Full Judgment
Mukerji, J.
1. This appeal raises an interesting point and the facts are these Two brothers, Matin Khan and Amin Khan, were declared insolvents during the lifetime of their father Wilayat Ali Khan. Wilayat Ali Khan made a gift of his property, the property in question, in favour of his daughter Amina Begam. We take it that 'Wilayat Khan did not want that his property should go to the creditors of his insolvent sons. Amina Begam died on 15th December 1926. Five days before her death, it is said, Amina Begam executed a will in favour of the respondents who are the sons of her two insolvent brothers Matin Khan and Amin Khan. On the death of Amina Begam the receiver proceeded to attach the property which belonged to Amina Begam under the gift of her father. The two legatees, the respondents, came forward with an objection to the attachment. They said that they alone were the owners of the property under the will of their aunt. The receiver opposed the petition, his contention being that the will was a forgery. The learned District Judge found in favour of the will and released the property from attachment. Hence the appeal.
2. A preliminary point has been taken on behalf of the respondent that no appeal lies. We are of opinion that having regard to the provisions of Section 75(2) read with Sch. 1 an appeal is competent. The decision of the learned Judge is a decision on a question of title and an appeal is maintainable.
3. Before us the decision of the learned District Judge, as to the validity of the will, has not been contested. We must take it, therefore, that the will was actually executed by Amina Begam and attested by her brothers, the two insolvents, Matin Khan and Amin Khan. Amin Khan has since died. The question now is, whether the entire property should be released from attachment or whether only a third share, which alone Amina Begam could give away by means of a will if the two brothers had not been consenting parties. Section 53, T.P. Act, has no application. No rule of law which can be directly applicable has been quoted before us. We have therefore to proceed according to rules of justice, equity and good conscience.
4. It appears to us that the consent given by Matin Khan and Amin Khan amounts, in the circumstances of the case, only to this: They agreed to the will by which the property went to their sons because they knew that if they did not consent to the 'will the two-thirds share that they would otherwise get out of their sister's property would go to their creditors. The consent, in the circumstances, should not operate as a valid consent. We hold that two-thirds of the property should be available to the receiver for payment to the creditors. We allow the appeal in part, modify the decree of the Court below and direct that only a one-third share of the property be released from attachment. The parties will pay and receive their costs in proportion to their respective failure and success.