JAGAT CHANDRA SARMA CHOWDHRY Vs. RADHA NATH CHUCKERBUTTY

JUDGEMENT

(1.) The plaintiff in these suits obtained a money-decree against Rama Nath, the defendant No. 5. He attached his homestead land. The other defendants put in claims as purchasers of the interest of Rama Nath which were allowed. Accordingly these suits were brought by the plaintiff to establish that the homestead was Ram Nath s property.

(2.) The suits were decreed by the Munsif. But on appeal the learned Subordinate Judge held that the purchases of the defendants were made in good faith for consideration. Accordingly he dismissed the suits.

(3.) The learned Pleader for the appellant has criticised the following passage in the learned Subordinate Judge s judgment--" No doubt the value fixed for the homestead five hears at Rs. 250 only is less than the ordinary market-price of it. But considering that the purchasers allowed Rama Nath to dwell in the homestead it appears clear that the purchasers knew it fully well in their purchasing that they would be able to possess the homestead land by turning out Rama Nath from it and that they would have to allow Rama Nath to possess this homestead land on payment of very low rate of rent and Rama Nath also must have in his mind that in selling to the purchaser he would have the advantage of remaining in possession of the homestead portion." It is argued that if Rama Nath had sold this property at less than its real value in order that he might retain some benefit or advantage to himself, that in itself constitutes bad faith, and the sale, therefore, cannot be supported. Reliance is placed on the decision in the case of Hakim Lal v. Mooshahar Sahu 34 C. 999 : 6 C.L.J. 410 : 11 C.W.N. 889. The learned Judges in that case certainly said that if the transaction extended beyond the necessary purpose of a mere preference, so as to secure to the debtor, some benefit or advantage or to unnecessarily hinder and delay other creditors, the transfer was fraudulent. I do not, however, understand the learned Judges who decided Hakim Lal v. Mooshahar Sahu 34 C. 999 : 6 C.L.J. 410 : 11 C.W.N. 889, as laying down that if a debtor retains some interest in property sold by him that fact makes the transaction fraudulent in all cases as a matter of law. If property is sold below its value on the understanding that the seller, shall still be entitled to occupy it at a low rate of rent that, no doubt, may be strong evidence "that the transaction is not made in good faith. But it appears to me to be no more than a; piece of evidence. The lower Appellate Court has to weigh that evidence and to decide what value should be attached to it; If after considering it he still comes to the conclusion that the sale was effected in good faith for valuable consideration, I do not think that I in second appeal can interfere with that decision.