JUDGMENT

Rafique, J. - It appears that Maharaj Singh and his son, Ram Chandra alias Ratan Singh, were members of a joint undivided Hindu family and had some joint family property. Daring the time that the family was joint, a certain item of property was acquired by right of pre-emption. On the 27th of February 1903 Maharaj Singh executed a tamliknama in favour of his son Ram Chandra in respect of the said property. On the 12th of December 1914 Mathura Prasad and Parbhu Dayal obtained a decree for their share of profits in m certain village against Maharaj Singh. In execution of that decree they attached the property that had been conveyed by the tamliknama of the 27th of February 1903 to Bara Chandra, the son of Maharaj Singh. He objected to the attachment on the ground that the property attaahed belonged to him. The objection was disallowed on the 7th of July 1917. There upon the suit out of which this appeal has arisen was instituted by Ram Chandra against the decree-holders, Mathura Prasad and Parbhu Dayal, for a declaration that the property sought to be attached by them was not liable to attachment and sale in execution of their decree. The claim was resisted on various grounds. It was urged on behalf of the defence that the tamliknama relied upon by the plaintiff conveyed no title to him inasmuch as the property, the subject of the tamliknama, was part of the joint family property and the family being joint one member of it could not transfer any portion of the joint property to the other. Moreover, Section 53 of Act IV of 1882 was also pleaded in bar of the claim. The Court of first instance dismissed the claim. On appeal the decree of the first Court was affirmed. In second appeal to this Court it is contended on behalf of Ram Chandra that the defence u/s 53 of Act IV of 1832 is not open to the defendants, inasmuch as they did not bring, as they ought to have brought, a regular suit to have it declared that the tamliknama of the 27th of February 1903 was inoperative and not binding against the creditors of Maharaj Singh. This contention is based on the case of Subramania Aiyar v. Muthia Chettiar 43 Ind. Cas. 631 : 41 M. 612 (F.B.) : 6 L.W. 750 : 33 M.L.J. 705. The contention for the plaintiff appellant is, no doubt, borne out by the case relied upon by him but it appears to me that, on the findings of the Courts below, this appeal can be disposed of without expressing an opinion on the question whether the defence u/s 53 of Act IV of 1882 is open to the defendants in the present case. It has been found by the lower Appellate Court that Maharaj Singh and Ramchandra were members if a joint undivided Hindu family at the item that the tamliknama was executed and that the property conveyed by the said deed was part of the joint family property. Under these circumstances, the deed of the 27th of February 1903 was an invalid deed that conveyed nothing to Ramchandra, A member of a joint undivided Hindu family cannot legally transfer a portion of the joint family property to another member of the family. The transfer being, therefore, merely a paper transaction, under which no interest passed to the transferee, the case relied upon by the learned Vakil for the plaintiff appellant is not in point. The plaintiff cannot, therefore, maintain the present suit on the basis of the deed of the 27th of February 1903. The conclusion arrived at by the lower Appellate Court, in my opinion, was a correct one and I would dismiss the appeal.

Stuart, J.

2. While concurring with the decision of my learned colleague, that the finding to the effect that the property, which the tamliknama purported to transfer, was the joint property of a joint Hindu family governed by the Mitakshara Law, is fatal to the success of the appeal, I think it advisable to note a decision on two legal points, which have been argued by the learned Vakil for the appellant. The first point is this. He argued that, inasmuch as the debt due from Maharaj Singh which formed the b