SUBROYA GOUNDAN Vs. PERUMAL CHETTIAR

JUDGEMENT

(1.) The case, apparently, was not argued fully before the Courts below. The points arising for decision have now been discussed in all their aspects; and our conclusion is that the decision of the Court below is right.

(2.) The first point for consideration is whether the decree obtained by the plaintiff was for a debt which was in existence when the release deed was executed by the 1st defendant to the 4th defendant in 1901. To enable us to decide this question, we gave time to the Vakils appearing on either side to produce the judgment obtained against the 1st defendant by the plaintiff; we now admit it under Order XLI, Rule 27, of the Code of Civil Procedure as Exhibit B. The document is necessary to enable us to pronounce judgment and as the learned Vakils took time to produce the document before us, we think we have power under Order XLI, Rule 27, read with Order XLI, to admit the new document in evidence, and we accordingly do so From this document it is clear that the plaintiff was a creditor before the 1st defendant released his rights to the 4th defendant. Consequently Section 53 of the Transfer of Property Act is applicable to his claim, if that section is other wise applicable.

(3.) It was next contended that plaintiff being only one of the creditors, the suit is not maintainable to impeach the release-deed. There is no evidence of the existence of other creditors and consequently the decision in Mina Kumari Bibi v. Bijoy Singh Dudhuria 40 Ind. Cas. 242 : 32 M.L.T. 425 : 1 P.L.W. 425 :21 C.W.N 585 : 5 L.W. 711 : 21 M.L.T. 344 : 15 A.I.J. 382 : 25 C.L.J. 508 : 19 Bom. L.R. 424 : (1917) M.W.N. 473 : 44 C. 662 : 44 I.A 72 (P.C.) does not govern this case.