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2025 DIGILAW 1222 (KER)

Jose S/o Francis v. V. P. Devassy S/o Pailoth

2025-05-19

A.BADHARUDEEN

body2025
ORDER : 1. This civil revision petition has been filed under Section 115 of the Code of Civil Procedure and the revision petitioner is the 2 nd judgment debtor in E.P.No.260/2005 in O.S. No.435/2001 on the files of the Principal Subordinate Judge’s Court, Irinjalakkuda, where from RFA No.134/2005 has been originated. Respondent No.1 herein is the plaintiff/decree holder and respondent No.2 is defendant/1 st judgment debtor. 2. In this civil revision petition, the revision petitioner impugns order dated 29.05.2010 in E.P.No.260/2005, passed by the execution court, on the finding that the objection raised by the revision petitioner/2 nd respondent contending that the property was not liable to be proceeded against the decree debt in respect of the 1 st judgment debtor, who is his mother, as unsustainable. 3. Heard the learned counsel for the revision petitioner and the learned counsel appearing for respondents 1 and 2. 4. To be on the facts, an agreement in writing had been entered into between respondents 1 and 2, who are the plaintiff and the defendant in O.S.No.435/2001, to construct a house in the plaint schedule property at the rate of Rs.488/- per sq.ft. and according to the 1 st respondent, he had constructed a two storied building therein having a plinth area of 3021 sq.ft. 5. On anxious consideration of the evidence in the above suit, the trial court granted decree in favour of the 1 st respondent, allowing Rs. 2,65,000/- along with interest at the rate of 6% per annum to be realised from the 2 nd respondent. The regular first appeal No.134/2005 challenging the said verdict was heard along with this revision petition and by separate judgment the same was dismissed by this court today. In this case, the contention raised by the learned counsel for the revision petitioner is that the revision petitioner is not a party to the suit. Therefore, without impleading him in the original suit as a party, the execution of the decree could not be proceeded, arraying him as the 2 nd judgment debtor and against the property which was transferred by his mother (1 st judgment debtor) before completion of the construction work. In this regard, the learned counsel has placed heavy reliance on the certified copies of gift deeds executed on 12.01.2001 and 11.01.2001 (Exts.B1 and B2) in favour of the revision petitioner by the 2 nd respondent/first judgment debtor. In this regard, the learned counsel has placed heavy reliance on the certified copies of gift deeds executed on 12.01.2001 and 11.01.2001 (Exts.B1 and B2) in favour of the revision petitioner by the 2 nd respondent/first judgment debtor. Ext.B3 series are the tax receipts showing remittance of tax in the name of the revision petitioner. Exts.B4 series and Ext.B5 are the basic tax receipts in the name of the revision petitioner starting from 2001 to 2008 in relation to the building. According to the learned counsel for the revision petitioner, the revision petitioner became the absolute owner of the plaint schedule property and the building in view of Exts.B1 and B2 as on 12.01.2001 and 11.01.2001, and without impleading him in the original suit, his property is not liable to be proceeded against to realise the decree debt in O.S.No.435/2005. In this connection, the learned counsel given emphasis to the objection filed in IA No.3285/2001 by the 2 nd respondent. The learned counsel for the revision petitioner placed copy of objection filed in I.A.3285/2001 (attachment petition) in O.S.No.435/2001, contending that in paragraph No.6 of the objection, the 2 nd respondent raised contention that, as of 12.01.2001 onwards, she had no right in the property and she had transferred the same to the revision petitioner. Despite that, he was not impleaded in the suit and therefore, his property could not be attached and proceeded as sought for in the execution petition. 6. Whereas it is submitted by the learned counsel for the 1 st respondent/decree holder/plaintiff that in this matter, after executing an agreement in between respondents 1 and 2 on 20.12.2000, for constructing a building in the plaint schedule property within one year without informing the same to the 1 st respondent, the 2 nd respondent gifted her right in favour of the revision petitioner within 23 days i.e., on 11.01.2001 and 12.01.2001 before completing the work and without paying the balance amount of construction due to the 1 st respondent/decree holder/plaintiff for the construction made in the property. Thereafter the 1 st respondent completed the construction during the month of April 2001. Thereafter the 1 st respondent completed the construction during the month of April 2001. According to the learned counsel for the 1 st respondent, the execution court addressed the issue with reference to Section 53 of the Transfer of Property Act, 1882 (hereinafter referred to as ‘TP Act’ for short) and also with reference to Sections 127 and 128 of the TP Act while holding that the transfer was fraudulent with a view to defeat the creditor who is the 1 st respondent herein. 7. The learned counsel for the 2 nd respondent/1 st judgment debtor also argued in terms of the argument tendered by the revision petitioner. 8. The questions arise for consideration are; 1. Whether the trial court went wrong in holding that the property is liable to be proceeded for decree debt in O.S.No.435/2001? 2. What is the order to be passed? 