PHAGOO MURAO Vs. TULSHI RAM TEWARI

JUDGEMENT

(1.) This is an interesting case and from one point of view not without difficulty. The plaintiff-appellant brought this suit for a declaration that certain property, which he alleged was his, was not liable to be sold in execution of a decree in another suit No. 489 of 1929.

(2.) The facts are that one Parmeshwar Datt mortgaged a certain property to one Tulshi. In 1876 Tulshi sold his mortgagee rights to one Dewa Datt. In 1893 the mortgagor Parmeshwar Datt sold the equity to Gurcharan, and Gurcharan in his turn gave the property, subject to the mortgage, to Nageshar and his brother. The sons of the original mortgagor, one Ram Bharose and Nageshar No. 2, in spite of the fact that their father had already transferred the equity, transferred it again to Kamta and Tulshi. A suit was brought by Nageshar and his brother against Kamta and Tulshi for recovery of the property, and that suit very naturally failed because it was obvious that their transferrers had nothing to transfer. Then Kamta and Tulshi very properly brought a Suit No 489 of 1920, against their transferrers for return of the purchase-money. This suit was successful. This suit was on 14 August 1920. On the same date the plaintiffs Kamta and; Tulshi filed an application for an interlocutory injunction restraining the defendants from transferring any other property that they might have. This application was not dealt with until 19 August 1920 and in the meantime the defendants on 17th August, no doubt, having knowledge of the application, had transferred all their other property by way of gift to their brother-in-law, Nankoo. That this transfer was done with the purpose of defeating Kampta and Tulshi claim there can be no doubt. On 26 January 1921 Kampta and Tulshi were successful in their suit and a decree was passed in their favour. Nothing apparently, however, was done by the successful plaintiffs to execute their decree or to proceed to have the transaction between the defendants in that suit and Nankoo set aside under Section 55, T.P. Act. One, year and seven months passed, and eventually on 28th July 1922 Nankoo sold the property which had been given to him by Ram Bharosa to the present plaintiff-appellant, one Phagoo. Up to date the defendants have done not ling whatever to have the transaction between Nankoo and Ram Bharosa set aside or declared to be void under Section 53, T.P. Act, having in fact by their laches allowed Phagoo to buy the property in question and to pay money for it. It is to be noted that if the defendants in this suit had taken proper action with reasonable promptitude this case would never have been had to be brought and the present plaintiff would never have been placed in the position in which be now is. It was not till 1923 that the present defendants took steps to execute the decree against the property which had been sold to the present plaintiff. That, of course, necessitated the plaintiff bringing the present action. Both the lower Courts have found that the plaintiff had brought the property in dispute bona fide and for value. The trial Court found in favour of the plaintiff but the lower appellate Court set aside the decree on the ground that the proviso to Section 53, T.P. ACT, had no application in this case.

(3.) It is clear that the transfer from Ram Bharosa to Nankoo was under Section 53, T.P. Act, a voidable transaction at the option of the defendants in this case. They have, however, never exercised that option. They certainly "had not exercised the option, at the date of the transfer from Nankoo to the present plaintiff and, therefore, I have difficulty in following the learned Judge of the lower appellate Court. The whole question is: did Nankoo have anything to transfer? It is clear that he had a perfect title to transfer until the transfer to him had been avoided by the defendants under 3. 53. The learned Judge of the Court below, in my opinion, has gone wrong in his law through a misapprehension of the effect of the decision in Basti Begam V/s. Banarsi Prasad [1908] 30 All. 207.That authority was dealing with the question of a fictitious mortgage and it is clear from a perusal of the judgment in that case that it is no authority for the present case which has nothing to do with a mortgage but is concerned with conveyance. In fact the distinction between a conveyance and a mortgage in a matter like this is clearly pointed out in the case of Basti Begam V/s. Banarsi Prasad [1908] 30 All. 207.