VICTORIA MATHEW Vs. OMANAKUNJU AMRITHA RAJAKUMARI

JUDGEMENT

(1.) The claimant in E.A.467/2004 in the execution proceedings (E.P.92/2003) in O.S. 135/1997 on the file of the Munsiff's Court, Kochi is the appellant in this second appeal. The appellant is the sister of the deceased husband of the plaintiff in the suit. The suit filed by the wife of the appellant's deceased brother was one for recovery of possession of the plaint schedule building from her husband's mother and other relatives. The suit was decreed and the decree was executed and the plaint schedule building was delivered over to the plaintiff who is the sister-in-law of the appellant herein. With regard to the money portion of the decree for use and occupation of the building at the rate of Rs.1000/- per month, there was an attachment of an item of property (the property claimed by the appellant) in execution of the decree. The order of attachment was on 16.2.2005. The appellant claimed rights over the property under a registered settlement deed dt. 1.11.2003 executed by the 1st defendant in the suit who is the mother of the appellant. The said claim petition was dismissed by the courts below on the ground that the appellant is a "universal donee" within the meaning of sec.128 of the Transfer of Property Act and hence liable for all the debts of the EX.SA. 11/2006 2 donor and that the settlement deed dt. 1.11.2003 was a fraudulent transfer. The said order of the executing court was confirmed in appeal by the claim petitioner/appellant. Hence this second appeal.

(2.) The following questions of law have been formulated in the memorandum of second appeal as substantial questions of law:-

(3.) The learned counsel for the appellant/claim petitioner made the following submissions before me in support of the appeal:- The liability of a universal donee cannot be agitated in this suit. The decree holder will have to file a separate suit. In order to attract the mischief of fraudulent transfer under sec.53 of the Transfer of Property Act, the suit should be one instituted for and on behalf of the body of creditors (vide Thaher Unnisa Begum v Sherfunnisa Begum - AIR 1955 Mad. 446). The facts of the case would show that the donor mother had other properties with her. Ext.A2 M.A.C.T. award etc. will show this. Hence the right of a creditor against a universal donee is to establish his right by a separate suit and not in execution proceedings against the donor (vide Muhamathu Kunju v. Muhammathu Kunju - AIR 1952 T.C. 23).