MAMRAJ AGARWALA AND ON HIS DEATH HIS HEIRS AND LEGAL REPRESENTATIVES CHHAGMAL AGARWALA Vs. AHMAD ALI MAHAMAD

JUDGEMENT

(1.) Defendant obtained a decree against the plaintiff s father and in execution of that decree attached certain property. Plaintiff then objected that the property was his and not his father s and he filed a claim before the executing Court. That claim was dismissed. He thereupon brought the present suit for a declaration that the property attached of the decree-holder- defendant was his own property and not his father s. Defendant objected that the suit was undervalued as the property was worth not Rs. 300 but Rs. 3,000 and, therefore, the Munsif in whose Court it was instituted had no jurisdiction to. try it. He also contended that the document was not genuine but that it was executed for the purpose of defrauding or defeating the father s creditors.

(2.) To take the second point first. The Munsif was of opinion that the document was intended to be a gift and that the consideration money set out in it was only nominal. On appeal the learned Subordinate Judge held that the consideration had actually been paid. Both the Courts then remarked no doubt, with reference to the provisions of Section 53 of the Transfer of Property Act, that there was no evidence that the plaintiff s father had any debts at the time of the kobala. This seems to me rather an extraordinary remark to make, because the kobala was executed in the very year in which the defendant obtained his decree against the plaintiff s father. It is not apparent whether the decree was obtained before the kobala or after; but, at any rate, the suit had been instituted, and the plaintiff s father was well aware of the probability of a decree for a substantial sum being passed against him. That is a fact which both the lower Courts ought to have considered carefully. Their remarks show that they were thinking of Section 53 of the Transfer of Property Act; but neither Court set clearly before its mind the presumption which is created by Clause (2) of that section, and I think that in Considering the evidence and the facts in this case they ought to have paid very great attention to the presumption. They have referred to certain rulings as sufficient to justify the decision to which they have come. But the circumstances of those rulings are entirely different, because in those cases the dispute was not between a third person and one of the contracting parties but between the representatives of one contracting party and the other contracting party. This omission in the judgments of the lower Courts necessitates a remand.

(3.) Then, with regard to the other objection that the suit was tried by a Munsif who had no jurisdiction to try it, the Munsif remarked that the objection was disposed of by the decision in the case of Bibi Phul Kumari v. Ghansyam Misra 7 C.L.J. 36 : 12 C.W.N. 169 : 10 Bom. L.R. 1 : 5 A.L.J. 10 : 17 M.L.J. 618 : 2 M.L.T. 560 : 35 C. 202 : 14 Bur L.R. 41 : 35 I.A. 22 (P.C.) That view appears to me entirely wrong. Their Lordships of the Privy Council did not lay down any proposition such as is suggested by the Munsif. I think that, having found the value of the property to be Rs. 3,000, the Munsif should have gone on to hold that he had no jurisdiction to try the suit. It is objected that Section 11(2) of the Suits Valuation Act prevents us from entertaining the objection at the present stage. It appears to me, however, that the defendant can reasonably say that he has been prejudiced by the case being tried by a Court which had no jurisdiction to try it; and in the present instance, as the case is being remanded, I am the more unwilling to accept respondent s contention.