MAGNIBAI KISHORJEE Vs. KESRIMAL SAWAIRAM AND ANOTHER
HIGH COURT OF MADHYA PRADESH
Kesrimal Sawairam And Another
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Nevaskar, J. -
(1.)THE only question which is material for the purpose of this appeal is whether the suit out of which this appeal arose, is one by a creditor decree -holder for avoiding a transfer on the ground of its having been made with intent to defeat or delay the creditors of the transferor and as such bad in law by -reason of provisions of S. 53, Transfer of Property Act.
(2.)PLAINTIFF Kesarimal obtained a decree against one Pema for money. While the suit was pending Pema effected a deed of gift in respect of certain houses belonging to him in favour of his wife Magnibai on 6 -10 -1948 and got it registered. On 18 -10 -1948 a decree was passed referred to above against Pema at the instance of the plaintiff. Kesarimal attached these houses. To this attachment Magnibai objected on the ground that she had obtained the same under a deed of gift duly registered. This objection of hers was allowed and the property was released from attachment. Plaintiff thereupon filed the present suit stating the aforesaid facts and claimed therein a declaration that the deed of gift dated 6 -10 -1948 having been fraudulently made to defeat his claim is inoperative and not binding upon him and that the property in suit is liable to attachment and sale in execution of his decree. On behalf of defendant Magnibai one of the points raised was that the suit being one to avoid a transfer said to have been fraudulently made by the judgment -debtor in favour of his wife, ought to have been brought in a representative capacity. The suit therefore in the present form is not competent. This contention was overruled by the trial Court. The trial Court relied upon the decisions in - - 'Budhermal v. Verharam', AIR 1946 Sind 78 (A); - -'Bas Kuar v. Gaya Municipality', : AIR 1939 Pat 138 (B) and Mohammad Ashgar Ali v. Sh. Mohammad Ishaq Ali', : AIR 1940 All 72 (C), for the view that under the circumstances of this case an unsuccessful decree -holder who has failed in an objection proceeding can bring a suit under O. 21 R. 63 and that a representative suit as contemplated under S. 53, Transfer of Property Act is not necessary.
Question which arises for consideration is whether this view of the lower Court is correct. If I hold that the view taken by the lower Court is incorrect and a suit being substantially one for avoiding the transfer cannot but be filed on behalf of or for the benefit of creditors, then it will be unnecessary to consider other questions involved in the suit and the appeal ought to succeed on this point alone and the plaintiff will have to be non -suited.
(3.)SECTION 53, Transfer of Property Act is as follows :
53 (1) Every transfer of immoveable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed.
Nothing in this sub -section shall impair the rights of a transferee in good faith and for consideration.
Nothing in this sub -section shall affect any law for the time being in force relating to insolvency.
A suit instituted by a creditor (which term includes a decree -holder whether he has or has not applied for execution of his decree) to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor, shall be instituted on behalf of, or for the benefit of all the creditors.
(2) Every transfer of immoveable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee.
For the purposes of this sub -section, no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made.
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