SHYAM BEHARI LAL Vs. PATIRAM

JUDGEMENT

(1.) THIS is a Defendant's second appeal arising out of a suit for declaration that the Plaintiff was the owner and Bhumidhar of plots Nos. 287, 297, 298 and 299 total area 3.52 acres, purchased by him for Rs. 1500/ -from Defendant No. 2, Ram Charan, per sate deed dated 23 -5 -1963, registered on 25 -5 -1963. Also that the said land was not liable to be attached in execution of the decree in suit No. 203 of 1963 obtained by Defendant No. 1 against Defendant No. 2 in a suit filed on 24 -5 -1963, in which an attachment order was obtained on 25 -5 -1963, on which date attachment before judgment was also made. The suit was filed under Order 21, Rule 63 Code of Civil Procedure after the Plaintiff's objection in execution proceedings to attachment had failed. The decree -holder Defendant No. 1 contested the suit.

(2.) THE finding of the trial court on the crucial issue which alone is in controversy in second appeal was that though Defendant No. 2 had sold the property to the Plaintiff with intent to defeat his creditors including the decree holder Defendant No. 1, the Plaintiff was a purchaser for consideration in good faith within the meaning of Section 53 of the Transfer of Property Act and, therefore, his transfer was not impeachable as a fraudulent one. On this finding the suit was decreed with costs.

(3.) THE only point canvassed by the Learned Counsel for the Appellant is whether the finding about the Plaintiff's good faith is sustainable. The basis on which this finding was arrived at by the trial court were : (i) the Defendant had failed to prove that the sale was without consideration and Rs. 730/ -had not been paid before the sale deed and Rs. 770/ -before the Sub -Registrar, (ii) possession had been passed to the Plaintiff, (iii) the Defendant had represented that he had to sell the property as he needed money for the marriage of his son and to pay off the debt of the Cooperative Bank, (iv) the evidence of the decree -holder that he had told the Plaintiff about his decree and asked him not to get the sale deed executed was not believable and the Plaintiff was not proved to have knowledge that Ram Charan was indebted to Defendant No. 1, (v) the evidence showed that Ram Charan's house in the village had fallen and he was in railway employment at Agra, (vi) the Plaintiff was not related to or friendly with Defendant No. 2, the Plaintiff being a Chamar by caste and Defendant No. 2 being a Lodh, and (vii) even the consideration could not be regarded as inadequate for the decree -holder had himself mentioned the value of the property as Rs. 1200/ -in his application for execution and as Rs. 1400/ -in his statement under Order 21, Rule 66 Code of Civil Procedure dated 16 -3 -1963. He had conceded in his oral evidence that he thought that this was the proper market value and it was only later on when the property was actually auctioned for Rs. 5,500/ -that he realised that the property was worth so much. In my opinion, these are relevant and legitimate basis for the finding that the Plaintiff was a transferee in good faith for consideration.