SHEO GOBIND KOERI Vs. RAM ASRAY SINGH

JUDGEMENT

(1.) This second appeal is by defendant 2 in the original suit. The claim of the plaintiff was to recover possession of certain lands on the following allegations: The plaintiff had obtained a money decree on 6 September 1927 which on appeal was confirmed on 2 July, 1928 against defendant 1. Defendant 1 executed on 6 July 1928 a document purporting to be a rehan bond for a consideration of Rs. 1200 in favour of defendant 2 and secured on certain properties which are among those comprised in this litigation. The plaintiff executed his money decree on 18 June 1931 and bought as being the properties of his judgment-debtor the immovable property now in suit on 8 December 1931. When the plaintiff sought to obtain delivery of possession on 13 February 1933 he was opposed, the claim being put forward that defendant 2 was mortgagee in possession of the property.

(2.) The plaintiff alleges that the alleged rehan bond is a mere colourable transaction executed by defendant 1 in favour of his brother-in-law, defendant 2, passing neither title nor possession but designed merely to defeat the claim of the plaintiff. The defence was that the rehan bond was genuine and for consideration and defendant 2 was in possession on his own account under it. Among the properties auction-purchased by the plaintiff is one bearing Survey Plot No. 407 which is not covered by the defendant's document and to which the plaintiff's title is not denied by the defendant. The Munsif accepted the case of the defendant and while giving the plaintiff a decree for his title and possession over plot No. 407 he dismissed the remainder of the claim. On appeal by the plaintiff the lower Appellate Court has held that the alleged transaction between defendant 1 and defendant 2 was a colourable transaction, that defendant 2 neither paid consideration for the rehan bond nor got possession of the rehan property, and that the circumstances, which he set forth in detail, left no room for doubting the fraudulent character of the rehan bond. He denounced the bond as a farzi document brought into existence by defendant 1 in favour of defendant 2 without consideration for defeating the debts of the plaintiff. He allowed the appeal and decreed the suit in full with costs and future mesne profits.

(3.) In second appeal it is contended that such a suit as this is not maintainable; the elaim is in substance one of the nature provided for by Section 53, T.P. Act, but the plaintiff is not entitled to maintain such a suit for he is not in a position to prefer a claim on behalf of the creditors generally, the property being no longer property of defendant 1 but, assuming the plaintiff's claim to be correct, having been purchased by the plaintiff himself. It is contended that failing a suit under Section 53, T.P. Act, there is no other manner in which a transfer can be avoided; therefore the suit should have been dismissed as not maintainable, and reference has been made to Sri Thakurji V/s. Narsingh Narain Narain Singh A.I.R (1921) Pat. 53. The argument appears to rest on some confusion of thought. There is no rule of law that a plaintiff who has been sought to be defeated by a fraudulent and colourable transfer, which is a sham transaction, is limited to the remedy of Section 53, T.P. Act.