PALANIVELU Vs. OUSEPH MATHAI

JUDGEMENT

(1.) THE plaintiffs who failed in the courts below are the appellants in the second appeal. One Thangavelu, maternal grandfather of the plaintiffs executed a settlement deed Ex. A-1 dated 27-10-1944 under which he gave a life estate in the suit property to his daughter Kanchanamala and the vested remainder to his grandsons. The mother executed a surrender deed Ex. A-2, dated 1-8-1956 in favor of her children with the result that the remaindermen became entitled to the present possession of the property from the date of Ex. A-2. They have become the absolute owners of the property. The defendant obtained a decree against kanchanamala in O. S. 1701 of 1956 for a sum of Rs. 1300 and he sought to attach the property in the hands of the minors on the ground that the surrender made by the mother judgment-debtor was not a bona fide transaction and that it was a fraudulent transfer intended to defeat and delay the claim of the creditor. The courts below upheld the claim of the decree-holder in the view that it was brought about with a view to defeat and delay the claim of the creditors. It is impossible to sustain the view taken by the courts below.

(2.) THE matter has got to be decided under the provisions of Section 53. Transfer of property Act. read with Section 5 of the same Act. Section 5 defines 'transfer of property' in these terms:-

(3.) CASES have uniformly taken the view that a document of release a document of relinquishment and document of surrender would not amount to a 'transfer' within the meaning of Section 5. The important idea involved in a transfer is that under the transfer a person who got title or right conveys that right or title to the transferee which right the transferee acquires only in pursuance of the transfer. In the case of a surrender by life-tenant in favor of the remaindermen, there is no transfer of property from the life tenant and there is merely an effacement or extinguishment of the rights of the life-tenant with the result the rights of the remaindermen get accelerated. The rights of the remaindermen are derived only under the document executed by the full owner and when a surrender deed is executed the full rights accrue to the remaindermen only in pursuance of the title derived under the settlement and the remaindermen do not derive any title from or through the life-tenant who makes the surrender. In other words, there is merely a self-effacement on the part of the surrender, life-tenant, who goes out of the picture.