The main legal point established in the judgment is that a sale made in pursuance of a pre-existing contract to sell is not void against the attaching creditor, and the conveyance is considered as the fulfillment of an obligation already incurred and is not contrary to the attachment within the meaning of Section 64 of the Civil Procedure Code.

Varadachariar, J.

1. This appeal arises out of a suit instituted by the predecessor-in-title of respondents 1 to 5 for obtaining a declaration that he was the full owner of the suit properties and for setting aside an order passed on 14th September, 1931, dismissing a claim petition that he had filed. The suit properties belonged to a joint Hindu family which consisted of five brothers and the sons of four of them. Defendants 3, 4, 5 and 6 in the present suit are four of the brothers; another brother Sundararaja Aiyar had died before suit. Defendants 7 to 12 are the sons of four of the brothers. The appellants who were defendants 1 and 2 in the lower Court had obtained a decree for money payable by the five brothers personally and from out of the properties of the joint family in the hands of the five brothers and their sons. In execution of that decree, the appellants attached the interests of the sons in the joint family properties. This attachment which was made on 15th March, 1930, was advisedly limited to the interests of the sons, because, in the meanwhile, the five brothers had been adjudicated insolvents and their interests were being administered in insolvency. The present plaintiffs claim as against the attachment made by the appellants was based upon an alleged contract for the sale of the suit property to him for Rs. 30,000; it was stated that this contract had been entered into by defendants 3 and 4 and their deceased brother on 24th July, 1926. It was the plaintiffs case that in pursuance of this contract a sum of more than Rs. 28,000 had been paid to the vendors even before 12th April, 1927, the date fixed for the completion of the contract, that after the expiry of the time fixed, the vendors had been delaying the execution of the sale deed on account of certain domestic reasons, that in June, 1927, a creditor of the vendors presented a petition to adjudicate them insolvents, that accordingly the execution of the sale deed was further delayed and that finally under orders of the Insolvency Court passed on an application filed by the plaintiff claiming specific performance, a sale deed was executed by the Official Receiver on 6th November, 1931. The plaintiff further I alleged that, even before he became aware of the presentation of the insolvency petition, he had paid to the vendors the balance still remaining due, that he had already been put in possession of the property and had been in enjoyment thereof, that the moneys received by the vendors in pursuance of the contract of sale had been utilised by them for paying off family debts binding on the sons as well and that therefore the contract of sale and the sale-deed subsequently executed by the Official Receiver were operative to vest in the plaintiff the whole interest of the joint family in the suit properties.

2. The appellants, who were the contesting defendants, disputed the truth of the alleged contract of sale and the payment of consideration therefore and the binding character of the sale as against the sons. This question of fact was made the subject of the first issue in the case. The appellants further contended that in any event the sale-deed executed by the Official Receiver on 6th November, 1931, could not affect the rights of defendants 7 to 12 and that the plaintiff could not accordingly object to the appellants right to attach the interests of these defendants in the suit properties. This contention of law was raised by the 3rd issue in the case. Two further questions arose in the course of the discussion of the rights of the parties in the lower Court as to the exact position of defendants 7, 8 and 9 and their interests in the suit properties. Defendants 7 and 8 had been impleaded in the insolvency proceedings and the creditor sought to have them also adjudicated insolvents, but by a consent order they were exonerated on their agreeing that their interests in the properties of the family might be vested in the Official Receiver appoi