ABDALLAKHAN DARYAKHAN Vs. PURSHOTTAM DAMODAR

JUDGEMENT

(1.) THIS appeal arises from a suit filed by the plaintiff under Section 53 of the Transfer of Property Act for a declaration that the sale-deed passed by defendant No.1 in favour of one of his sons, defendant No.2, on October, 19, 1929, was passed with intent to defeat or delay the creditors of defendant No.1 and as such was not binding on the plaintiff and the other creditors of defendant No.1. The plaintiff alleged that defendant No.2 had left India for South Africa some time in 1920 to earn his living, and that he succeeded in making large profits in the business undertaken, by him in that country. He used to send sums of money to his father in India from time to time. On October 19, 1929, the father, defendant No.1, executed a sale-deed in favour of his son, defendant No.2, for Rs. 2,500, THIS sale-deed purported to convey all the immovable properties belonging to the father. THIS document was registered on October 21, 1929. On the same date the plaintiff filed suit No.259 of 1929 against defendant No.1 to recover Rs. 3,999. Thereafter on October 28, 1929, the plaintiff impleaded to the said suit all the sons of defendant No.1. In June 1931, the said suit was dismissed against the sons, but was decreed against the father to the extent of Rs. 1,001. Against the said decree appeals were preferred both by the plaintiff and defendant No.1. Both the appeals were, however, dismissed in 1933 and the decree passed by the trial Court was affirmed. In 1933 the plaintiff-decree-holder made an application to execute the decree; but the said application proved infructuous. In 1934 he filed another darkhast application and sought to recover the decretal amount by attachment and sale of crops standing on the land which along with other properties had been sold by defendant No.1 to defendant No.2 in 1929. Defendant No.2 objected to the attachment of the crops, but apparently his objection was overruled and the crops were attached and sold. The decree-holder however realised only Rs. 36 as a result of the sale of the said standing crops. In 1936 a third darkhast was filed by the plaintiff decree-holder in which he claimed that the land belonging to defendant No.1 itself should be attached and sold. Objections were raised to the attachment of the said land on behalf of defendant No.2. The leanred Judge thereupon directed the plaintiff to obtain a declaration that the sale-deed under which the land in question had been sold to defendant No.2 by defendant No.1 was not binding on the plaintiff. As a result the plaintiff, had to bring the present suit for a declaration that the said sale-deed is fraudulent and does not bind the creditors of defendant No.1. As required by Section 53 of the Transfer of Property Act this suit has been instituted by the plaintiff for and on behalf of all the creditors of defendant No. 1 under Order I, Rule 8, of the Civil Procedure Code.

(2.) THIS claim was resisted by defendant No.2 mainly on two grounds. It was contended that the transfer impeached in the suit was bona fide and for valuable consideration, and it was alleged that the said transfer was not intended to defeat or delay the creditors of defendant No.1. It was further contended that the present suit under Section 53 of the Transfer of Property Act was barred by limitation under Article 91 of the Indian Limitation Act.

(3.) MR. Somjee has further contended that the Courts below were wrong in holding that the present suit was governed by Article 120 of the Indian Limitation Act. He argues that the proper article to apply would be Article 91. Article 91 applies to suits to cancel or set aside instruments not otherwise provided for. Prima facie suits to set aside instruments can be filed only by persons who are parties to the instruments in question, and the object of such suits is, as the article itself expressly states, to cancel or set aside instruments. On the other hand, suits under Section 53 of the Transfer of Property Act are instituted by creditors who are not parties to the transactions impeached and the claim made in such suits is not to cancel or set aside such transfers, but to obtain a declaration that such transfers do not bind the creditors on whose behalf such suits are filed. Even if such suits are decreed, the instruments evidencing the transfers in question are not cancelled or set aside but are only held to be not binding on the creditors of the transferors. The nature of such suits is, in our opinion, substantially different from that of the suits referred to by Article 91. In that view we are not prepared to hold the suits brought by creditors under Section 53 of the Transfer of Property Act are governed by Article 91. In our opinion, such suits would be governed by Article 120 of Indian Limitation Act. In Saburdas Mahasukhram v. Gopalji Nandas (1942) 45 Bom. L. R. 526 this Court was dealing with a suit brought by a stranger to set aside a decree and the question which arose for decision was whether such a suit would be governed by Article 95 or Article 120 of the Indian Limitation Act. It was held that it is Article 120, and not Article 95, which would govern such a suit. The same view has been accepted in Lal Singh v. Jai Chand (1930) I. L. R. 12 Lah. 262 and Parkash Narain v. Raja Birendra Bikram Singh (1931) I. L. R. 7 Luck. 131.