DAYANANDAN Vs. VENUGOPAL NAIDU

JUDGEMENT

(1.) THIS second appeal by the defendants arises out of a claim suit instituted by the respondent. He was a creditor of one Bhaktavatsala under a promissory note executed by him and he had obtained a decree on that footing during his lifetime. Bhaktavatsala got divided from his sons and the properties which had been allotted to his share were settled by him on the defendants, of whom the second was his concubine and the first his illegitimate son by her. The lower appellate court differing from the trial Court has found that the settlement in favour of the defendants comprised the entire properties which Bhaktavatsala owned at the time and that the defendants, therefore, are universal donees.

(2.) THE respondent in execution attached one of the properties covered by the settlement but the defendant's claim on the basis of the settlement was allowed. The respondent was, therefore, driven to file a suit out of which this second appeal arises. The trial Court found that the settlement deed was valid and acted upon and that the defendants were not universal donees. On that view, it dismissed the suit. On appeal by the respondent, the lower appellate Court, as I have already mentioned, considered the defendants in be universal donees and as regards the validity of the settlement deed its view was that it was in fraud of the creditors although the only debt owed by Bhaktavatsala at the time of the settlement or even earlier at the time of the partition between himself and his sons was that due to the respondent. The lower appellate Court, therefore, allowed the appeal and decreed the suit. That is how the defendants have come up to this Court in second appeal.

(3.) IT is contended for the appellants that the defendants under the settlement could not be regarded as universal donees. The basis for this argument is a recital in the settlement deed that the properties which the donor might after the execution of the document acquire and the other "remaining properties" should also be taken by the donees. The lower appellate Court on the evidence before it came to the conclusion that this recital did not mean that the settlement was not in regard to the entirety of the properties possessed by Bhaktavatsala at the time he executed the document. In coming to that conclusion it was also aware of the fact that no other property was shown to have been acquired subsequently or left by Bhaktavatsala. In my opinion the lower appellate Court was right in its view that the settlement of Bhaktavatsala constituted the defendants as universal donees.