Research › Search › Judgment

Punjab High Court · body

2003 DIGILAW 679 (PNJ)

Rattan Singh v. Ram Singh

2003-05-09

ASHUTOSH MOHUNTA

body2003
JUDGMENT Ashutosh Mohunta, J. - Rattan Singh plaintiff has filed this appeal against the judgment and decree dated October 23, 1981 passed by the Additional District Judge, Kurukshetra, vide which the judgment and decree dated April 21, 1980 passed by the Sub Judge Ist Class, Kurukshetra, were set aside, and the suit filed by the plaintiff was dismissed. 2. Briefly, the facts of the case are the Ram Singh defendant No. 1 borrowed a sum of Rs. 1500/- from the plaintiff-appellant and executed a pronote dated April 22, 1974. When Ram Singh failed to repay the said amount along with interest within the stipulated period, the plaintiff-appellant filed a suit for recovery of Rs. 1,800/- in the Court of Sub Judge Ist Class, Thanesar, against defendant No. 1. The said suit was decreed in favour of the plaintiff-appellant. The said defendant was owner of one-half share of the land measuring 16 Kanals 3 Marlas, and he in the meanwhile transferred the same in favour of his brother Atma Singh defendant No. 2, through a collusive decree. In this way, defendant No. 1 defrauded the plaintiff-appellant by alienating the land. The plaintiff-appellant filed a suit for grant of a declaration against the defendant-respondents to the effect that the fraudulent transfer of agricultural land made by defendant-respondent No. 1 in favour of defendant-respondent No. 2, by way of collusive suit is not binding on him and the same is liable to attachment and sale in execution of decree passed in his favour. The trial Court decreed the suit filed by the plaintiff-appellant and the collusive decree between the defendants was set aside by declaring it null and void. On appeal filed by Atma Singh, defendant No. 2, learned Additional District Judge, Kurukshetra reversed the finding given by the trial Court and held that the suit was not properly filed as required under Order 1 Rule 8, Civil Procedure Code It is against the judgment and decree passed by the Additional District Judge, Kurukshetra, that the plaintiff has filed the present regular second appeal. 3. Despite service, no one has put in appearance on behalf of the respondents. 4. I have heard the learned counsel for the appellant and have gone through the evidence brought on record. 5. Admittedly, both the defendants are real brothers. It is also not disputed that defendant-respondent No. 1 borrowed a sum of Rs. 3. Despite service, no one has put in appearance on behalf of the respondents. 4. I have heard the learned counsel for the appellant and have gone through the evidence brought on record. 5. Admittedly, both the defendants are real brothers. It is also not disputed that defendant-respondent No. 1 borrowed a sum of Rs. 1500/- from the plaintiff-appellant on April 22, 1974. The plaintiff filed a suit against defendant No. 1 for the recovery of the amount on February 13, 1976. The suit was decree on August 6, 1977. On the other hand, defendant No. 2 Atma Singh filed a suit against his brother defendant No. 1 Ram Singh on February 7, 1976. Written statement in the said suit was filed by defendant No. 1 on February 10, 1976 and he suffered a decree in favour of defendant No. 2 on February 11, 1976. It shows that the decree in the suit filed by defendant No. 2 was passed just within four days time. From this it can easily be inferred that the decree obtained in the said suit was a collusive decree in order to defraud the plaintiff-appellant of his amount, which he had lent to defendant No. 1. Section 53 of the Transfer of Property Act is to the following effect :- "53. Fraudulent transfer. - (1) Every transfer of immovable 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. Nothing in this sub-section shall affect any law for the time being in force relating to insolvency. A suit instituted by a creditor (which term includes a decree-holder whether he has or has not applied for execution of his decree) 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. (2) Every transfer of immovable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee. (2) Every transfer of immovable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee. For the purposes of this sub-section, no transfer made without consideration shall be deemed to have been made with intent to defraud by any reason only that a subsequent transfer for consideration was made." 6. According to sub-section (1) every transfer of immovable property, which is made with an intention to defeat or delay the creditors of the transferor shall be voidable. In the present case, there is no room for doubt that both the defendants obtained a collusive decree in the suit filed by defendant No. 2 in order to defeat the right of the plaintiff-appellant to recover the amount which he had given as a loan to defendant-respondent No. 1. Both the defendants are brothers. Defendant No. 2 Atma Singh, in whose favour the decree was passed, cannot be said to be a transferee in good faith. It was very much in his knowledge that his brother Ram Singh had borrowed a sum of Rs. 1500/- from the plaintiff-appellant and the plaintiff-appellant had filed a suit for recovery of the said amount from him. The decree in the suit filed by defendant No. 2 was passed in just four days time. Thus, I am of the considered opinion that the transfer of the land in dispute was a fraudulent transfer, which was made with an intent to defeat the right of the plaintiff- appellant to recover the amount from defendant-respondent No. 1. Consequently, I allow this appeal and set aside the judgment and decree dated October 23, 1981 passed by the Additional District Judge, Kurukshetra, and restore the judgment and decree dated April 21, 1980 passed by the Sub Judge Ist Class, Kurukshetra. Appeal allowed.