KAMINI KUMAR ROY Vs. HIRA LAL PAL CHOWDHURY

JUDGEMENT

(1.) The facts of the case are fully set out in the judgment of the lower Appellate Court and need only be briefly recapitulated. Plaintiffs brought a suit against the defendant No. 2 and obtained an ex parte decree in the Court of the Subordinate Judge of the 24 Pergannas. Subsequently on defendant No. 2 giving security for payment of any money that might be decreed in the suit, the ex parte decree was by consent set aside. Ultimately plaintiffs obtained a decree against the defendant No. 2 for Rs. 12,579 odd. The decree was then transferred to the Dacca Court and was executed as a money decree, and some of the properties hypothecated in the security bond and situated within that district were sold and purchased by the plaintiffs. A balance of about Rs. 7,000 was still left and the decree was then transferred to the District of Faridpur. In execution some other properties included in the security bond were sold and purchased by the plaintiffs on the 23rd of September 1913. On the 23rd of April 1914 plaintiffs obtained symbolical possession of the properties purchased by them. On the 2nd of December 1913 the defendant No. 2 was adjudged an insolvent. Subsequently when plaintiffs demanded rent from the tenants on the basis of their purchase, they were met with the objection that on the 6th September 1912 the defendant No. 2 had sold these properties to the defendant No. 1. The present suit was instituted for a declaration that the purchase by defendant No. 1 was collusive and that the plaintiffs by their purchase had acquired a good title to the properties in suit. The first Court decreed the suit but on appeal the decree was reversed and the plaintiffs suit dismissed; the learned Judge found that the defendant No. 1 had purchased the properties in suit for adequate consideration in good faith, and without any intent to defraud, defeat or delay the creditors of defendant No. 2.

(2.) Plaintiffs appeal and on their behalf two points have been urged before us: (1) That the question whether the purchase was in good faith was a mixed question of law and fact, and upon the facts found by the lower Appellate Court as also upon the facts found by the first Court and not reversed by the Court of Appeal, it ought to have been held that the purchase was not in good faith and that its effect being to defeat or delay the creditors, the transfer was void under Section 53 of the Transfer of Property Act. 2. That the effect of the execution of the security-bond in favour of the Subordinate Judge of 24-Pargannas was to place the properties in custodia legis and that any private transfer of the properties was wholly void.

(3.) The learned Subordinate Judge in dealing with the first point has found that the sum of Rs. 2.400 was actually paid by the defendant No. 1 to defendant No. 2 as consideration for the conveyance and that the consideration was adequate. On the question whether the defendant No. 1 at the time of his purchase knew that the defendant No. 2 was indebted to the plaintiffs, the learned Subordinate Judge without coming to any definite finding proceeded to decide the case on the assumption that defendant No. 1 had such knowledge. He, however, was of opinion that the defendant No, 1 was not aware that the properties in suit had already been given as security. He also expressed the opinion that even if it were held that defendant No. 1 was aware of the existence of the security, that would only go to strengthen the finding as to his bona fides.