WAMAN RAMKRISHNA GHOTGE Vs. GANPAT MAHADEO NEVAGI

JUDGEMENT

(1.) These are two appeals against the decision of the First Class Subordinate Judge, Ratnagiri, in Regular Civil Suit No. 106 of 1927 in which the plaintiff sued for a declaration that the properties mentioned in the plaint were liable for attachment and sale in execution of the plaintiff's decrees against defendants Nos. 5 and 6, and that the farkhat and award referred to in the plaint were fraudulent and therefore liable to be set aside.

(2.) The facts, in this case, in brief, are as follows :- On December 5, 1921, the plaintiff and defendant No. 5 and one Pandurang Yeshvant Vengurlekar formed a partnership named " Motiram Waman Vengurlekar " as traders and commission agents in Bombay, and while Waman, the plaintiff, subscribed Rs. 5,000 towards the capital, defendant No. 5 for himself and defendant No. 6 for Vengurlekar each passed a promissory .note for Rs. 5,000 to plaintiff who advanced Rs. 10,000 towards the capital on those promissory notes. The firm continued to do business until August, 1924, when the plaintiff separated from the first, though he continued to remain a creditor of the firm. On December 3, 1924, the promissory notes of defendants Nos. 5 and 6 were renewed. In August, 1925, the plaintiff sued defendants Nos. 5 and 6 and got decrees in February, 1926, against both of them for the amounts due under the promissory notes. He filed darkhasts and got the plaint properties attached. The attachment was, however, raised on claims having been preferred by defendants Nos. 1, 2 and 3 under Order XXI, Rule 58, contending that defendants Nos. 2 and 3 had separated from the joint family of the defendants by a farkhat dated April 8, 1925, and, secondly, that on November 29, 1925, there had been a decree passed on an award by which there had been a partition between defendant No. 1 on the one hand and defendants Nos. 5 and 6 on the other. By that decree defendants Nos. 5 and 6 were made responsible for the debts of the firm.

(3.) The main reasons of the plaintiff for bringing this suit were that both the farkhat and the award decree were obtained or got passed with the intention of defrauding the creditor, i.e., the plaintiff, and the learned Subordinate Judge has held that this case accordingly falls under Section 53 of the Transfer of Property Act. The alleged fraud, so far as it is alleged to arise from the award decree, tonsists in this that defendants Nos. 5 and 6 are alleged to have been given less than their legitimate share in the family property, and that these shares taken together, do not suffice to pay off all the debts for which these two defend ants were made liable under the decree.