HUSAIN BUKHSH Vs. HAFIZ MUSAHIB KHAN

JUDGEMENT

(1.) THE plaintiff, Hafiz Musahib Khan, instituted a suit against Husain Bukhsh, Musammat Amiro and Mohammad Hanif, representatives of Musammat Nawab Jan, Kudratullah and Shabratan. THE facts necessary for the disposal of this are these. THE plaintiff obtained a simple money decree on the 22 November, 1907 against Kudratullah and Shabratan. In execution of that decree the house in dispute was attached on the 3 December 1907. On the same date Kudratullah and Shabratan executed a sale-deed of the same house in favour of Musammat Nawab Jan. THE sale-deed as it appears from an attested copy was executed and registered on the 3 December 1907. On the strength of that sale-deed Musammat Nawab Jan, who was in possession of the house, objected to the attachment of the house. Her objection was allowed on the 20 of February 1908 and the house was released from the attachment. THE plaintiff thereupon on the 4 of May 1908 instituted the present, suit for a declaration that at the time of the attachment the defendants judgment-debtors Nos. 3 and 4 (that is Kudratullah and Shabratan) were the owners of the house in suit and that it should be sold by auction for the satisfaction of the amount due under the decree held by him. In paragraph 2 of the plaint the plaintiff alleges that the judgment-debtors, defendants Nos. 3 and 4, sold, with the object of defrauding the decree-holder of his money, the house attached to Musammat Nawab Jan for a fictitious and imaginary consideration of Rs. 1,400 and having executed the sale-deed registered it on the 3 of December 1907. In paragraph 4 of the plaint it was stated that the wrongful act on the part of the judgment-debtors defendants caused considerable loss to the plaintiff decree-holder. THEre was no allegation in the plaint that the transferee in any way, acted dishonestly or that she was a party to the transferor's fraud or had notice of it. THE defence with which I am concerned in this appeal was that the sale-deed was executed in good faith and for consideration. THE Court of first instance decreed the claim. THE representatives of Musammat Nawab Jan appealed and the lower appellate Court affirmed the decree of the first Court. THE findings in effect are that the only part of the consideration for which the deed was executed and which has been proved is a sum of Rs. 755-2 due on a mortgage of the house and that the vendor's intention in executing the sale-deed was to defraud the decree-holder. It is to be noted that instead of "vendors" he uses the term "appellants" but that is clearly wrong inasmuch as the appellants before that Court were the representatives of the vendee. At the end of its judgment that Court comes to the conclusion that the sale-deed, having been executed with the intention of defeating the creditor respondent, is void under the provisions of Section 53 of the Transfer of Property Act. THE representatives of Nawab Jan vendee come here in second appeal and two points are argued by their learned Counsel. First, that the finding of the lower appellate Court that the vendors executed the sale-deed to defraud the decree-holder is not sufficient to bring the case within the purview of Section 53. In addition to that finding another element is necessary and it is that the transferee was not a transferee in good faith and for valuable consideration and that there was no allegation to that effect in the plaint; the mere fact that the transferors intended to defraud the decree- holder is not sufficient to bring the transaction within the purview of Section 53 in support of this proposition, the learned Counsel relies on the last clause of Section 53 of the Transfer of Property Act and on the following rulings: Ishan Chunder Das Sarkar V/s. Bishu Sirdar 24 C. 825 : 1 C.W.N. 665 and Bhagwant Appaji V/s. Kedari Kashinath 25 B. 202. Secondly, it is contended that the sale according to the finding of the lower appellate Court is for a consideration of Rs. 755-2, and that, therefore, under the authority of Suba Bibi V/s. Bal Gobind Dass 8 A. 178, which was followed in Umrao Singh V/s. Kaniz Fatima (1901) A.W.N. 67 and in Khodya Bibi v. Shah Mohammad Zahir Alam (1901) A.W.N. 64, the sale-deed notwithstanding that it gave preference to one of the creditors and was effected to delay and defeat another is not void under Section 53 of the Transfer of Property Act. In my opinion both these contentions are sound. Regarding the first contention it is sufficient to say that there was no allegation on the part of the plaintiff in this case that the transferee was a party to the fraud of the transferors to delay or defraud the decree-holder and that, therefore, the finding that the judgment-debtors did execute the sale-deed with that intention is of no avail. Regarding the second point, I am of opinion that on the findings of the lower appellate Court that the sale was in favour of a mortgagee in possession, and was for a consideration of Rs. 955-2-0, the transaction is not governed by Section 53 of the Transfer of Property Act. When any fraud is imputed to any lady the use of general word of fraud or collusion is ineffective vide Gunga Narain Gupta V/s. Tiluckram Chowdhry 15 I.A. 119 : 15 C. 533 Krishnaji V/s. Wamnaji 18 B. 144. In this case there is not even a general allegation of fraud against the transferee and in the absence of any allegation to that effect or a finding thereon it cannot be presumed from the mere fact that the consideration was inadequate. On the authority of Nanhi Jan V/s. Bhuri 30 A. 321 : 5 A.L.J. 601 : A.W.N. (1908) 125, it is no doubt incumbent on a party intervening to give prima facie evidence to establish the genuineness of a document on which he relies but in the present case Musammat Nawab Jan was a defendant in possession and her objection under Section 278 was allowed and according to the finding of the lower appellate Court a considerable portion of the sale consideration did actually pass. In these circumstances the case is not governed by the ruling in Nanhi Jan V/s. Bhuri 30 A. 321 : 5 A.L.J. 601 : A.W.N. (1908) 125. THE result is that I allow the appeal, set aside the decree of both the Courts below and dismiss the plaintiffs suit with costs, which in this Court will include fees on the higher scale.