ABDULLAKHAN DARYAKHAN MHADIK Vs. PURSHOTTAM DAMODAR SURA

JUDGEMENT

(1.) THIS appeal arises out of a suit filed under Section 53 of the Transfer of Property Act for a declaration that the sale-deed passed by defendant No.1 in favour of his son, defendant No.2, on October 19, 1929, was passed with intent to defeat or delay the creditors of defendant No.1 and was, therefore, not binding on the plaintiff and other creditors.

(2.) THE main defence was that the sale was bona fide and for valuable consideration and not intended to defeat or delay the creditors of defendant No.1, and that the plaintiff's suit was time-barred under Article 91 of the first schedule to the Indian Limitation Act, 1908.

(3.) THE concurrent finding of the Courts below that the sale by defendant No.1 to defendant No.2 is fraudulent and was intended to defeat and delay the creditors of defendant No.1 is binding in second appeal. But Mr. Coyajee contends that the finding is based on inferences drawn from proved circumstances, and if the inference is not justified, it is open to this Court to consider whether the transaction is proved to be fraudulent and intended to defeat and delay the creditors of defendant No.1. THE lower appellate Court has found that defendant No.1 was in debts, that defendant No.2 used to send him amounts from time to time, that those sums amounted to Rs. 6,000 up to 1929 and that they were utilised by defendant No.1 towards the payment of his debts. But it has held that the amounts were not advanced by defendant No.2 as loans to his father and that there was no agreement for repayment of those amounts to him. It has, therefore, come to the conclusion that the sale of all his property by defendant No.1 was really without any consideration, and in view of the fact that it was passed only two days before the plaintiff filed this suit and that even after the suit defendant No.1 himself continued to reside in the house and defendant No.2 continued to send him amounts as before, it has held that the sale was fraudulent. Mr. Coyajee points out that under Section 25(2) of the Indian Contract Act, 1872, a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor, is a valid agreement, and, although defendant No.2 may have voluntarily sent amounts to his father, the latter might promise to repay the amount, and a sale-deed in repayment of such amount must be deemed to have been for good consideration and that the sale-deed cannot be regarded as void for want of consideration and is binding on defendant No.1. But that is not the question which is to be decided in this case. A good deal of the correspondence between defendant No.1 and defendant No.2 has been produced and it shows that defendant No.2 did not send the money by way of loan to his father but he wanted to help him out of his indebtedness through his affection or as a duty towards his father. Defendant No.1 was, therefore, not under any obligation to return the money to his son. THE correspondence shows that he was receiving money from 1922 and till 1929 he never thought of compensating his son, but suddenly on the eve of the plaintiff's suit he conveyed to him not only all his lands but even the house in which he was living without having any regard to his other sons. He knew that his son in South Africa was prospering well and was not in need of any property and it is not likely that he would deprive his other sons of their share in order to benefit his rich son. THE intention obviously was to screen his property from the plaintiff who was about to file a suit against him. THE plaintiff says that he was constantly asking him to repay his dues, and when the lower appellate Court has stated that the amounts advanced by defendant No.2 to defendant No.1 were not loans, all it wanted to say was that defendant No.2 could not be treated as one of the creditors of defendant No.1, so that the sale of property for the satisfaction of one of the creditors in preference to others cannot be regarded as fraudulent. It was open to defendant No.1 to prefer one creditor to another and pay his dues to any creditor by the sale Of his property. But as defendant No.1 had not taken any loans from defendant No.2, the latter cannot be deemed to be his creditor. THEre is, therefore, no doubt that the sale-deed was brought about with the sole intention of defeating or delaying the plaintiff's claim.