PREMRAJ SETH Vs. RAMWATIBAI

JUDGEMENT

(1.) THIS is a second appeal by the plaintiff -decree -holder and arises from a suit for a declaration under Order XXI, Rule 63 of the Code of Civil Procedure. It relates to a house which was the ancestral property of the judgment -debtor Bholaram (defendant No. 2), who is the husband of the objector Smt. Ramwatibai (defendant No. 1).

(2.) IT is an admitted fact that a partition of the joint family property between defendant No. 2 Bholaram, his son Surendra and his mother Smt. Lachhobai took place on 27th September 1946, so that Bholaram should not squander Surendra's share. It is alleged that Bholaram is addicted to wine and other vices. In this partition Bholaram got a much small share, and the house in suit fell to his share. Barely within a month, i.e. on 21st October 1946, the judgment debtor Bholaram executed the sale -deed in favour of his wife Smt. Ramwatibai for a consideration of Rs. 2,000, and it is stated that the house has been actually transferred to his wife. This house in suit was attached by the decree -holder before judgment. Defendant No. 1 Ramwatibai objected to the attachment on the basis of the sale -deed dated 21st October 1946 and this objection was allowed. The plaintiff decree -holder then filed a suit under Order XXI, Rule 63 of the Code of Civil Procedure, which was decreed by the trial Court which held that the transaction of sale which took place between husband and wife on 21st October 1916 was bogus and a sham one, in which no consideration had actually passed. Against this judgment Smt. Ramwatibai went up in appeal to the District Judge, Chhindwara, who reversed the finding and dismissed the suit, The plaintiff has, therefore, come up in second appeal to this Court,

(3.) IN my opinion, there is a distinction between a fictitious and a fraudulent transfer, and this distinction has been brought out clearly in certain decisions; Mt. Saraswati Kuar vs. Mahabir Prasad, A.I.R. 1922 All. 476, Parbhu Nath Prasad vs. Sarju Prasad, A.I.R. 1940 All. 401, Jagdamba Pande vs. Ram Khelwan Upadhya, A.I.R, 1942 All. 344, and Mt. Rukiabi Begum vs. Radha Kishan : A.I.R. 1944 All, 214. If a deed is fictitious, is is merely a waste paper and no title passes to the ostensible transferee; the property continues to vest in the transferor and is liable to attachment and seizure by his creditors. In other words, it means that if the transaction is fictitious, it was never intended to exist. If, on the other hand, a transaction was fraudulent, it means that it was intended to exist, though its object was to defeat the legal rights of others. If the plaintiff's basis was under section 53 of the Transfer of Properly Act, then there is no doubt that the frame of the suit should have been of a representative character. If, however, the stand taken by him is on the fictitious character of the transfer, the plaintiff can bring he suit in his undivided capacity. It is, however, quite clear from the decisions mentioned above that if the decree -holder pleads that the dead of sale by the judgment debtor was a sham and bogus transaction and that what it purported to be conveyed under the instrument of sale was never conveyed at all and remained the property of the vendor, there can be no necessity to institute a suit under section 53 of the Transfer of Property Act, as there was in fact no transfer and there is nothing which can be avoided. In such a case, he is entitled to a declaration that the property which purports to have been conveyed thereunder is liable to attachment and sale in execution of the creditors decree.