SUMATHI Vs. KUNJUPENNU BHARGAVI
LAWS(KER)-1974-1-8
HIGH COURT OF KERALA
Decided on January 24,1974

SUMATHI Appellant
VERSUS
KUNJUPENNU BHARGAVI Respondents

JUDGEMENT

- (1.) THE plaintiff is the appellant in this second appeal. She sued her husband and his second wife for setting aside a claim order and for declaration that she is entitled to execute the decree in 1195/54 against the property which was assigned away by her husband the 2nd defendant in favour of his second wife the 1st defendant. O. S. 1195/54 was filed by her against the 2nd defendant for certain amounts due to her from him. That suit was decreed on 16-7-1960. In order to defeat her right and to obstruct the execution of her decree the second defendant effected a transfer of his property in favour of his 2nd wife. That was done during the pendency of O. S. 1195/ 54. The transfer was a mere sham without any consideration or bona fides. When attachment was taken out in execution of the decree the 1st defendant filed a claim petition and that was dismissed on 27-61964. From that order a revision (C. R. P. 972/64) was preferred to this court, and this court allowed the C. R. P. and set aside the order of the lower court dismissing the claim petition. It is to set aside that order passed in the C. R. P. that the present suit was filed. According to the plaintiff the transfer effected by the second defendant is a colourable transaction not intended to take effect and the property before and after the transfer continued to be in the possession and enjoyment of the 2nd defendant.
(2.) THE suit was contested by the 1st defendant alone. She stated that the decree in O. S. 1195/54 happened to be passed against the 2nd defendant since the suit was not conducted properly by the 2nd defendant. The decree was passed in september. 1960. The plaint schedule property with the buildings thereon were gifted to the 1st defendant on 20-10-55 and the document was executed by the 1st defendant in lieu of the money and movables given to the 1st defendant by her people at the time of her marriage. Even though the document is styled a gift deed it is in fact supported by consideration. On the date of the document itself possession was given to the 1st defendant. She is paying tax and enjoying the property. It is not liable to be attached for the second defendant's debts. The High court order passed in the C. R. P. is correct and is not liable to be set aside. At the time the document was executed the 2nd defendant had no debts and so it cannot be treated as a fraudulent transfer to defeat the creditors as alleged in the plaint. The land acquisition money for the portion of the property acquired by the government was received exclusively by the 1st defendant.
(3.) THE learned Munsif on a consideration of the evidence and circumstances of the case came to the conclusion that the plaint allegations are true and set aside the claim order. But on appeal the learned District Judge took the view that the suit ought to have been framed as a representative suit under Order 1, Rule 8, C. P. C. , in that the gift deed having been treated by the plaintiff as a transaction coming under Section 53 of the Transfer of Property Act; the plaintiff has proceeded as if the gift deed Ex. D-1 is a fraudulent transfer to defeat the 2nd defendant's creditors including the plaintiff. Being the creditor's suit to avoid a transfer, the suit ought to be one for the whole body of creditors. Therefore, according to the learned Judge the suit is not maintainable. He has also dealt with the other aspects of the case centering round Ex. D-1 transaction. Finally the learned Judge has accepted the case of the 1st respondent and set aside the decree of the trial court.;


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