Musammat Bibi Saira vs Bibi Saliman and Others

Coutts, J.—This appeal arises out of a suit brought by one Musammat Bibi Saira for declaration of her title to 5 annas 17-pandas share in Mouza Jalalpore on the basis of two baimukassa deeds executed by her husband, Zafar Hussain, in lieu of dower and of a deed of gift executed by her husband''s grandmother. The facts of the case are not disputed and are shortly as follows: Zafar Hussain and his two sisters executed a mortgage-deed in favour of defendant No. 1 in 1901. The defendant-mortgagee in 1912 sued on the bond. One of the sisters died in June 1913 and on the 26th of that month the Court ordered Bibi Dargahan, Zafar Hussain and the other sister to be substituted. On the same date, viz., the 26th June, the first baimukassa deed was executed by Zafar Hussain. By it he conveyed to hit wife in lieu of dower the share he inherited from his Deceased sister. On the 14th July Bibi Dargahan executed the deed of gift and on the 13th August the mortgagee obtained a money decree for Rs. 3,000. Zafar Huesain''s other sister died on the 12th October and on the 26th October Zafar Hussain executed the second baimukassa, by which he conveyed to big wife in lieu of dower the share of the sister who died on the 12th of October. In 1914 the mortgagee defendant No. 1 applied for execration of his decree and in the course of these proceedings 16-annas share of Mouza Jalalpore was attached. Musammat Bibi Saira, on the strength of her baimukassas and deed of gift, made a claim in respect of 5 annas 17 gandas of the Mouza, The claim was dismissed and the decree-holder-mortgagee (defendant No. 1) purchased the Mouza. The plaintiff brought the present suit for a declaration of her title on the basis of the deed of gift and the two baimukassa deeds. The suit was dismissed in the Court of first instance and the decree of that Court was upheld on appeal to the District Judge, who found that the deeds were merely colourable transactions and that the plaintiff had never been in possession of the property. The plaintiff has again appealed to this Court.

I will consider first the baimukassa deeds. The contention of Mr. Manuk for the appellant is that on the findings of fact which have been arrived at by the learned District Judge, he is entitled to succeed. The learned District Judge has found that the consideration for the baimukassa deeds is a deferred dower debt of Rs. 4 ,000, and that this debt is a good consideration. This being be, it is argues that Section 53 of the Transfer of Property Act applies to the case and that as the defendant has not established a fraudulent intention, the plaintiff is entitled to succeed. On the other hand, it is con tended for the defendants respondents that there was in fact no transfer at all and that consequently Section 53 of the Transfer of Property Act does not apply. Further it is contended that even if it does apply, a fraudulent intention has been established.

The learned District Judge has said that the deeds are merely colourable transactions. What he means by this is not quite clear, but if he means that the transactions are not transfers at all, he is clearly in error because he bas found that the consideration is a dower debt, that it was a debt due at the time when the documents were executed and that the consideration is good. In these circumstances the utmost that might be contended is that the transfers were merely benami transactions. If this be contended, however, the case comes within the scope of the decision in Mina Kumari Bibi v. Raj Bijoy Singh Dudhuria 40 Ind. Cas. 242 : 21 C.W.N. 585 : 1 P.L.W. 425 : 5 L.W. 711 : 32 M.L.J. 425 : 21 M.L.T. 344 : 15 A.L.J. 382 : 25 C.L.J. 508 : 19 Bom. L.R. 424 (1917) M.W.N. 473 : 44 C. 662 : 44 I.A. 72 where their Lordships of the Privy Council pointed out that a complete answer to a contention of benami in a case similar to the present case was that the debt was due. The transaction, therefore, was not a benami one.

