ABDALLAKHAN DARYAKHAN Vs. PURSHOTTAM DAMODAR

JUDGEMENT

(1.) This appeal arises from a suit filed by the plaintiff under Section 53 of the Transfer of Property Act for a declaration that the sale-deed passed by defendant No. 1 in favour of one of his sons, defendant No. 2, on October, 19, 1929, was passed with intent to defeat or delay the creditors of defendant No. 1 and as such was not binding on the plaintiff and the other creditors of defendant No. 1. The plaintiff alleged that defendant No. 2 had left India for South Africa some time in 1920 to earn his living, and that he succeeded in making large profits in the business undertaken, by him in that country. He used to send sums of money to his father in India from time to time. On October 19, 1929, the father, defendant No. 1, executed a sale- deed in favour of his son, defendant No. 2, for Rs. 2,500, This sale-deed purported to convey all the immovable properties belonging to the father. This document was registered on October 21, 1929. On the same date the plaintiff filed suit No. 259 of 1929 against defendant No. 1 to recover Rs. 3,999. Thereafter on October 28, 1929, the plaintiff impleaded to the said suit all the sons of defendant No. 1. In June 1931, the said suit was dismissed against the sons, but was decreed against the father to the extent of Rs. 1,001. Against the said decree appeals were preferred both by the plaintiff and defendant No. 1. Both the appeals were, however, dismissed in 1933 and the decree passed by the trial Court was affirmed. In 1933 the plaintiff-decree-holder made an application to execute the decree; but the said application proved infructuous. In 1934 he filed another darkhast application and sought to recover the decretal amount by attachment and sale of crops standing on the land which along with other properties had been sold by defendant No. 1 to defendant No. 2 in 1929. Defendant No. 2 objected to the attachment of the crops, but apparently his objection was overruled and the crops were attached and sold. The decree-holder however realised only Rs. 36 as a result of the sale of the said standing crops. In 1936 a third darkhast was filed by the plaintiff decree- holder in which he claimed that the land belonging to defendant No. 1 itself should be attached and sold. Objections were raised to the attachment of the said land on behalf of defendant No. 2. The leanred Judge thereupon directed the plaintiff to obtain a declaration that the sale-deed under which the land in question had been sold to defendant No. 2 by defendant No. 1 was not binding on the plaintiff. As a result the plaintiff, had to bring the present suit for a declaration that the said sale-deed is fraudulent and does not bind the creditors of defendant No. 1. As required by Section 53 of the Transfer of Property Act this suit has been instituted by the plaintiff for and on behalf of all the creditors of defendant No. 1 under Order I, Rule 8, of the Civil Procedure Code.

(2.) This claim was resisted by defendant No. 2 mainly on two grounds. It was contended that the transfer impeached in the suit was bona fide and for valuable consideration, and it was alleged that the said transfer was not intended to defeat or delay the creditors of defendant No. 1. It was further contended that the present suit under Section 53 of the Transfer of Property Act was barred by limitation under Art. 91 of the Indian Limitation Act.

(3.) The learned trial Judge, however, negatived both the contentions of defendant No. 2 and granted the plaintiff the declaration claimed by him. The appeal preferred by defendant No. 2 in the Court of the District Judge at Ratnagiri failed and was dismissed. Defendant No. 2 made a second appeal against the decree of the District Court. It was heard by Mr. Justice Lokur on August 3, 1943. Mr. Justice Lokur accepted the concurrent finding recorded by the Courts below that the transfer was intended to defeat or delay the creditors. On the question of limitation he held that the suit was governed not by Art. 91 as contended by defendant No. 2, but by Art. 120 of the Indian Limitation Act. While dealing with the question as to when limitation could be deemed to have started against the plaintiff in the present case Mr. Justice Lokur referred to the fact found by both the Courts below that the plaintiff had known about the sale-deed in question within a week from its execution. He pointed out that even so the plaintiff had no reason to suppose that he could not recover his dues except by the sale of the property covered by the said sale-deed. He further observed that even assuming that the plaintiff's right to sue accrued when he obtained his decree, the suit would be within time since it had been filed within six years from the date of the appellate decree. In this connection Lokur J. referred to the decision of the Madras High Court in Narasimham v. Narayan Rao , where Venkatasubba Rao J. and Madhavan Nair J. had differed on the question as to when limitation can be deemed to commence under Art. 120, and he expressed his agreement with the view expressed by Venkatasubba Rao J. and held that "the right to sue accrued to the plaintiff only when he decided to exercise the option given to him by Section 53 of the Transfer of Property Act to, challenge the transfer and to seek to recover his dues out of the property transferred." Since on this view the suit was clearly in time, the second appeal preferred by defendant No. 2 was dismissed with costs (46 Bom. L.R. 613). It is against this decision that the present Letter Patent Appeal has been filed by defendant No. 2.