MAGNIBAI KISHORJEE Vs. KESRIMAL SAWAIRAM AND ANOTHER

JUDGEMENT

(1.) THE only question which is material for the purpose of this appeal is whether the suit out of which this appeal arose, is one by a creditor decree -holder for avoiding a transfer on the ground of its having been made with intent to defeat or delay the creditors of the transferor and as such bad in law by -reason of provisions of S. 53, Transfer of Property Act.

(2.) PLAINTIFF Kesarimal obtained a decree against one Pema for money. While the suit was pending Pema effected a deed of gift in respect of certain houses belonging to him in favour of his wife Magnibai on 6 -10 -1948 and got it registered. On 18 -10 -1948 a decree was passed referred to above against Pema at the instance of the plaintiff. Kesarimal attached these houses. To this attachment Magnibai objected on the ground that she had obtained the same under a deed of gift duly registered. This objection of hers was allowed and the property was released from attachment. Plaintiff thereupon filed the present suit stating the aforesaid facts and claimed therein a declaration that the deed of gift dated 6 -10 -1948 having been fraudulently made to defeat his claim is inoperative and not binding upon him and that the property in suit is liable to attachment and sale in execution of his decree. On behalf of defendant Magnibai one of the points raised was that the suit being one to avoid a transfer said to have been fraudulently made by the judgment -debtor in favour of his wife, ought to have been brought in a representative capacity. The suit therefore in the present form is not competent. This contention was overruled by the trial Court. The trial Court relied upon the decisions in - - 'Budhermal v. Verharam', AIR 1946 Sind 78 (A); - -'Bas Kuar v. Gaya Municipality', : AIR 1939 Pat 138 (B) and Mohammad Ashgar Ali v. Sh. Mohammad Ishaq Ali', : AIR 1940 All 72 (C), for the view that under the circumstances of this case an unsuccessful decree -holder who has failed in an objection proceeding can bring a suit under O. 21 R. 63 and that a representative suit as contemplated under S. 53, Transfer of Property Act is not necessary.

(3.) SECTION 53, Transfer of Property Act is as follows :