JUDGMENT

Ghulam Hasan, J - This is a second civil appeal by the plaintiff against the dismissal of his suit by the trial Court, whose decision was upheld, in appeal by the civil Judge of Fyzabad. It appears that on 10th September 1924, Mt. Ram Pyari, defendant-respondent l, obtained a compromise decree against Bachai for maintenance at the rate of Rs. 4-8-0 per month. The decree in question shows that Mt. Ram Pyari who is the paternal aunt of Bachai, sued Bachai for declaration that she was entitled to a certain share in the property. Under the compromise she relinquished her right to the property and agreed to take as maintenance Rs. 4-8-0, which was to be sent to her by money order every month. In default she was entitled to take out execution of the decree. It appears that default occurred in the payment of this maintenance allowance, and Mt. Ram Pyari had to attach joint family property in execution of the decree some time in 1931. 30th January 1932, the plaintiff-appellant who is the son of Bachai obtained a preliminary decree for partition against his father ' for one-third share in the joint family property. The plaintiff also filed objections to the attachment under Order 21, Rule 58, Civil P.C., but these were dismissed. The partition decree was made absolute on 14th May 1932. After this date certain applications were made by Mt. Ram Pyari for execution of the arrears of her maintenance. The plaintiff preferred objections and upon the dismissal of these objections he filed a suit, out of which the present appeal arises, for a declaration that the property attached by Mt. Ram Pyari in execution of her maintenance decree against his father, who was impleaded as defendant 2 in the ease, belongs to him and is not liable to attachment and sale in execution of the decree.

2. The substantial defence to the suit was that the plaintiff's property is liable for payment of the arrears of maintenance which accrued due against his father after the passing of the final decree for partition. The partition decree was also challenged as a collusive and fraudulent one. The learned civil Judge held that the partition decree is a genuine decree and was not obtained for the purpose of defrauding any one. He also held that the maintenance decree was passed in the year, 1924 before the plaintiff was born and the defendant-respondent was entitled to recover her maintenance allowance, being a preparation liability, by attachment and sale of the plaintiff's separated share. In second appeal before me, it is contended on behalf of the plaintiff-appellant that the liability for maintenance after the partition decree is a fresh liability for which the plaintiff's separated share in the property cannot be held responsible. I am, however, of opinion that this contention has no force. The liability under the compromise decree is a recurring liability which confers upon respondent 1 a right to realise the maintenance allowance month by month and in default of payment to take out execution therefor. I am not prepared to hold that this liability is a fresh liability incurred each time as it accrues and consequently the principle that a Hindu son is liable to discharge the pre-partition liability of his father does not apply to this case. In the view that I take of the case, this argument cannot be accepted. Raghavachariar in his well-known work on Hindu Law says at p. 297:

A long catena of recent decisions has now established that the son's share is liable even after his partition with the father for the latter's non-avyavaharika debts incurred prior to partition, and the argument, though plausible, that the father's creditor should not be held to be in a better position than the father himself and hence should not be allowed to proceed against the son's share when the father himself cannot touch it after partition, has not found acceptance.

3. It is also stated at p. 298 that:

Once it is established that the son is liable for the pre-partition debts o