P YELLAMANDA Vs. B PEDA AMMAYYA

JUDGEMENT

(1.) appellants are defendants. This appeal arises out of a suit filed by the creditors impeaching the alienations made by the 1st defendant to defeat an delay the claims of the creditors, The averments in the plaint may be briefly stated: The 1st defendant entered into a partnership with the 1st plaintiff and did tobacco business under the name and style of 'Boggavarapu Peda Ammayya & Co., Guntur. The 1st plaintiff represented the joint family consisting of himself and his father. The 1st plaintiff filed 0 S No. 105 of 1964 for dissolution of the firm and.settlement of accounts and in the said suit the father and father-in-law of the 1st defendant were impleaded. During the pendency of this suit, a suit was filed for a declaration that the four documents, viz. the gift deeds dt 5-7-1963 and 2-9-1964 for Ac. 1-50 cents and Ac.4-75 cents respectively executed by the 1st defendant's father in favour of the daughters of the 1st defendant, the will dated 2-11-1964 executed by 1st defendant's father bequeathing his share of property to 1st defendant's son and also the partition deed dated 2-9-64 between the 1st defendant and his father, are not binding as they are fraudulent and executed to defeat the claims of the creditors. Both the suits were tried together and a final decree was passed in 0 S No. 105 of 1954 and the 1st defendant alone was found liable for rendition of accounts to the tune of Rs. 1,45,956-50 ps., and the 1st defendant's father and his father-in law were exonerated. In the present suit the trial court found that the gift deeds as well as the partition were executed with a fraudulant intention to defeat the claim of the creditors of 1st defendant and the provisions of Section 53 of Tranfer of Property Act are attracted and, therefore, they are liable to be set aside. In so far as the will, it is held that the plaintiffs have no right to question its validity under Section 53 of the Transfer of Property Act. On appeal, the judgment and decree of the trial court, setting aside the gift deeds and partition, is confirmed.

(2.) Ex. A. 1 dated 2-9-1964 is a gift deed executed by the 1st defendant and his father in favour of the daughter of the 1st defendant in respect of Ac. 1-95 cents of land. Ex. A. 2 dated 2-9-1964 is the certified copy of the partition daed executed between the 1st defendant arid his father Seetharamaiah. Ex. A. 3 date 5-7-1963 is the gift deed for Ac 1 -50 cents executed by the father of the 1st defendant in favour of the 4th defendant.

(3.) The learned counsel for the appellants Sri Annamraju Hanumantha Rao, contends that' the partition is not a transfer within the meaning of the expression 'transfer' in Section 53 of the Trans'er of Property Act and as the gift deeds in favour of daughters comprise a small portion of the lands belonging to the family and they should be considered as towards 'Pasupu Kunkuma' and as such both the courts erred in concluding that they are hit by Section 53 of the Transfer of Property Act. The learned counsel for the respondents, Sri Movva Chandrasekhara Rao, contended that the transfer under Section 53 of the Transfer of Property Act takes in its fold the partition and particularly the fraudulent partition givining away major slice of the property much more than the share due to the member and in so far as gifts to daughters both the courts concurrently held that the predominant intention of the gifts is to evade the payment of debts and the proposed purpose towards maintenance for Pasupu Kumkama is merely a ruse. Section 53 of the Transfer of Property Act. to the extent relevant, is as follows: