Gajendragadkar, J. -
(1.)THIS appeal arises from a suit filed by the plaintiff under Section 53 of the Transfer of Property Act for a declaration that the sale-deed passed by defendant No.1 in favour of one of his sons, defendant No.2, on October, 19, 1929, was passed with intent to defeat or delay the creditors of defendant No.1 and as such was not binding on the plaintiff and the other creditors of defendant No.1. The plaintiff alleged that defendant No.2 had left India for South Africa some time in 1920 to earn his living, and that he succeeded in making large profits in the business undertaken, by him in that country. He used to send sums of money to his father in India from time to time. On October 19, 1929, the father, defendant No.1, executed a sale-deed in favour of his son, defendant No.2, for Rs. 2,500, THIS sale-deed purported to convey all the immovable properties belonging to the father. THIS document was registered on October 21, 1929. On the same date the plaintiff filed suit No.259 of 1929 against defendant No.1 to recover Rs. 3,999. Thereafter on October 28, 1929, the plaintiff impleaded to the said suit all the sons of defendant No.1. In June 1931, the said suit was dismissed against the sons, but was decreed against the father to the extent of Rs. 1,001. Against the said decree appeals were preferred both by the plaintiff and defendant No.1. Both the appeals were, however, dismissed in 1933 and the decree passed by the trial Court was affirmed. In 1933 the plaintiff-decree-holder made an application to execute the decree; but the said application proved infructuous. In 1934 he filed another darkhast application and sought to recover the decretal amount by attachment and sale of crops standing on the land which along with other properties had been sold by defendant No.1 to defendant No.2 in 1929. Defendant No.2 objected to the attachment of the crops, but apparently his objection was overruled and the crops were attached and sold. The decree-holder however realised only Rs. 36 as a result of the sale of the said standing crops. In 1936 a third darkhast was filed by the plaintiff decree-holder in which he claimed that the land belonging to defendant No.1 itself should be attached and sold. Objections were raised to the attachment of the said land on behalf of defendant No.2. The leanred Judge thereupon directed the plaintiff to obtain a declaration that the sale-deed under which the land in question had been sold to defendant No.2 by defendant No.1 was not binding on the plaintiff. As a result the plaintiff, had to bring the present suit for a declaration that the said sale-deed is fraudulent and does not bind the creditors of defendant No.1. As required by Section 53 of the Transfer of Property Act this suit has been instituted by the plaintiff for and on behalf of all the creditors of defendant No. 1 under Order I, Rule 8, of the Civil Procedure Code.
(2.)THIS claim was resisted by defendant No.2 mainly on two grounds. It was contended that the transfer impeached in the suit was bona fide and for valuable consideration, and it was alleged that the said transfer was not intended to defeat or delay the creditors of defendant No.1. It was further contended that the present suit under Section 53 of the Transfer of Property Act was barred by limitation under Article 91 of the Indian Limitation Act.
The learned trial Judge, however, negatived both the contentions of defendant No.2 and granted the plaintiff the declaration claimed by him. The appeal preferred by defendant No.2 in the Court of the District Judge at Ratnagiri failed and was dismissed. Defendant No.2 made a second appeal against the decree of the District Court. It was heard by Mr. Justice Lokur on August 3, 1943. Mr. Justice Lokur accepted the concurrent finding recorded by the Courts below that the transfer was intended to defeat or delay the creditors. On the question of limitation he held that the suit was governed not by Article 91 as contended by defendant No.2, but by Article 120 of the Indian Limitation Act. While dealing with the question as to when limitation could be deemed to have started against the plaintiff in the present case Mr. Justice Lokur referred to the fact found by both the Courts below that the plaintiff had known about the sale-deed in question within a week from its execution. He pointed out that even so the plaintiff had no reason to suppose that he could not recover his dues except by the sale of the property covered by the said sale-deed. He further observed that even assuming that the plaintiff's right to sue accrued when he obtained his decree, the suit would be within time since it had been filed within six years from the date of the appellate decree. In this connection Lokur J. referred to the decision of the Madras High Court in Narasimham v. Narayan Rao  A. I. R. Mad. 66, where Venkatasubba Rao J. and Madhavan Nair J. had differed on the question as to when limitation can be deemed to commence under Article 120, and he expressed his agreement with the view expressed by Venkatasubba Rao J. and held that "the right to sue accrued to the plaintiff only when he decided to exercise the option given to him by Section 53 of the Transfer of Property Act to, challenge the transfer and to seek to recover his dues out of the property transferred. " Since on this view the suit was clearly in time, the second appeal preferred by defendant No.2 was dismissed with costs (46 Bom. L. R. 613 ). It is against this decision that the present Letter Patent Appeal has been filed by defendant No.2.
