Sheikh Muhammad Kabir and Another vs Shahdeo Sukul and Others

Dawson Miller, C.J.—In my opinion this appeal must be allowed, The plaintiffs brought this suit to have it declared that the defendants Nos. 4 to 11, against whom the defendants Nos. 1 to 3 had obtained a money decree, had no right, title or interest in certain property which was attached by the defendants Nos. 1 to 3 as decree-holders in execution of that decree. The facts of the case are shortly these, that the defendant No. 11, who was one of the judgment-debtors in the suit brought by the defendants Nos. 1 to 3, owned certain properties and amongst others the property in suit in this case. After the suit was instituted which was in September 1911 but before any decree had been made in that suit, the defendant No. 11, an old lady and grandmother of the plaintiffs, executed a deed of gift in favour of the plaintiffs, in respect to the property now in suit. It is not suggested that the defendant No. 11 was in straitened circumstances or that she was not able either at that time or at any time subsequently to pay off such creditors as she may have had, including the defendants Nos. 1 to 3. According to the findings of the Subordinate Judge it appears that in addition to the property in question she had a 5 annas 4 pies share in village Narainpur, a zarpeshgi right in village Fanusra, various sale certificates showing her right to certain kaskt lands and decrees standing in her name, and it does not appear that there is a word of evidence throughout the case to show that she was in any way unable to meet all her liabilities at the date when this decree was passed and when the property in question was attached, or at the time when she transferred the property by deed of gift to the plaintiffs in the year l912. In these circumstances the learned Subordinate Judge came to the conclusion that in the piesent suit the plaintiffs had made out their case and were entitled to judgment. There is another matter which I ought also to mention and that is this, that out of the total decretal amount of Rs. 1,092 the defendants Nos. 1 to 3 had already realised a sum of Rs. 768, leaving a balance of something less than one third of the total decretal amount still due.

When the matter came before the District Judge, be seems to have thought that the fact that the defendant No. 11 had plenty of other property out of which her creditors could be satisfied, was not a material matter to be taken into consideration in arriving at a conclusion as to whether the transfer was in fact one made with intent to delay or defeat creditors. He says that because the Subordinate Judge had based his decision upon a consideration of this question, he had entirely missed the whole point of the case and that the Judge of the trial Court had omitted to consider what the learned. District Judge said were the relevant dates in the case and that once you consider the relevant dates, it must at once in his opinion put the plaintiffs out of Court. Then he gives the dates which he considers relevant in this case. They are these, the suit out of which the decree arose was. instituted on the 20th September 1911, that is the suit by the defendants Nos. 1 to 3 against the remaining defendants. The defendant No. 11 filed her written statement on the 8th March 1912. The judgment was delivered on the 30th July 1912, the decree was made on the 31st July and the deed of gift is dated the 9th May 1912, that is after the filing of the written statement and before delivery of judgment. The Judge says when we consider these facts and also the fact that the father of the donees signed the written statement for the lady, it is impossible to hold that the deed was bona fide. He added: "No Court could look at a deed executed in such circumstances, and I am surprised to find an experienced Judicial Officer doing so."

It is difficult to see how the learned District Judge could possibly have come to the conclusion that this transfer in the circumstances of this case, where the lady was obviously in possession of ample funds out of which to pay off her creditors, must be taken to have been a fraudulent transaction or a transaction entered into with the object of defeating her creditors, merely because it took place at a date when a suit was pending against her. There is absolutely nothing in the provisions of Section 53 of the Transfer of Property Act, nor indeed in any other Statute or law that I am aware of, which prevents a defendant in a suit from transferring either for consideration or voluntarily his property to another, unless the effect is shown to be that the creditors are defeated or delayed. The only evidence upon which the learned Judge has some to the conclusion that this is a transfer in order to defeat creditors is the fact that the transfer took place when a suit unconnected with the transferred property was pending, and it almost looks as if the learned Judge in considering the effect of Section 53 of the Transfer of Property Act, if indeed he did consider it, was mixing it up in his own mind with the preceding section, vis., Section 52, but however that may be, it is quite clear that he based his decision upon evidence which was clearly no ground for arriving at the conclusion to which he came. He even goes to the length of saying that it makes no difference that the lady may have had other property. To my mind it makes all the difference in the world because if it is shown that the defendant in suit is well off, that is a very material circumstance in considering whether the transfer was governed by Section 53. In the present case there is clearly no evidence at all to support the conclusion arrived at by the District Judge and, in my opinion, this appeal must be allowed, the decree of the District Judge must be set aside, and that of the Subordinate Judge restored. The respondents have not appeared and the appeal is, therefore, allowed without costs.

Foster, J.

I agree.