I.D.Dua, J. - (1.) These are two cross appeals (Regular First Appeals Nos. 95 and 106 of 1956) by Ishar Dass objector and Firm Radha mal Arjan Dass decree-holder respectively against the judgment and decree of the learned Subordinate Judge 1st Class, Moga, dated the 31st May 1956 whereby the suit of the decree- holder under Order XXI, rule 63, Civil Procedure Code, was decreed in part. It was stated in the plaint that firm Radha mal-Arjan Dass secured a decree for Rs. 13,625/- and costs against Sant Ram, Ram Lal and Sham Lal defendants Nos. 2 to 4 on 31st December, 1954. The plaintiff sued out execution and got certain bricks attached from the brickklin situated at Gagra. but Ishar Dass defendant No. 1 (who is appellant in one of these appeals) objected to the attachment claiming the brickklin to be exclusively owned by him. The executing Court accepted the objections on the basis of a fictitious deed of dissolution of partnership by means of an order dated the 14th of May 1955. The decree-holder firm claimed in the plaint that the brickklin was exclusively owned by the Sant Ram defendant No. 2 and that the land underneath as well as the security was in his name. It was also pleaded that in the earlier deed of partnership there was no mention of the brickklin in suit. Sant Ram was also alleged to be doing all the business at the brickklin and the document evidencing dissolution of partnership was described to be a fraudulent device adopted to deprive the plaintiff of his legitimate dues. By means of this dissolution it was pleaded that Sant Ram had transferred his entire property. It was also expressly stated that Ishar Dass was his real sister's son and defendants Nos. 3 and 4 are Ishar Dass's real brothers. On these allegations the decree for declaration, that Sant Ram defendant No. 2 is the sole proprietor of the brickklin situated at Gagra and that therefore the bricks mentioned in the plaint are liable to attachment and sale in execution of the plaintiff's decree, is claimed.
(2.) The suit was contested both by Ishar Dass and Sant Ram--Ishar Dass claiming the sole ownership of the entire brickklin and Sant Ram disowning all connections with the same. Sant Ram in his written statement admitted that previously he had one-fourth share in the brickklin but under a registered deed of dissolution of partnership dated the 28th of September 1954 that one-fourth share had also became the property of Ishar Dass. Since he was unable to pay the loss incurred by the firm. Sant Ram, according to his plea, had to give up his share in favour of Ishar Dass, defendant No. 1. Ishar Dass also admitted Sant Ram's original title with respect to one-fourth share in the brick-klin. He further pleaded that the firm owned a Karkhana for grinding, rolling, carding, sawing etc., as well as the brick-klin in question: the business of the Karkhana having become slack the firm suffered considerable loss necessitating dissolution of the partnership firm. The accounts were thereupon gone into and understood by the parties and ultimately the firm was dissolved by means of a deed dated the 28th of September, 1954 under which Sant Ram gave up his one-fourth share in two brickklins with the result that the brickklin in question along with all the bricks became his (Ishar Dass's) property. As Sant Ram had absolutely no means to pay the amount of the loss, the steps taken by him were based on good faith and were not tainted with any fraud or dishonesty. The pleadings of the parties gave rise to two principal issues: 1. Whether Sant Ram defendant No. 2 is the exclusive owner of the brickklin at Gagra and therefore the exclusive owner of the bricks in dispute ? 2. Whether the deed of dissolution of partnership was executed to defraud the plaintiff who is a creditor of defendants Nos. 2 to 4. If so its effect ? The trial Court after considering the entire evidence came to the conclusion, under issue No. 1, that the brickklin in dispute, now situated at the Gagra, was the same brickklin which was previously situated at Gloti and the name of which is mentioned in the partnership deed, Exhibit P. 1. On this finding the Court concluded that Sant Ram's share in the brickklin in question was thus only one- fourth. Under issue No. 2, after considering all the attending circumstances, including (1) heavy indebtedness of Sant Ram at the time of the alleged dissolution, (2) that he owed about Rs. 50,000/- to the plaintiff firm which was to be paid by instalments, out of which only had been paid, and for the remaining instalments a suit had to be filed, (3) that the suit in execution of the decree of which the present proceedings arose, was pending on the date of the alleged dissolution, (4) that in the course of the proceedings of the said suit Sant Ram filed an affidavit stating that he had no intention to transfer any of his properties, (5) that all the other partners of the firm were near relations of Sant Ram, (6) that Sant Ram got nothing out of the dissolution of partnership, and (7) the complete absence of any evidence on the record to show that any debt was in fact due from Sant Ram-the Court below came to the conclusion that the dissolution deed, Exhibit P. 2, was a fictitious and sham document and was brought about to defraud the creditors of Sant Ram who was heavily indebted. One-fourth share in the brickklin was thus held liable, as belonging to Sant Ram, in execution of the decree of firm Radha Mal- Arjan Das. As already observed, both Ishar Dass and firm Radha Mal- Arjan Dass, feeling aggrieved, have preferred cross-appeals in this Court, and this judgment will dispose of both of them.
