RAJAGOPALA CHETTY Vs. SIVAGAMI AMMAL

JUDGEMENT

(1.) THIS is an appeal under Secs.47 and 96 of the Civil P. C., in an execution matter. The appellant had obtained a decree for a sum of Rs. 4,000 andodd, against the 2nd respondent, his father and in execution of that decree, had attached certain items of properties. Now these items had been transferred by the father to his 2nd wife, after the suit had been brought, but before attachment, by a deed of settlement. The plaintiff thereupon impugned the document, as one fraudulently executed, with a view to defeat and delay the claims of creditors, particularly of himself, The learned Judge disposed of the matter, without taking any evidence, as to the circumstances, under which the settlement was executed, to see whether it was not a case of fraudulent conveyance. He starts by observing that the plaintiff cannot be regarded as one of his father's creditors at the time, when the settlement was executed, as he had not obtained his decree yet, the suit being only one on account. It is not however necessary under Section 53 of the Transfer of Property Act, that the creditor impugning the alienation should have been a creditor at the time of the alienation. If a person makes a transfer of his property, in view of his becoming a debtor, or of getting a decree passed against him in the future, and if the object of the transfer is shown to have been to defeat the claims of such creditors, Section 53 will cover the case. The District Judge also says that the settlement deed was not executed gratuitously, but on account of natural love and affection. That may be so: but it does not necessarily follow that the intention was not to defeat creditors; a man may make a transfer to his wife or a near relation of his to defeat creditors. The question has to be decided on evidence, as to the circumstances, under which the transfer was made. In this case, the father is said to have transferred all his properties to his second wife, after the son had brought his suit for an account and for the delivery of his share of the family properties. The transfer seems prima facie to be fraudulent, but the question must be decided by the Court after taking evidence. We set aside the order of the District Judge and remand the case to the lower Court for disposal, in the light of the observations above made. Costs will abide and follow the result.