- (1.) THIS is a second appeal by the transferees, defendants, of certain property in a suit for declaration.
(2.) THE respondent Pyarelal instituted a suit, out of which this appeal has arisen, on 23rd October, 1945, on the allegations that he held a decree for Rs. 306/15/- against defendants Nos. 9 and 10, Maman Singh and Umrao Singh, and in execution of the said decree attached the produce of certain lands, khewat No. 2/1, khasra Nos 218, 220, 221, 226, 229, 230 and 231, measuring 9 bighas and 2 biswas situated at Bamanwas on the ground that the said produce weighing 3 maunds 19-1/2 seers of grain was the share of the produce payable to the judgment-debtors by way of rent. THE attachment was affected on 5th May, 1944. Gidha, Gangu, Hardev, Seeta, Sardara, Natha I and Natha II preferred an objection that the said land had been sold to them by the judgment debtors on 20th August. 1942, and the judgment-debtors had thereafter no interest in it, and that the grain was, therefore, not attachable. This objection was allowed on 19th February, 1945. It was alleged by Pyarelal that the said sale, dated 20th August, 1942, had been affected by Maman Singh and Umrao Singh with intention to defeat or delay the execution of the decree head by he plaintiff against the said Maman Singh and Umrao Singh, and was, therefore, inoperative against the plaintiff. It was urged that the said sale was fictitious, collusive and without consideration. Umrao Singh supported the plaintiff, but the vendees and Maman Singh contested the suit. THE trial court, after evidence, found that Pyarelal's decree was only against Umrao Singh, and Pyarelal could not challenge the validity of the sale of the half share of Maman Singh. It further held that the sale of the remaining half by Umrao Singh had been made with the intention of delaying or defeating the creditors, and the vendees had not proved good faith in obtaining the same, although the passing of the consideration had been held to have been proved. THE court granted a decree declaring that the transfer of half share in the land by Umrao Singh by sale dated 20th August, 1945, was void and inoperative, and the plaintiff Pyarelal had a right to attach half of the rent amounting to 1 maund 20-3/4 seers of grain in the hands of the vendees. THE suit regarding the sale of his share by Maman Singh to the vendees was dismissed, it being held that the debt of Pyarelal was outstanding against Umrao Singh alone. On appeal by the vendees, the same judgment was upheld, and they have preferred this second appeal. It was argued by learned counsel for the vendees that the plaintiff creditor had called the sale dated 20th August, 1942, to be fictitious, collusive and without consideration. The court could not give a declaration on another and different ground that the sale having been made with intention to defeat or delay the creditors was void against the creditor. Reliance was place upon Parbhu Nath Prasad vs. Sarju Prasad and others (l) and Mathura Prasad vs. Sita Ram (2) In the first case all that was decided was that if the creditor alleges that the sale deed was fictitious and without consideration and was never acted upon, the provisions of sec. 53 of the Transfer of Property Act are not attracted, and the creditor need not institute a suit for avoiding the sale under that sections but can proceed against the property ignoring the transfer. In the present case, the plaintiff has relied on both the grounds. He has, for instance, in paragraph 2, sub-paras (a) and (b) relied on a plea that the transfer was made with intention to delay or defeat the realisation of his debt, and further on in sub-paras (j), (k)and (1) he purported to say that the sale deed was fictitious. The plaintiff's case thus rested on alternative grounds - which fact distinguishes the Oudh case also - and he cannot be non-suited merely because the sale had not been proved to be fictitious. It may be pointed out that if the intention to defeat or delay the creditor is proved, a transfer can only be upheld if the transferee takes the property in good faith and for consideration. In the present case, the element of good faith has been held to be absent by the two courts, for reasons with which I agree. Some of the vendees had taken a mortgage of the same property for Rs. 100/- and when the plaintiff wanted to proceed against property, Natha, Hardeva, Seeta, Gangala and Sadhu objected on the ground that they were mortgagees. The objection was dismissed on a finding that the mortgage was fictitious. Learned counsel for the vendees wanted to urge that the rejection of objection was only made on the ground of delay, and it was, therefore no decision on merits. This is however incorrect, for a perusal of the decision shows that the court in rejecting the objection took into consideration the fact that even after the mortgage, the mortgagees' occupation was shown to be as tenants, and they gave the rent to the mortgagors. After the dismissal of the objection, the same objectors instituted a declaratory suit, and during the pendency thereof, the appellants including the previous mortgagees took the present sale in dispute and got the suit dismissed in default. The plaintiff was contesting the validity of the mortgage on identical grounds, and so far as those five person were concerned, they knew at the time that there was a decree against Umrao Singh, which the plaintiff wanted to realise by attachment and sale of the produce, which was the landlord's share, and those five persons joined the rest in taking the sale. The argument advanced by learned counsel for the vendees that some of them were not parties to the earlier litigation is of no force, for if five co-vendees knew of the litigation, it is reasonable to presume that all the vendees knew of the decree of Pyarelal, and further that Pyarelal objected to the transfer by his judgment-debtors on the ground that such a transfer would delay or defeat the execution of his decree. The vendees, therefore, did not in the present case act in good faith in obtaining the transfer, and if the sale was made with intend to defeat or delay the creditors, the vendees would not receive any assistance from the fact that consideration was paid by them. It was next argued that only Umaro Singh had 83 bighas of land besides the property in dispute, which he subsequently transferred and the creditor had thus other property available for satisfaction of his debt. It was argued that it could not, therefore, be said that the sale of 20th August, 1942, was made with intent to defeat or delay the creditors. The trial court has observed that under the law in force in Khetri,bisvedari rights in land were not liable to attachment in execution of a decree. What could at the most, therefore be done by the decree holder would have been to attach the produce of the other land. But there is no guarantee that he could not have been met by the same tactics with which he was confronted when he proceeded to attach the produce of the land now in dispute. It may be pointed out that the present land in dispute is irrigated,while the other land which Umrao Singh subsequently sold was barani land. He had Bisvedari right in either and these rights could not be attached and sold in execution of the decree. There is no proof further that the barani land yielded any good crops in that year, and the fact that the judgment-debtor Umrao Singh had certain other land, the rent whereof was attachable in case of good years does not stand in the way of impeachment of the sale now in dispute for it has been amply proved that the judgment-debtors were actuated with a desire to obstruct the execution of the decree while affecting the transfer of land first by mortgage and then by sale. In the circumstances of this case, the two courts have come to a right conclusion and this appeal fails and is dismissed with costs. Learned counsel wanted leave to appeal to a Division Bench. I do not see sufficient ground to accord it. The leave is refused. . ;