On behalf of the appellant Mr. Somjee has contended that the Courts below were wrong in holding that the transfer by defendant No.1 to defendant No.2 was intended to defeat or delay the creditors. He referred to the fact that defendant No.2 had sent to his father, defendant No.1, several sums of money from 1923 to 1929. He suggested that these sums would in all amount to more than Rs. 7,000. His argument was that though the son did not intend to treat these amounts as loans advanced to his father, the father felt that he should not remain indebted to his son, and it was with a view to compensate his son for the amounts voluntarily paid by him that the father executed the sale-deed in favour of his son. In support of his contention Mr. Somjee has relied on the provisions of Section 25 (2) of the Indian Contract Act under which a conveyance to compensate, wholly or in part, a person who has already voluntarily done something for the promisor would be valid. It seems to us, however, impossible to accept this argument in the present case. It has been found by the Courts below that at the time when the sale-deed was executed by defendant No.1 he was considerably indebted and probably anticipated that his creditors might file actions to recover their debts. In fact, within two days from the execution of the deed, and on the very day when the said deed was registered, the plaintiff had filed his suit to recover his debt. This document conveyed all the properties belonging to defendant No.1, and in spite of its execution defendant No.1 continued to live in the house conveyed in the document and likewise continued to manage the other properties as before. It is conceded that the son did not want to be compensated by his father. Indeed, he had sent the amounts from time to time through affection. Neither he nor the father treated them as loans. Under such circumstances it would not be permissible for defendant No.1 to rely upon a part of the amounts thus received by him from his son as a valid consideration for the transfer made by him. The Courts below have held that the reference to the consideration made in the document was merely a device to justify the execution of the deed, and the object of the said document was clearly to defeat or delay the creditors of defendant No.1. In view of this finding it is impossible for us to accept Mr. Somjee's argument that the transfer would be valid under Section 25 (2) of the Indian Contract Act.
(3.)MR. Somjee has further contended that the Courts below were wrong in holding that the present suit was governed by Article 120 of the Indian Limitation Act. He argues that the proper article to apply would be Article 91. Article 91 applies to suits to cancel or set aside instruments not otherwise provided for. Prima facie suits to set aside instruments can be filed only by persons who are parties to the instruments in question, and the object of such suits is, as the article itself expressly states, to cancel or set aside instruments. On the other hand, suits under Section 53 of the Transfer of Property Act are instituted by creditors who are not parties to the transactions impeached and the claim made in such suits is not to cancel or set aside such transfers, but to obtain a declaration that such transfers do not bind the creditors on whose behalf such suits are filed. Even if such suits are decreed, the instruments evidencing the transfers in question are not cancelled or set aside but are only held to be not binding on the creditors of the transferors. The nature of such suits is, in our opinion, substantially different from that of the suits referred to by Article 91. In that view we are not prepared to hold the suits brought by creditors under Section 53 of the Transfer of Property Act are governed by Article 91. In our opinion, such suits would be governed by Article 120 of Indian Limitation Act. In Saburdas Mahasukhram v. Gopalji Nandas (1942) 45 Bom. L. R. 526 this Court was dealing with a suit brought by a stranger to set aside a decree and the question which arose for decision was whether such a suit would be governed by Article 95 or Article 120 of the Indian Limitation Act. It was held that it is Article 120, and not Article 95, which would govern such a suit. The same view has been accepted in Lal Singh v. Jai Chand (1930) I. L. R. 12 Lah. 262 and Parkash Narain v. Raja Birendra Bikram Singh (1931) I. L. R. 7 Luck. 131.
Mr. Somjee has, however, relied on the decision in Badhika Mohan Gope v. Hari Bashi Saha (1933) 37 C. W. N. 1141, in support of his contention that Article 91 applies to the present suit. This case was cited before Lokur J. and has been distinguished by him on the ground that the plaintiff in the said case was an auction-purchaser and as such may be regarded as the representative of the party to the deed itself. Mr. Somjee has contended that the auction-purchaser is not a representative either of the judgment debtor or of the decree-holder and cannot, therefore, be regarded as representative of the party to the deed itself. It is true that according to the view of this Court an auction-purchaser is not a representative of either of the parties to the suit (vide Hanmantagouda Nagangouda v. Shivappa Dundappa: District Local Board, Belgaum v. Shivappa Dundappa (1937) 42 Bom. L. R. 1123, Bai Mani v. Ranchodlal (1922) 25 Bom. L. R. 147,) But the Allahabad and the Calcutta High Courts take a contrary view in this matter: Ishan Chunder Sirkar v. Beni Madhub Sirkar (1896) I. L. R. 24 Cal. 62, F. B. , Gulsari Lal v. Madho Ram (1904) I. L. R. 26 All. 447, F. B. . In fact, Mr. Justice Mukerji, who decided Radhika Mohan's case, himself emphasised the fact that the plaintiff was an auction-purchaser and as such was a representative of one of the parties to the document. Strictly speaking, on the Calcutta view Mr, Justice Mukerji was justified in assuming that the plaintiff was a representative of the party to the document, and since his decision that Article 91 applied to the suit brought by such an auction-purchaser was based upon that ground, it would, we think, not be reasonable to hold that the said decision is an authority for the proposition that Article 91 would apply to suits which are filed by persons who cannot be regarded as representatives of the parties to the instruments. We, therefore, agree with Mr. Justice Lokur that the present suit is governed by Article 120 of the Indian Limitation Act.