VASUDEO RAGHUNATH OKA Vs. JANARDHAN SADASHIV APTE

JUDGEMENT

(1.) The question in this second appeal is whether the sale-deed of the 19th February 1906, under which the plaintiff claims, is voidable under Section 53 of the Transfer of Property Act at the instance of the defendant, who is an auction-purchaser of the right, title and interest of the plaintiff s vendors in the takshim, with which we are concerned in this suit.

(2.) There is no dispute about the fact that the defendant purchased the right, title and interest of the heirs of the original owner Purshottam Oke in the takshim on the 22nd January 1909 in execution of a money-decree against the said Purshottam by one Gopal Mahadev Gadgil with full notice of the sale-deed in favour of the plaintiff. There was another similar sale-deed of the same date in favour of one Deodhar. Bat the claim on that sale-deed between Deodhar and the defendant has been compromised. It is common ground now that the plain till must succeed in this suit, if his sale-deed is good and operative. The objection taken by the defendant in the trial Court was that it was not a real transaction but entered into without consideration and with the fraudulent object of defeating the creditors of the vendors, whose right, title and interest he had purchased. The trial Court found that the transaction was real, and that there was consideration for it, and that it was not entered into with the object of defeating or delaying the vendor s creditors. On these findings the plaintiff s claim was decreed by that Court. In appeal, however, the learned First Class Subordinate Judge with Appellate Powers came to the conclusion that though a part of the consideration was proved it was grossly inadequate, that the sale was effected with the object of defeating or delaying Purshottam s creditors and that the plaintiff was aware of and participated in the fraudulent intentions of the vendors and was not a transferee in good faith. Apparently it was not contend? ed that apart from the objection under Section 53 of the Transfer of Property Act the transaction was sham and not real. The issues raised in both the Courts covered the controversy between the parties relating to Section 53 of the Transfer of Property Act, and did not indicate that the defendant really contended that the transaction was not real but a mere cloak for concealing the true ownership which remained with the vendors. The lower appellate Court accordingly reversed the decision of the trial Court and dismissed the plaintiff s claim.

(3.) In the appeal before us Mr. Coyaji has argued on behalf of the appellant that Section 53 of the Transfer of Property Act cannot help the defendant, as he is not a person, at whose option the deed is voidable under the section. He concedes that it is quite open to the defendant to raise the plea that the transaction is sham and colourable or that it is voidable under Section 53 of the Transfer of Property Act. As regards the former contention, lie says that though it was raised in the written statement, no issue was framed, on the point, and that in any event after the finding of the trial Court, it was practically given up. This position has not been seriously contested by Mr. Kao on behalf of the defendant. In my opinion, therefore, it must be assumed for the purposes of this case that whatever infirmity there may be in the transaction in virtue of the provisions of Section 53, it was not a sham but a real transaction between the vendors and the plaintiff. The findings recorded by the lower appellate Court on the issues arising under Section 53 do not negative this assumption, and on the pleadings it would not be possible to say that the question was specifically raised or that it was urged before the lower appellate Court.