BHIKARILAL Vs. RAMDIN

JUDGEMENT

(1.) THE facts of this case have been fully stated in the judgments of the two lower Courts. The appellants, while so far accepting the findings of fact arrived at therein, have urged that, in any event, Rs. 141-10.9 of the consideration of the sale-deed was on account of old debt, while the balance of Rs. 158-9-3 paid before the Sub-Registrar was subsequently taken back by Defendant 5. On these findings it has been urged that, at the most, what had happened was that undue preference was shown to a single creditor: of. Musabar Sahu v. Lala Hakim Lal [1916] 48 Cal. 521 and Mina Kumari Bibi v. Bijoy Singh Dudhuria [1917] 44 Cal. 682.

(2.) THE legal proposition that undue preference to a creditor does not necessarily fall within Section 53 of the Transfer of Property Act, was not seriously disputed on behalf of the respondents. But what was urged was that the real crucial point in a case like the present concerns what was the real intention of the parties to the deed. On this point, I think, there can be no possible doubt in the circumstances of the present case. Appellant 1 was the maternal uncle of the minors; the money paid before the Sub-Registrar was subsequently taken back; the house was worth more than the price purported to have been paid for it; possession remained with Defendants 1-4 even after the sale; the expenses of the objection proceeding were debited to the Defendant 1; and from each and every point of view, the transaction has been held by both the lower Courts to be redolent of fraud. The mere fact that the appellant No. 1 was one of the creditors, particularly keeping in mind his relationship to the parties, does not necessarily imply that the house was transferred on account of his debt and in order to give him an undue preference as compared with other creditors. The circumstances of the case all, in short, go to show that there was no intention of the parties to this fraudulent and colourable sale-deed that title should pass to the vendees, and, on this view of the case, the appellants are obviously out of Court.