After a genuine partition, the father's power to dispose of the sons' shares is terminated, and the sons' shares are not liable for attachment in execution of the father's debts.

Varadachariar, J.

1. This second appeal arises out of a suit instituted by the legal representatives of a decree-holder to get a claim order set aside.

2. The father of the plaintiffs obtained a money decree against the first defendant on 17th September, 1926 on three promissory notes executed by the first defendant, Exs. D, D-1 and D-2. Between the dates of Exs. D and D-1 a partition arrangement was entered into between the first defendant and his sons, defendants 2 to 5. {Vide Ex. V, dated 13th October, 1925.) It is alleged that the plaintiffs father was not aware of this partition and so happened to make further advances to the first defendant under Exs. D-1 and D-2 in the course of November and December 1925. The suit, O.S. No. 1400 of 1926, was instituted for the recovery of money due under these three promissory notes but the first defendant alone was impleaded as defendant thereto and a decree was obtained in due course. When the plaintiffs proceeded to attach certain properties in execution of this money decree the defendants 2 to 5 came forward with a claim petition and prayed that the properties which had fallen to their shares under Ex. V should be released from attachment. As the properties were accordingly released, the plaintiffs filed this suit to obtain a declaration that they are entitled to attach the properties which the defendants 2 to 5 claimed to have fallen to them in the partition.

3. The question for determination is whether, in spite of the partition evidenced by Ex. V, the shares taken by defendants 2 to 5 are liable to be proceeded against in execution of the money decree obtained against the father alone. I have dealt with this question at some length in a judgment recently delivered by me in Thirumalamuthu Adaviar v. Subramania Adaviar AIR1937Mad458 and I do not propose to repeat what has been said there. I shall only add that the case for the decree-holder was much stronger in that case than in the present instance because in that case I proceeded on the footing that the partition was entered into with a view to defeat the creditor.

4. Whatever may be the rights under the Hindu Law of a fathers creditor to secure satisfaction of the debts due by the father from the sons shares in the joint family, the question arising for determination in this second appeal has to be decided with reference to the language of Section 60 of the Civil Procedure Code. In order that properties may be liable to attachment in execution, it must be shown that they either belong to the judgment-debtor or that the judgment-debtor has a disposing power over the properties or their profits, which power he may exercise for his own benefit.

5. It is well settled and the proposition has now been placed beyond doubt by the observations of their Lordships of the Judicial Committee in Sat Narain v. Rai Bahadur Sri Kishen Das (1936) 71 M.L.J. 812 : L.R. 63 IndAp 384 : I.L.R. 17 Lah. 644 that the fathers power of sale for his debts exists only so long as the joint family remains undivided. Their reference with approval to the decision of this Court in Baluswami Aiyar, In re (1928) 55 M.L.J. 726 : L.R. 51 Mad. 417 , shows that even a division in status will suffice to put an end to this power. It would therefore follow that after a division in status the fathers creditor cannot, any more than the Official Assignee, claim that the property is saleable by the father and therefore attachable by himself. That the position is different as regards the creditors remedy by independent suit against the sons has been recognised by the judgment of a Full Bench of this Court in Subramania Aiyar v. Sabapathy Ayyar (1927) 54 M.L.J. 726 : I.L.R. 51 Mad. 361 . Having regard to this well-understood distinction between the creditors remedy in execution and the creditors remedy by a separate suit, we are with due respect unable to follow the observations which were cited to us from certain decisions of the other High Courts which either ignore this