PAKKIRI MOHIDEEN THARAGAN Vs. MUHAMMAD MUSTAPPAH ROWTHER

JUDGEMENT

(1.) These second appeals preferred by the plaintiffs arise out of two suits instituted by the same plaintiffs against defendants Nos. 1 and 2 who are the same in both the suits, and against defendant No 3 who is the purchaser from one or other of the other defendants of the properties mentioned in the plaint. The prayer in the suits was for a declaration that the plaint properties belong to defendants Nos. 1 and 2 and that the sale-deed executed in favour of defendant No. 3 are not binding on the creditors of defendants Nos. 1 and 2. The purchaser is different in the two suite; he is defendant No. 8 in each case, The purchasers will be referred as defendant No. 3 in the judgment for the sake of convenience. Defendant No. 3 in O.S. No. 230 of 1921 purchased from defendant No. 1 and defendant No. 3 in O.S. No. 237 of 1921 from defendant No. 2.

(2.) The plaintiffs alleged that they obtained a money decree in O.S. No. 517 of 1916 and attached the plaint properties before judgment in the said suit; when final orders had to be passed in respect of the said attachment defendants Nos. 1 and 2 undertook not to alienate the properties pending disposal of the suit. After obtaining decree the plaintiffs had the properties sold in execution and themselves purchased the same on 14 June, 1918. Defendants Nos. 1 and 2 applied to have the sale set aside. That application was dismissed on 5 September, 1918. Discovering that there was a misdescription in relation to one of the properties in the attachment warrant (inasmuch as Survey No. 468-B was by mistake mentioned in the attachment proceedings, instead of the correct Survey No. 565-B which is the chief property included in the sale-deed in favour of defendant No. 3 in each of the suits), the defendants with a view to defeat the plaintiff's claims hit upon the idea of selling the properties (along with some other comparatively minor items) to defendant No. 3 in December, 1918. The appeal preferred by the defendants was dismissed on 17 March, 1919. The plaintiffs alleged that the sales in favour of defendant No. 3 in such suit were brought about with the intention of defeating the plaintiff's decree debt. They alleged that the sale- deeds were not supported by consideration and were also not real transactions, and that in any event the game contravened the provisions of Section 53, Transfer of Property Act. The plea of defendant No. 3 in each of these suits was that the sale in his favour was a bona fide transaction supported by consideration, that defendant No. 3 was a bona fide purchaser for value without notice and that the plaintiffs were not entitled to any relief. Both the lower Courts dismissed the plaintiffs suits and hence these second appeals have been preferred by the plaintiffs in the two suits.

(3.) The learned Advocate for the appellants contended that the lower Appellate Court's findings are unsatisfactory based on a mistake of law and in any event insufficient to warrant the dismissal of the suits. The lower Appellate Court found in para. 15 of its judgment as follows: The plaintiffs have not discharged the onus of showing that the transfers evidenced by Exs. 1 and 2 were made with intent to defraud or delay the creditors. That being so the question whether the vendees are transferees in good faith and for valuable consideration requires no proof and no point can be made, therefore, of the fact that the vendees let in no evidence whatever on the said question.