M MOHAMED KASSIM Vs. C RAJARAM

JUDGEMENT

(1.) THE unsuccessful third defendant in O.S.No.97 of 1975 on the file of the Subordinate Judge, Nagercoil, is the appellant in A.S.No. 756 of 1979. Defendants 5, 6 and 7 who are the legal representatives of the deceased 2nd defendant in the said suit, are the appelants in A.S.No. 1177 of 1979 and the first defendant in the said suit is the appellant in A.S.No. 82 of 1982.

(2.) THE first respondent in all these appeals is the plaintiff in the said suit and he filled the same in a representative capacity for himself and on behalf of all the creditors of the first defendant for a consideration that the sale deeds executed by the first defendant are void and not binding on the general body of the creditors of the first defendant and also for a decree against him for realisation of Rs. 49,909.25 with interest and for costs of suit. THE plaintiff has also prayed for an injunction against the purchasers of the suit properties from the first defendant from effecting any alterations in the suit properties. THE material allegations in the plaint filed by the plaintiff are as follows: On 14.4.1974 the first defendant executed a promissory note in favour of the plaintiff for a valuable consideration of Rs.42,296 agreeing to pay the same on demand or order with interest 12 per cent per annum. THE first defendant has not paid back any amount inspite of repeated demands. THE first defendant was the owner of the suit properties and he had no other properties. On 25.3.1975 the first defendant executed a sale deed in favour of the fourth defendant relating to item No.1. On the same day, the first defendant executed another sale deed in respect of item No.2 in favour of the second defendant. Subsequently, on 25.6.1975 the fourth defendant sold item No.l to the third defendant. All the aforesaid sale deeds have been brought into existence by the defendants with intent to defeat and delay the execution of the decree that may be passed against, the first defendant. THEse sale deeds have been registered in Kerala, at Parasala Sub Registrar's Office, with a view to prevent the creditors from gaining knowledge about the same. In all the sale deeds on imaginary item, in which the first defendant had no right, has been included as item 2 so as to facilitate registration, in Kerala. THE defendants 2 and 4 are related to the first defendant and the third defendant is a close friend of the other defendants. Defendants 2 to 4 are not transferees in good faith. THE transfers have been effected in pursuance of a scheme perpetrated by the first defendant in collusion with the other defendants with a view to place the properties out of the reach of the plaintiff and other creditors. THE sale deeds are not supported by consideration and necessity. THE sales are collusive and fraudulent transactions. THE first defendant was working as Manager under the plaintiff in the Petrol Bunk at Vadesery. From 16.4.1975 the first defendant suddenly ceased to attend the office and he sent intimation to the plaintiff that he was laid up in his house due to blood pressure. Subsequently, on enquiry, the plaintiff learnt that the first defendant was deliberately evading to surrender the keys of the almirah and the table. THE plaintiff has filed this suit in a representative capacity. THE plaintiff is entitled to a decree for realisation of Rs. 909.25 due to him with interest thereon. THE plaintiff is entitled to a decree for a declaration that the sale deeds executed in favour of defendants 2 to 4 are void and not binding upon him and other creditors of the first defendant.

(3.) THE third defendant also filed a separate written statement contending as follows: This defendant has no knowledge about the alleged borrowing by the first defendant from the plaintiff. This defendant was in search of a house in Nagercoil to settle his family and for conveniently educating his children. This defendant came to know that the plaint item 1 was coming up for sale. After verifying the documents of title, this defendant has purchased it. THE price was fixed at Rs. 30,000. Out of the sum of Rs.30,000, a sum of Rs.17,510.33 due to the building cooperative society was directed to be paid and the balance was paid , in cash to the vendor. This defendant is a transferee in good faith and for' valuable consideration. At the time of purchase the plaint item No.1 was not in good condition. THEre was no proper compound wall. THEre was no cattle shed. For the staircase, no protection rails had been provided and there were also cracks in the 3 walls of the main hall. After the purchase, this defendant after consulting a qualified Engineer had repaired the walls. An additional room was constructed in the first floor by this defendant. For effecting the various improvements this defendant has spent about Rs. 30,000.