There remains then only the question of whether the transfer was with a fraudulent intention and in this connection we must first consider the question of onus. The question of onus in another case brought by Musammat Bibi Saira against another decree holder in respect of the first of these baimukassa deeds bas already been considered in this Court and the case is reported is Bibi Sairah v. Musammat Golab Kuar 53 Ind. Cas. 892 : (1919) Pat 409. In that case, following the decisions of the Calcutta High Court, it was held that where there has been a claim which has been rejected in execution proceedings the onus lies in the first instance on the plaintiff, and it is conceded by Mr. Manuk that this is the correct view of the law. He contends, however, on the authority of Mina Kumari Bibi v. Raja Bijoy Singh Dudhuria 40 Ind. Cas. 242 : 21 C.W.N. 585 : 1 P.L.W. 425 : 5 L.W. 711 : 32 M.L.J. 425 : 21 M.L.T. 344 : 15 A.L.J. 382 : 25 C.L.J. 508 : 19 Bom. L.R. 424 (1917) M.W.N. 473 : 44 C. 662 : 44 I.A. 72 , that the onus is discharged as soon as he establishes that the transfer is for good consideration, and as authority for his contention he refers to Mina kumari Bibi v. Raja Bijoy Singh Dudhuria 40 Ind. Cas. 242 : 21 C.W.N. 585 : 1 P.L.W. 425 : 5 L.W. 711 : 32 M.L.J. 425 : 21 M.L.T. 344 : 15 A.L.J. 382 : 25 C.L.J. 508 : 19 Bom. L.R. 424 (1917) M.W.N. 473 : 44 C. 662 : 44 I.A. 72 , where their Lordships said: "And even if the case for the decree-bolder be treated as raising the farther plea of a fraudulent transfer, this same admission operates strongly in the plaintiff''s favour." The onus then in the present case is on the defendant to establish a fraudulent intention, and ii is contended for the respondents that this bas been established. Now, the circumstances and the facts on which the learned District Judge has relied for establishing fraudulent intention are that Zafar Hussain was heavily in debs at the time of the execution of the baimukassa deeds, that he held no property with the exception of some wakf property, that in the course of the mortgage suit soon after the decree had been paused, he executed these deeds conveying various valuable properties to his wife, and finally that the plaintiff never held possession of the properties. It is true that Zafar Hussain was heavily in debt, that he held no property in his own name and that he transferred these properties during the mortgage suit or soon after the decree, and this being so, there is little doubt that by so doing he intended to defeat the claims of defendant No. 1 and possibly other creditors. But the transfer to his wife was for good consideration. It was a transfer which he was perfectly entitled to make and it amounted to nothing more than preferring one creditor to another. On these grounds, therefore, it is impossible to find a fraudulent intention within the meaning of the section. The only finding of the learned District Judge which would, in any way, show fraudulent intention is that the plaintiff was never in possession. But if we examine this, it really does not affect the case, Possession of the property could only be by collection of rent. It has been found that the collection of rent was done by the plaintiff''s husband, Zafar Hussain. Now the plaintiff is a purdanashin woman who could not possibly collect rents herself, and the circumstance that her, husband has collected the rents is as consistent with the view that he was collecting rents on behalf of his wife as that he was collecting rents on his own behalf. There is nothing then in the finding of the District Judge which would indicate a fraudulent intention.

During the argument in the case we have several times been referred to the decision in the case of Bibi Sairah v. Musammat Golab Kuar 53 Ind. Cas. 892 : (1919) Pat 409, wherein an exactly similar suit to the present one the plaintiff was unsuccessful, and we have been asked by the learned Vakil for the respondents to follow : that decision. On examining that case, however, I find that it was argued on the basis that the baimukassa deed was not in fast a transfer at all. The question whether it was a transfer or not was not apparently urged and consequently the decision in Mina Kumari Bibi v. Raja Bijoy Singh Dudhuria 40 Ind. Cas. 242 : 21 C.W.N. 585 : 1 P.L.W. 425 : 5 L.W. 711 : 32 M.L.J. 425 : 21 M.L.T. 344 : 15 A.L.J. 382 : 25 C.L.J. 508 : 19 Bom. L.R. 424 (1917) M.W.N. 473 : 44 C. 662 : 44 I.A. 72 was not considered.

So far then as the baimukassa deeds pre concerned, the plaintiff is, in my opinion, entitled to succeed.

There remains the question of the deed of gift. The deed of gift stands on an entirely different footing to the baimukassa deeds. It was executed by Musamma Bibi Dargahan shortly before the decree was passed against her, there was no consideration and. possession did riot pass, in these circumstances the ouns was heavily on the plaintiff and I accept the decision of the learned District Judge that the plaintiff is not entitled to succeed in so far as the property mentioned in this document is concerned.

I would accordingly modify the decree of the District Judge to the extent indicated in this judgment with costs proportionate to the success of the appellant.

Macpherson, J.

I agree. So far as the deed of gift executed by Musammat Bibi Dargahan is concerned, I do so without hesitation. The question as to the baimukassa deeds executed by Zafar Hussain in favour of his wife, the plaintiff-appellant, is, however, one of more difficulty. But upon consideration it does appear to be concluded by the findings of fact of the District Judge, which in this respect differ somewhat from the findings (by a different Judge) in the case of Bibi Sairah v. Musammat Golab Kuar 53 Ind. Cas. 892 : (1919) Pat 409, which case, moreover, was decided on the question of limitation. Having regard to the fasts ascertained in the present case and the decision of the Judicial Committee in Mina Kumari Bibi''s case 40 Ind. Cas. 242 : 21 C.W.N. 585 : 1 P.L.W. 425 : 5 L.W. 711 : 32 M.L.J. 425 : 21 M.L.T. 344 : 15 A.L.J. 382 : 25 C.L.J. 508 : 19 Bom. L.R. 424 (1917) M.W.N. 473 : 44 C. 662 : 44 I.A. 72 which was not brought to the notice of the Court in Bibi Sairah v. Golab Kuar 53 Ind. Cas. 892 : (1919) Pat 409, it cannot, I apprehend, be held in the present case that there was no transfer by the baimukassa or that the transfer, however reprehensible, was fraudulent.