JOSEPH ALEXANDER Vs. OFFICIAL LIQUIDATOR

JUDGEMENT

(1.) This is a claim petition filed against the Company seeking to raise the attachment under the Revenue Recovery Act of a property in Sy. No. 222, Mundakayam Village having an area of 5.35 acres in extent. The property was attached by the Tahsildar, Kanjirappally, in pursuance of a certificate issued by the Liquidator and forwarded to the Collector, Kottayam, within whose jurisdiction the property was situate. This certificate was issued by the Liquidator under S.45T(3) of the Banking Regulation Act following a payment order passed by this Court under S.45D of the said Act. The applicants' claim that they have purchased the property under two sale deeds dated 17-5-1968 from four persons who got title over these properties from one P. K. Varghese to whom the property originally belonged. This P. K. Varghese is the debtor against whom the Liquidator has obtained a payment order in B. C. C. No. 261 of 1965. The case of the applicants is that the debtor had given possession of this property to one Luka Ulahannan under a Vechupakuthy Udampady and subsequently gifted this property to his wife and children in the year 1961 and that he had no interest in the property at the time the Liquidator applied for a payment order in B C. C. 261 of 1965. Further the debtor's wife and children along with this Ulahannan sold the property to the applicants as early as 1968 and therefore the applicants alone were entitled to this property at the time the Tahsildar took revenue recovery steps to recover the amount due from the debtor. Hence the applicants seek a declaration that the disputed properly is not liable to be proceeded against for recovering the amount due from the debtor of the Banking Company.

(2.) In answer to these contentions the Official Liquidator states that the Banking Company instituted a suit O. S. 68 of 1951 in the District Court, Kottayam, on 25-5-1951 against the said P. K. Varghese and an attachment before judgment was effected on these and other properties on 25-6-1951 and a decree was passed on 31-8-1951. The disputed property was item 5 in the list of properties attached. While this attachment was continuing in force the Liquidator by B. C. C. 261 of 1965 moved this Court for a payment order charged on the attached properties and by the order passed by this Court on 16th November, 1965 this Court allowed the prayer of the Liquidator and hence it is contended that the alienations if any made by the debtor must be subject to the attachment and the payment order passed by this Court.

(3.) The question for consideration is whether the declaration asked for by the applicants can be granted. In this connection first it has to be considered whether the applicants are in possession as stated by them. To prove that previously one Ulahannan was in possession of the property the applicants rely on Ext. B-2 an unregistered udampady dated 1-9-1123. C. W. 2 is this Ulahannan. He admits the execution of Ext. B-2 and supports the case put forward by the applicants that he came into possession of the property on the basis of Ext. B-2. Ext. B-2 being unregistered, it is not difficult to create that to suit the applicant's case. So that document by itself is not conclusive. There are two witnesses in that document. C. W. 2 admits that at least one of them is alive. But he is not examined. The stamp paper for writing Ext. B-2 is seen purchased from one vendor C. V. Maichael on 9-4-1123 about 4 months before the date of Ext. B-2. It appears that the name of the purchaser of the stamp is written later in a different hand and the ink has soiled the paper. Though reference is made to an udampadi of 1123 in Ext. P-4 a copy of the gift deed executed by the debtor in favour of his wife and children the date of the udampadi is not mentioned. Further as per the terms of Ext. B-2, CW-2 was to pay one half of the income of the property to the debtor after the period of six years from the date of Ext. B-2 and take a receipt. No such receipt is produced in this case. Taking all these circumstances into consideration, I am not satisfied that the property was in the possession of CW-2 before the attachment was effected in O. S.68 of 1951, on the file of the District Court, Kottayam in 1951 But the debtor executed a gift deed in 1961 purporting to transfer the disputed property and another in favour of his wife and children. The copy of the gift deed is produced as Ext. P-4 Reference is made in that to the possession of this property with CW-2 and so it may not be incorrect to hold that me property was not with the debtor in 1961. In 1965 a payment order was passed allowing the Official Liquidator to realise the amount due under the decree referred to above charged on the property. In 1968 by Ext. B-1 sale deed a portion of the property is seen sold to the 2nd claimant and the rest of the property is seen conveyed to the 1st applicant by CW-2 and the donees under the gift deed Ext. P-4 Since no circumstance is brought out to show that the gift deed Ext P-4 is invalid it is not possible to hold that the judgment - debtor had any interest in the property at the time the payment order was passed or the Official Liquidator move the company court for making a payment order against the debtor.