(1.) THE defendants 1 and 2 in O. S. 135 of 1961 on the file of the court of the subordinate Judge, Salem, are the appellants before this court, and they are mother and son. The third defendant I the suit is the husband of the first defendant and father of the second defendant. He was carrying on business on behalf of the family consisting of himself and his minor son and in the course of the business, he had incurred considerable debts. I. P. 22 of 1955 was filed by one of his creditors on 29-3-1955. before the Sub. Court, Salem for adjudging the third defendant as insolvent. Similarly, I. P. 27 of 1955 was filed before the same court on 22-4-1955, by another creditor for adjudging the third defendant as insolvent. In order to avert an adjudication in the said insolvency proceedings, the third defendants compromised with his creditors and executed Ex. A-19 on 24-91956, being a composition trust deed in favour of all his creditors constituting the plaintiffs in the suit, who are respondents 1 to 3 herein and defendants 4 and 5. who are respondents 5 and 6 herein, as the trustees authorising them to sell the suit properties and discharge the debts. I view of the execution of this composition trust deed, the insolvency petitions were terminated by a joint endorsement on 510-1956 and the petitions were dismissed on 6-10-1956.
(2.) AS against these proceedings, there were certain other parallel proceedings that went on. The first defendant and the second defendant,. represented by the first defendant, represented by the first defendant,. filed a suit in forma pauperis for maintenance, past and future for the first defendant and for partition and separate possession of his share of the family properties for the second defendant and for a charge on the third defendant's share of the family properties for the maintenance to be awarded in favour of the first defendant. Prior to this, a petition to sue in forma pauperis was filed on 19-1-1955. The said petition was returned on 25-11955, for curing certain defects. However, the first defendant did not represent the petition. But subsequently it was represented on 9-11-1955, with an application to excuse the delay. The first defendant's counsel has got back the pauper petition from the court on 12-2-1955, but did not present it till 9-11-1955. The petition to excuse the delay was opposed by the third defendant and ultimately it was dismissed on 14-8-1956. Thereafter, defendants 1 and 2 filed a fresh original petition, which was numbered as O. S. 32 of 1957 on 7-9-1956. In that suit the present third defendant remained ex parte, and the learned subordinate Judge, Salem, passed a preliminary decree for partition and subsequently a final decree in favour of the second defendant and for maintenance in favour of the first defendant and created a charge over the share of the third defendant for the said maintenance of the first defendant. item 1 of the present suit properties was allotted to the share of the second defendant and a charge was created over Items 2 to 4 which were allotted to the share of the third defendant for the maintenance of the first defendant. In execution of this partition decree, the second defendant obtained possession of the property which is said to have been taken possession of by respondents 1 to 3 and 5 and 6 herein, pursuant to the composition trust deed executed by the third defendant-4th respondent herein. The first respondent and one Krishna Chettiar obstructed the delivery of possession of Item 1 to the Second defendant and the court by removing the obstruction passed the order of delivery in R. E. A. 15 of 1960 in R. E. P. 221 of 1959 in O. S. 32 of 1957 on the file of the Sub. Court, Salem. It is, thereafter, respondents 1 to 3 herein representing the body of creditors instituted the present suit, namely, O. S. 135 of 1961 on the file of the court of the Subordinate Judge, salem, for declaration of title to all the four items of properties in the plaint schedule and for possession of Item 1 of the properties, after setting aside the order in R. E. A. 15 of 1960 in O. S. 32 of 1957 on the file of the court of the subordinate Judge, Salem. Their case was that the whole proceedings in O. S. was that the whole proceedings in O. S. 32 of 1957 were collusive and fraudulent; brought about by defendants 1 to 3 clandestinely and they are null and void. In view of the position, the rights which the creditors obtained under Ex. A-19, have not been in any way affected by those proceedings and therefore they are entitled to have delivery of possession of Item 1 and to have their title declared to all the four items of the suit properties. The case of defendants 1 and 2 was that the proceedings in O. S. 32 of 1957 were validly and bona fide instituted and the composition deed was executed during the pendency of that suit and therefore it is affected by the doctrine of lis pendens. The further case put forward on behalf of the second defendant was that on the institution of O. S. 32 of 1957 on the file of the Court of the Subordinate Judge, Salem, there was a severance in Status between the father and son and thereafter the father had no right to alienate the joint family properties and therefore Ex. A-10 is not bending on the second defendant. The learned Principal Subordinate Judge, Salem, came to the conclusion that all the debts in respect of which the composition trust deed was executed are family debts incurred by the third defendant as manager of the joint family and they are binding on the second defendant. he also came to the conclusion that O. S. 32 of 1957 on the file of the Court of the Subordinate Judge, salem, was nothing but a collusive proceeding and therefore the decree passed therein was a fraudulent and collusive one, and consequently the alienation made by the third defendant by way of Ex. A-19 in favour of his creditors was not hit by the doctrine of lis pendens. With regard to the claim put forward on behalf of he second defendant that on the institution of O. S. 32 of 1957 on the file of the Sub. Court, Salem, there was a severance in status brought about between the third defendant and the second defendant and therefore the father, the third defendant, had no power to alienate the joint family properties so as to bind the son, the second defendant, the learned Subordinate Judge, relied upon the judgment of this court in Gubbala Suryanarayana v. Gadiyapu Ganesulu, and concluded that the properties have passed out of the family by the execution of the composition trust deed, Ex. A-19, by the father, manager, before the preliminary decree in the partition suit. O. S. 32 of 1957, on the file of the Sub. Court, Salem, and the debts of the third defendant being antecedent and binding on defendants 1 and 2 and the second defendant being liable under the doctrine of pious obligation, the alienation of the entire properties is valid and binding on them. On the basis of these conclusions, the learned Subordinate Judge on 14-21964, decreed the suit of respondents 1 to 3 herein. Against this judgment and decree of the learned Subordinate Judge,. defendants 1 and 3 herein preferred an appeal to the District Judge, Salem, who by his judgment and decree dated 12-71965 dismissed the appeal and confirmed the judgment of the trial court. Since there is not much of a discussion in the judgment of the learned District Judge and he had more or less adopted the judgment of the trial court, it is unnecessary to say anything further with regard to the grounds on which the learned District judge dismissed the appeal preferred by the appellants herein. Hence the present second appeal by defendants 1 and 2.
(3.) BOTH for the purpose of Section 52 of the Transfer of Property Act and for the purpose of bringing about a severance in join status as between the coparceners, the presentation of the original petition for permission to sue in forma pauperis, which was subsequently numbered as O. S. 32 of 1957 on the file of the Sub. Court, Salem, has the same effect as the institution of the suit; and with reference to O. S. 32 of 1957 on the file of the Sub. Court, Salem, it is the presentation of the original petition that is referred to as the institution of the suit itself in the rest of the judgment.;