RAMGOPAL KURMI Vs. BADRILAL GHANSIRAM

JUDGEMENT

(1.) THIS first appeal arises out of a suit instituted by the attaching decree -holder under Order 21, Rule 63 of the Code of Civil Procedure.

(2.) ONE Surat Singh was indebted to Badrilal Plaintiff. On Surat Singh's death his estate consisting of a house and some Zamindari property came in the hands of his widow Kasturi Bai. On January 18, 1946, Badrilal instituted a suit for the recovery of Rs. 2,200 against Kasturi Bai in the Court of District Sub -Judge, Ujjain, (Civil Suit No. 139 of Samvat 2002). A decree was passed in favour of Badrilal on June 28, 1948 against Kasturi Bai, to the extent of the estate received by her from her deceased husband. The decree was transferred to the Court of Civil Judge, First Class, Shajapur, for execution. In Execution Case No. 270 of 1952 Badrilal got the suit house and land attached. An objection petition was filed under Order 21, Rule 58 of the Code of Code of Civil Procedure by Ramgopal and Ramchandra Appellants before us. They succeeded and the property was released from attachment. The objection petition was based on a sale deed dated January 22, 1947, whereby Ramgopal and Ramchandra had purchased the suit property from Kasturi Bai. Aggrieved by the order releasing the property from attachment, this suit was instituted by Badrilal against Ramgopal and Ramchandra, successful objectors; and Kasturi Bai, the third Defendant. The learned trial Judge held that the sale in favour of Ramgopal and Ramchandra was fictitious. He, therefore, held that the sale deed dated January 22, 1947 was ineffective so far as the Plaintiff was concerned. It is against this judgment and decree that the Defendants Ramgopal and Ramchandra have come up to this Court in appeal.

(3.) AT the time of the execution of the sale deed nothing was paid by the transferees to the transferor. It was vaguely stated therein that the price had already been paid by the vendees; "zare saman Rs. 6,500 Chhe hazar panch sau rupeye abd azin tamam was kamal berun adalat registry mushtariyan ki janib se maine wasul pa liya hai". It is not mentioned on what date, at what place, in what manner was the price paid. It is also not shown why the price was paid before the execution of the sale deed. There is no satisfactory evidence on the record to prove that Kasturi Bai was indebted to the vendees. The latter did not produce their books of account. According to Kishore Singh, D. W. 2, who is Kasturi Bai's son -in -law, stated to the Court that the creditors used to make entries in their books. Siddhnath Jagannath D. W. who was produced by the Defendants had attested the sale deed but his statement in the Court was that no money was paid in his presence to Kasturi Bai at any time. Siddhnath D. W. stated that Rs. 4,000 were paid by Ramgopal and Ramchandra to Kasturi Bai but in cross -examination he admitted that no money was counted in his presence nor was any receipt passed at that time. He further stated that Ramgopal and Ramchandra gave her, at the same time, a statement of previous account. No such account has been produced. Ramchandra Defendant examined himself but he made no endeavour to prove any previous debt. It is also found in the statement of Siddhnath D. W. that even after the sale Kasturi Bai continued to reside and always resided in the suit house itself. These facts lead to the irresistable conclusion that the transfer was not real; it was only show of a transfer.