A Hindu father can effect a partition during his lifetime without the consent of his sons, but the partition cannot be used to defeat or delay creditors.

Kapur, J.

1. This is a judgment-debtor-objectors appeal against the order passed in execution by the learned Commercial Subordinate Judge, Delhi, dated 6-10-1953 dismissing the objections under Section 47 Civil P. C.

2. A small pedigree-table will help in understanding the case:-

-

Rattan Devi : Mahadeo Parshad : Wife No. 1

Second Wife married |

_______|______

| |

Benarsi Das Chiranji Lal.

3 On 9-2-1952 the present decree-holders got a decree for Rs. 12,888/127- and costs against the judgment-debtors as legal representatives of the deceased Mahadeo Parshad on the basis of certain forward transaction relating to silver and in execution of that decree the decree-holders got attached two properties --house No. 460 in Gali Gishan Datt, Maliwara, Delhi, and 7 1/2 shares in the Lakshmi Chand Jaipuria Weaving and Spinning Mills situate in Sabzi Mandi. The objectors objections were that the attached property was hers and could not be made liable for the decree against her husband. She alleged that half of the house was under mortgage with Rai Sahib Ram Kumar and that on 28-10-1942 Mahadeo Parshad filed a suit for partition of the joint Hindu family property against his sons making the objector a party and she was allotted a share equal to the share of her husband and the joint family was thus disrupted and in lieu of that half share the property attached fell exclusively to the share of the objector by a deed of partition dated 12-6-1945 and had been in her possession ever since. In the alternative she alleged that she was entitled to maintenance and res dence under Hindu Law by reason of her being the widow of the deceased and therefore the property was not liable to attachment and sale. The Court raised the following issues:-

-

1. Whether the property in dispute fell to the share of the petitioner and on what terms?

2. If so, is the property liable to attachment and sale under Section 32, Civil, P. C.?

3. If this property was given in view of maintenance and right of residence, is it not liable to attachment?

4. Whether the partition in dispute was effected to defeat the creditors under Section 53, Transfer of Pro pcrty Act?

5. Relief?

The Court held that Mahadeo Parshad was heavily indebted at the time when the partition was effected between him and his wife in June 1945 and that Mahadeo Parshad had entered into many forward transactions of gold and silver the due date of which was 6-5-1943 in which he lost very heavily us a result of which he owed to the firm of Jamiat Rai Bishan Sarup Rs. 17,485/2/6, to Firm Fateh Chand Kishan Chand Rs. 9,143/8/- and to Finn Chunnu Mal Darbari Mill Rs. 19,000/-. He also held that because the partition was made at a time when Mahadeo Parshad was so heavily indebted, it amounted to transfer which was hit by Section 53, Transfer of Property Act. He also disallowed the claim to maintenance and the judgment-debtor-objector has come up in appeal to this Court.

4. Counsel submits that there was a partition between Mahadeo Parshad and his two sons and his wife which was as a result of the filing of the suit which was started on 30-10-1942 and which result-ed in a decree dated 4-5-1943. Under Hindu Law a partition could be effeteed by the father during his lifetime: see paragraph 323 of Mullas Hindu Law at page 422 where it is stated that for such a parti-tion the consent of the sons is not necessary: see also -- Nirman Bahadur V/s. Fateh Bahadur, AIR 1929 All 963 (A). In the petition which was made by the appellant it was not stated as what was the reason for the suit for partition. What counsel submits is supplied by the statements of witnesses who have appeared for the appellant, but I am unable to see any such evidence which would really support the case of the appellant. Chiranji Lal, her step-son, appeared as a witness, but he does not seem to say anything which assists the case of the appellant. In this case the facts are m