillai. This judgment was affirmed by the Subordinate Judge of Tinnevelly.

In this second appeal filed by the plaintiff his advocate Mr. T.L. Venkatarama Aiyar has argued that the findings of the Courts below in regard to the character of the partition cannot be sustained as the matter was not viewed from the proper legal standpoint by either Court. He contends that according to the latest pronouncement of our Court in the case in K.S. RM. Firm v. Subbiah1:

“If a partition is unequal and the father is allotted a smaller share than would be his due with intent to defeat the creditors, the latter can avoid the partition under section 53 of the Transfer of

Property Act and proceed against what would be his proper share in the family properties in exe-

cution of the decree obtained against him ignoring the allotment of the properties at the partition.”

Whatever doubts might have existed in regard to the complicated positions which arise in cases where partitions are effected between a Hindu father and his sons at a time when the father is indebted, all those doubts must in my opinion, be said to have been cleared by the decision I have just referred to. If I may say so with respect, the enunciation of the law by Wadsworth and Patanjali Sastri, JJ., in that decision in the form of certain propositions of law has elucidated and defined the rights of creditors as against their debtors and their sons That decision fully supports the contention raised on behalf of the appellant. The particular proposition on which Mr. Venkatarama Ayyar relies is set down as paragraph (a) on page 146 in the I.L.R. Vol. It is unnecessary to set it out here, as I have already indicated its scope and effect.

So far as the findings of the Courts below are concerned, it seems to me that both Courts failed to look at the transaction from the proper legal standpoint. The question which they should have put to themselves is whether sufficient property was allotted to the father with which he could discharge his debts. The manner in which the Courts below viewed the matter is this. They asked themselves whether the property that was allotted to the first defendant was sufficient for the discharge of the debts which he had undertaken to discharge and similarly with regard to the second defendant also. Putting this question to themselves, they held that the debts which each of the defendants was called upon or had undertaken to discharge were less than the properties