(3.) In Ishar Dass's appeal the only question which arises for decision is whether the deed of dissolution represents a genuine transaction or is merely a colourable or a sham transaction not intended to be effective and meant merely to save the partnership assets to the extent of Sant Ram's share from being proceeded against in execution of the plaintiff firm's decree. His learned counsel has submitted that the document was duly registered and is prima facie a good and genuine document, it is, accordion to him, for the plaintiff decree-holder to establish affirmatively that the document does not represent the true share of affairs. He has taken us through the entire oral evidence led in the case and has submitted that nothing has been elicited from the witnesses produced by Ishar Dass which would throw any real suspicion on the genuineness of the dissolution. He has also submitted that Sant Ram owned no obligation to his creditors to continue this partnership business and if for reasons, which appealed to him, he wanted to walk out of the partnership, the plaintiff decree- holder had no right, in law, to prevent him from doing so. Even if Sant Ram's motive was to delay or defeat the claim of the plaintiff decree-holder, the dissolution could not be assailed or set aside at the instance of the present plaintiff. He has in the course of his arguments made a reference to Section 53 of the Transfer of Property Act which makes transfers of immovable property, made with intent to defeat or delay the creditors of the transferor, voidable at the option of any creditor so defeated or delayed. The counsel has submitted that the plaintiff decree-holder has not proceeded under this provision of law and indeed he could not so proceed because there is no transfer of any immovable property with the intent contemplated by this section. The suit is under Order XXI, rule 63, Civil Procedure Code, and therefore, so argues the counsel, the Court below was wrong in approaching the consideration of the case with the object of finding out whether or not this dissolution had been brought about to defraud the creditors of Sant Ram. The counsel also submitted that there were four partners of the concern as disclosed in Exhibit P. 1, and although Ishar Dass and also one of the partners, there were also two more individuals, Radha Kishan and Lekh Raj, and if they all considered it advisable to dissolve the firm, no suspicion should attach to this conduct. I have no hesitation in agreeing with the counsel that Section 53 of the Transfer of Property Act has nothing to do with the present case. To begin with, that section deals with transfers of immovable property and it is doubtful if a dissolution of partnership can, strictly speaking, be considered to be such a transfer; besides a suit under this section has to be instituted on behalf of or for the benefit of all the creditors and admittedly such is not the scope of the plaint in the present suit which has not been properly constituted either as to parties or otherwise. There is also authority for the view that if permission under Order1, Rule 8, Code of Civil Procedure is not obtained, suit under Order XXI, Rule 63, cannot be considered to be representative within the scope of Section 53. Transfer of Property Act: (See Mt. Banto Devi v. Firm Lal Shiv Parshad Sri Kishen Das, AIR 1943 Lah 96). It is true that the principles of this section, based as they are on principles of equity, are in some authorities considered to be of universal application and thus applicable even to localities where this Act is not directly applicable, and it has also sometimes been applied to transfers of goods and transfers by operation of law, to which in terms this section is inapplicable. But this provision of law, as stated above, is intended to safeguard the interests of the general body of creditors and, in my opinion, it does not hit a transaction by which one creditor is given preference over others, for which contingency, proceedings will have to be had under some other law, for instance. Sec 53 or 54 of the Provincial Insolvency Act. A benami transfer per se may also not come within the mischief of this section and the facts and circumstances of such a transferee may have to be taken into account. The question, however, remains that ignoring Section 53, Transfer of Property Act, altogether, if the finding of the Court below, in real substance, is that the deed of dissolution is a sham document not intended to be operative and acted upon, then is it not open to the Court to give relief to the decree-holder and permit him to proceed against Sant Ram's interest in the partnership in question. Mr. Aggarwal on behalf of the plaintiff decree-holder has drawn our attention to Exhibit D.W.2/1, a work-order form No. 49/300, dated the 6th of November 1954, in which attention of Shri Sant Ram contractor is drawn by the Government Department concerned to the conditions on the back of the form relating to the purpose of the contract and other details. This form also contains a list of payments made to "Shri Sant Ram kiln contractor at Gagra kiln" and on the 6th of November 1954 some payments are said to have been made to him, the total amount coming to Rs. 1,293/-. In this document, Mr. Aggarwal emphasises that Shri Sant Ram kiln contractor at Gagra Kiln is still shown as carrying on business on behalf of this kiln. Particular attention has been drawn to some of the conditions which include that slack coal, if received at the kiln in question, was to be delivered to the contractor at 24 tons per lakh of bricks at stock rate as received. The rates mentioned in this document include all charges to be received by the contractor for T and P Moulds, royalties, octroi and sales tax and other taxes of the Government or Local Bodies. It is submitted that this document is almost a clincher and goes a long way in showing that Sant Ram never intended to part which his interests in the partnership kiln and the deed of dissolution was obviously intended to be a camouflage and a mere eyewash. In developing this argument stress has been laid on the fact the other three partners are no strangers to Sant Ram but on the other hand are his near relations In this connection our attention has been drawn to the statement of Ishar Dass plaintiff as his own witness at page 23 of the printed paper-book re: Regular First Appeal No. 95 of 1956, where he has admitted that Sant Ram is his maternal uncle, Ram Lal and Sham Lal are his real brother and Radha Kishan is a son of his father's elder brother and his mother's sister and Lekh Raj is the son of his maternal uncle. Reference has also been made in this connection to the evidence of Chandar Parakash, Sub-Divisional Clerk, Garley Canal Sub-Division Dera, who has produced. Exhibit D.W.2/1, and has proved, with respect to the departmental register, that Sant Ram was entered in that register to be the person who had to supply bricks from the kiln at Gagra. It is significant that this witness was not cross-examined at all and no explanation is sought from him as to what had happened after the dissolution of partnership. On the other hand what has been elicited from him is that Sant Ram contractor is entered as owner of the kiln at Gagra and the account stands in the name of Sant Ram kiln contractor. This evidence, in my opinion, also throws considerable amount o suspicion on the genuineness of the dissolution deed. If, after the 28th of September 1954, the date of dissolution, Sant Ram, who had been according to Ishar Dass's case, put to heavy losses, was not in a position to continue the kiln business, it is not understood how he was allowed to continue to carry on, the business of the supply of bricks to the Government. Departments, representing himself to be the kiln contractor owing the kiln in question. It is nobody's case that Sant Ram was re-employed as an employee of this concern to carry on the supply of bricks to the Government.;