Harekrishna Patra v. Banamali Roul — 1970 DIGILAW 142 (ORI)

JUDGMENT :- The plaintiff is in appeal against a confirming judgment of the learned First Addl. Subordinate Judge, Cuttack. 2. He sued under Order 21, Rule 63, C.P.C. for a declaration that the property sought to be proceeded against was liable to be executed against Defenddants 2 to 4 are brothers and members of a Hindu undivided family. Defendant No. 2 for the family borrowed Rs. 500/-on 1-2-53 from the plaintiff upon a promissory note. As there was default of payment, Money Suit No. 43 of 1956 was filed by the plaintiff and he obtained a decree on 20-9-1957 for Rs. 821-12 and levied Execution Case No. 268 of 1958 for recovery of the said amount. The properties of the family were sought to be put to sale. The plaintiff who knew defendant No. 1 as one of his debtors relied upon him for supply of particulars of the properties. On the basis of the information given the plaintiff brought certain properties to sale and the decree-holder purchased the properties proceeded against. The execution case was dismissed on 23-9-59 on satisfaction. Thereupon one Bauribandhu Roul applied under Order 21, Rule 90, C.P.C. claiming the property. The said application was ultimately allowed and the auction sale was set aside. The plaintiff levied fresh execution case No. 14 of 1960. In the meantime defendant No. 1 who also happens to be a cousin of defendants 2 to 4 entered into collusion with the judgment-debtors and obtained a sale deed in respect of the disputed properties 3.96 acres in extent on 22-8-59. This sale deed was for Rs. 2000/-. Defendant No. 1 applied under Order 21, Rule 58, C.P.C. for release of the properties covered by the sale deed. His application was registered as Misc. Case No. 128 of 1960 and was ultimately allowed by order dated 30-1-1961 and the properties were allowed to be released from execution. Therefore, the present suit has been instituted. 3. Defendant No. 1 alone contested. According to him, the loan which was the basis of the money decree was denied and the benami character of Ext. B was also refuted. He contended that the entire consideration was paid before the Sub-Registrar and he acquired valid title. He claimed to be in possession. 4. The trial court found that Ext. 3. Defendant No. 1 alone contested. According to him, the loan which was the basis of the money decree was denied and the benami character of Ext. B was also refuted. He contended that the entire consideration was paid before the Sub-Registrar and he acquired valid title. He claimed to be in possession. 4. The trial court found that Ext. B the sale deed in favour of defendant No. 1 was genuine, valid and for consideration; and defendant No. 1 had been put into possession. Accordingly it dismissed the suit. The learned Appellate Judge has affirmed the decree. That is how the plaintiff is in Second Appeal against the judgment of affirmance. 5. Two questions rightly arise in the present suit - as to whether the sale deed dated 22-8-59 (Ext. B) is benami or sham, and as to whether the plaintiff is entitled to the benefit of Section 53 of the Transfer of Property Act. 6. Their Lordships of the Supreme Court in AIR 1957 SC 49 (Sree Minakshee Mills Ltd. v. I.-T. Commr.) had occasion to examine the difference between "benami" and 'sham' transactions and they ultimately laid down that whether the document be sham or benami is a pure question of fact. Mr. Sinha rightly did not press that question further. 7. He, however, contended that the plaintiff was entitled to the benefit of Section 53 of the Transfer of Property Act, and the courts below have not properly taken that aspect into consideration. Section 53 of the Transfer of Property Act provides, "(1) Every transfer of immoveable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed. Nothing in this sub-section shall impair the rights of a transferee in good faith and for consideration. x x x x A suit instituted by a creditor (....) to avoid transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor, shall be instituted on behalf of, or for the benefit of, all the creditors. x x x x" Mr. Sinha contends that the plaintiff was entitled to the benefit of this section and as such even though on the concurrent finding of the courts below consideration for Ext. x x x x" Mr. Sinha contends that the plaintiff was entitled to the benefit of this section and as such even though on the concurrent finding of the courts below consideration for Ext. B has passed, if it is a transaction coming under the mischief of Section 53 of the T. P. Act, it is liable to be dealt with under the provisions of that section. This is a suit which has not been brought for the benefit of the entire body of creditors or on their behalf. A single creditor is the only plaintiff. There is no assertion that he is the sole creditor. What the frame of the suit should be is clearly indicated in the section itself. Added to the statutory provision, Mr. B. G. Das seeks to place reliance on a decision of the Calcutta High Court in AIR 1936 Cal 783 (Ekkari Ghose v. Sidheshwar Ghose). Ghose, J. held, "The case under S. 53, T. P. Act, was not made out in the plaint even under S. 53, as it stood before the amendment of 1929 it was held that a suit must be properly constituted under S. 53. If it was properly constituted there might be a defence to such a proceeding. See the case in (1904) 32 Ind App 1 (PC). The amended S. 53, which came into force in 1929 applies to the present suit which was instituted in January, 1931. It is laid down that a suit instituted by a creditor to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditor of transferor, shall be instituted for the benefit of all the creditors, that is to say, a suit must be instituted according to the provisions of O. 1, R. 8. The present suit was not instituted according to the law as laid down in S. 53. The plaintiff, therefore, is not entitled to claim the benefit of S. 53. The present suit was not instituted according to the law as laid down in S. 53. The plaintiff, therefore, is not entitled to claim the benefit of S. 53. It would be evidently unjust to give him a decree under S. 53, since he did not make such a case in the plaint and did not give the defendant adequate opportunity to meet his plea." In the present case, apart from some allegations in paragraph 6 of the plaint which essentially concentrate on the benami character of the transaction, the foundation for the allegations requisite for Section 53 of the T. P. Act has not been laid. That apart, it is not a suit in the representative character as required under the section. Section 53 statutorily gives a mandate to the plaintiff who wants to avail the benefit of that Section to institute the suit in a particular manner. Unless there is compliance with that statutory requirement, the special benefit conferred under that section cannot be extended to the plaintiff. 8. There is no clear allegation that the purchaser was a party to the alleged fraud. At any rate, the courts below have not found it. The first exception in Section 53 is bound to cover defendant No. 1-purchaser. On the aforesaid basis, I would hold that the plea under Section 53 of the T. P. Act is not available to the plaintiff. 9. The allegation of benami has not been rightly pressed as indicated above. On my finding that the benefit of Section 53 is not available the plaintiff's suit has been rightly dismissed in the courts below. The appeal is dismissed. There would be no order as to costs of this Court.