Bavdekar, J. - (1.)THIS is an appeal from a suit which was filed by the plaintiff on behalf of himself and other creditors of defendant 6. The plaintiff said that, at the time when the salt was filed, there were two debts due to him from defendant6. The first was a debt incurred by defendant 6's wife, Mahalaxmi, who died before the present suit was filed. The debt was incurred by Mahalaxmi upon mortgage of property which belonged to her as her absolute property. But on the date upon which the mortgage was executed by Mahalaxmi, defendant 6 executed a surety bond under which he agreed to pay the plaintiff the amount of the debt of the mortgage in case Mahalaxmi did not pay it. The actual bond, which was executed by defendant 6, is not before us because the plaintiff said that he had lost it. But the plaintiff proved another bond executed by defendant 6 in lieu of the lost bond, which supports the contention of she plaintiff. Under this bond, defendant 6 again undertook the liability of paying the plaintiff his debt due from Mahalaxmi in case she did not pay it. The second debt which the plaintiff said was due to him was upon a mortgage executed by defendant 6 and the eldest son of defendant 6, defendant 3, the document being actually executed by defendant 6, on behalf of both on 90th February 1930, defendant 3 being then a minor.
(2.)THE plaintiff had sued Mahalaxmi and defendant 6 upon the first debt, and he had obtained upon it a decree which was composite. In the first instance, it directed the sale of the property which was mortgaged by Mahalaxmi in payment of the debt due upon the mortgage. In the second instance, it gave the plaintiff liberty to apply, in case the proceeds of the mortgaged property were not sufficient, for a personal decree against both Mahalaxmi and defendant 6. THE property which was mortgaged by Mahalaxmi was sold in accordance with the decree in 1937, and there was a deficit. THEreupon, the plaintiff applied for a personal decree against both Mahalaxmi and defendant 6, on 1st September 1938, and obtained it on 14th August 1939 the amount of the decree being Rs. 1,800 and odd.
Upon the second mortgage bond, the plaintiff filed a suit No.60 of 1939 and obtained a preliminary decree against defendant 6 and defendant 3 on 29th October 1942.

The plaintiff's case was that, after the sale of the property mortgaged by Mahalaxmi, but before the date of his application for a personal decree against defendant 6, defendant 6, his sons defendants Nos. 3, 4 and 5, and another wife of defendant 6 partitioned the joint family properties inter se, giving to the share of defendant 6 only one fifth of the joint family property, which was, as a matter of fast, at the date of the partition only the house which was mortgaged by defendant 6 and defendant 3 on 20th February 1930. The plaintiff claimed that this mortgage (sic) was fraudulent of himself and his creditors. He also claimed that a mortgage subsequently executed by the sons and the other wife of defendant 6, in favour of defendant 1, the son in law of the defendant 6, was also fraudulent of the creditors. The plaintiff claimed that even though the mortgage purported to be executed for an amount of Rs. 4,000 --Rs. 2300 alleged to have been paid to one Bhailal for his dues and Rs. 1,700--being the consideration due to defendant 1, upon previous debts--as a mater of fact there was nothing due to Bhailal or to defendant 1 and that only documents were brought into being at the time when the partition was effected and the mortgage in favour of defendant 1 was executed in order to shield the property of the sons against the creditors. It is true that the debt which the the plaintiff said was due from defendant 6 upon the surety bond was a debt due to him only from defendant 6. It is also true that the decree which the plaintiff ultimately obtained upon the mortgage executed by defendant 6 and defendant 3 was against those two defendants only. But the plaintiff's case was that the first debt was not for legal necessity, but it was not avyavaharik. The second debt was, as a matter of fact, for legal necessity, being incurred for debts due from defendant 6 at the time of the mortgage. The plaintiff said that, consequently, under the pious obligation of a Hindu son to pay the debts of his father which are not avyavaharik, the joint family property of defendant 6 and his sons was liable for the debts due to him, and the partition was effected in order to save the shares of the sons and the other wife of defendant 6 from the claims of the plaintiff and other creditors.

(3.)THE contentions of defendant 1 who is the principal contesting defendant, was that it was not true that the partition was effected and a mortgage executed in his favour by the sons and the other wife of defendant 6 in order to defraud the plaintiff or other creditors. Defendant 1 said that he had paid in cash Rs. 2,300 to Bhailal, the creditor of the family, on the date upon which the mortgage in his favour was executed, and he said that the remaining consideration was in respect of monies already borrowed by defendant 6 from him upon a promissory note dated 22nd February 1936.
The learned trial Judge came to the conclusion that the plaintiff was a creditor of defendant 6 in respect of both the debts. He said, however, that the other sons were not parties to the suits which had been filed by the plaintiff. Defendant 3 was a party to the suit upon the mortgage of 20th February 1930, but the other sons were not parties even to that suit. He said that, at the time when the plaintiff filed his present suit, a suit against the sons in respect of the liability of defendant 6 upon the mortgage bond was barred by time. A suit by the plaintiff against the other sons upon the mortgage was in time because of an acknowledgment dated 22nd December 1938, written by defendant 6 which amounted to a promise in writing to pay a time, barred debt, bat all the same he nonsuited the plaintiff because it was his view that the partition was a bona fide partition. He said that so far as the liability of defendant 6 under the surety bond was concerned, no one thought at the time when the partition was effected that there would be any deficit after the property which was mortgaged by Mahalaxmi to the plaintiff was brought to sale. He said, secondly that so far as the mortgage executed by defendant 6 and defendant 8 in favour of the plaintiff was concerned, arrangement was made by the partition deed for the payment of the mortgage. He, therefore, came to the conclusion that the plaintiff had failed to establish that the transactions of partition and mortgage in favour of defendant 1 were fraudulent.