CHIDAMBARA GOUNDAR Vs. K C SENNIAPPA GOUNDER

JUDGEMENT

(1.) THE second defendant in the suit is the widow of one Kumaraswami Gounder, who is the elder brother of the first defendant-appellant. She executed a promissory note on 5-8-1954. The holder assigned the promissory note to the plaintiff. The plaintiff issued a notice to the promisor on 25-9-1954. On 2-10-1654 the 2nd defendant widow purported to execute a release deed in favour of the first defendant-appellant, brother of her husband. On the same day, a maintenance deed was executed by the first defendant in favour of the second defendant. Subsequently, the plaintiff filed a suit upon the promissory note; but that suit was dismissed by the trial court. When the matter was pending in appeal, the parties compromised and there was a decree in the promissory note suit. The plaintiff, in execution of that decree, attached the suit properties as belonging to the husband of the 2nd defendant. The first defendant came in with a claim petition on the strength of the release deed. His case was accepted and the attachment was raised. It is against that order that the suit was filed by the plaintiff appearing in a representative capacity on behalf of himself and on behalf of other creditors of the 2nd defendant, praying that the claim order should be set aside as the alleged release deed had been executed with a view to defeat and delay the creditors.

(2.) BOTH the courts have concurrently held that the object of bringing into existence this release deed must have been only with a view to defeat the claims of the creditors. This conclusion was partly based upon the provisions of Act V of 1954 which enacted a statutory presumption that every transfer of immovable property by a debtor entitled to the benefits under the Act during a specified period shall be presumed, until the contrary is proved, to have been made with the contrary is proved, to have been made with intention to defeat or delay the creditors of the transferor. The case set up by the first defendant-appellant that there was a valid surrender by the widow was rejected. His further contention that a surrender by a Hindu widow does not amount to a transfer which would bring the case within the scope of S. 53 of the Transfer of Property Act was also repelled. The appellant canvasses these conclusions in this second appeal.

(3.) THE short argument of Mr. T. K. Subramania Pillai, learned counsel for the appellant is that though the position of a Hindu widow might have been improved for the better by reason of the Act, she is yet competent to efface herself and accelerate the reversion. Having regard to the fact that there was due provision made for her maintenance she cannot now ask for partition of the property. It is said that the widow has no doubt the right to ask for a partition of the share that would have fallen to her husband. So long as she does not do so, she continues to be a member of the family entitled to the same interest as he husband had in the joint family. But if adequate provision had been made for her maintenance, then she can no longer ask for partition and in such a case where her interest has been replaced by a maintenance arrangement, there is no interest in the property which the creditors for the widow can attach. So runs the argument.