9. Points Nos.1 and 2: In this matter, admittedly and evidently, an agreement was executed between respondents 1 and 2 on 22.12.2000 to construct a two-storied house having a plinth area of 3021 sq.ft at the rate of Rs.488 per sq.ft. within a period of one year. According to the 1 st respondent, the work was completed by April, 2001 and it is discernible that the housewarming was on 20.05.2001 as admitted by the 2 nd respondent during her examination as DW1 on the trial side. The trump card upon which the revision petitioner wants to rescue the plaint schedule property from proceeding with the execution of the decree is his title deeds in the form of gift deeds marked as Exts.B1 and B2 dated 12.01.2001 and 11.01.2001. The execution of Exts.B1 and B2 is not disputed. Thereafter, the revision petitioner paid tax to the property as well as to the building. 10. In this matter, I am inclined to address the contention raised by the learned counsel for the 1 st respondent/decree holder/plaintiff regarding the application of Section 53 of the TP Act. Before that, it is necessary to address whether the 1 st respondent/decree holder/plaintiff committed fraud in not impleading the revision petitioner as an additional defendant in the suit itself. In this matter, I am inclined to address the contention raised by the learned counsel for the 1 st respondent/decree holder/plaintiff regarding the application of Section 53 of the TP Act. Before that, it is necessary to address whether the 1 st respondent/decree holder/plaintiff committed fraud in not impleading the revision petitioner as an additional defendant in the suit itself. It is relevant to note that even though in the objection filed in the attachment petition, the 2 nd respondent raised contention that the property was sold to her son on 12.01.2001, in the written statement no such contention was raised nor the question of non-joinder was also raised. Accordingly, the 1 st respondent never had an occasion to address the issue of non-joinder and thereby the suit was proceeded without the junction of the revision petitioner. When a specific plea of non-joinder was not raised, alerting the attention of the plaintiff and the court, regarding the plea of non-joinder, so as to raise an issue in this regard, a mere mentioning of facts, that too without mentioning the way in which the transfer was made by detailing the nature of transfer (here the documents executed as gift deeds not disclosed in the objection filed to the attachment petition) by itself, would not make the suit as one which would fail for the reason of non-joinder and the said aspect was so rightly found by the execution court. Therefore, this contention could not yield in favour of the revision petitioner. 11. Coming back, Section 53 of the TP Act provides as under: “53. Fraudulent transfer .—(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. 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 a 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. 12. 12. On reading Section 53 (2) of the TP Act, it is emphatically clear that every transfer of immoveable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee. It has been provided under Sub-Section (2) of Section 53 further that for the purposes of this sub-section, no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made. 13. Section 53 (1) of the TP Act is clear on the point that 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. Apart from that, in the instant case, the execution court relied on Sections 127 and 128 of the TP Act and found that, where a gift consists of the donor’s whole property, the donee is personally liable for all the debts due by and liabilities of the donor at the time of the gift to the extent of the property comprised therein. In fact, Section 127 of the TP Act deals with onerous gifts and it has been provided under: 127. Onerous gifts. —Where a gift is in the form of a single transfer to the same person of several things of which one is, and the others are not burdened by an obligation, the donee can take nothing by the gift unless he accepts it fully. Where a gift is in the form of two or more separate and independent transfers to the same person of several things, the donee is at liberty to accept one of them and refuse the others, although the former may be beneficial and the latter onerous. Onerous gift to disqualified person. —A donee not competent to contract and accepting property burdened by any obligation is not bound by his acceptance. But if, after becoming competent to contract and being aware of the obligation, he retains the property given, he becomes so bound.” 14. As per Section 128 of the TP Act, it has been provided as under: “128. —A donee not competent to contract and accepting property burdened by any obligation is not bound by his acceptance. But if, after becoming competent to contract and being aware of the obligation, he retains the property given, he becomes so bound.” 14. As per Section 128 of the TP Act, it has been provided as under: “128. Universal donee.- Subject to the provisions of Section 127, where a gift consists of the donor’s whole property, the donee is personally liable for all the debts due by and liabilities of the donor at the time of the gift to the extent of the property comprised therein.” Thus the donee gifts a property by way of gift and where a gift consists of donor’s whole property, the donee is personally liable for all the debts due by and the liabilities of the donor at the time of gift to the extent of property comprised therein. Here no contention raised by the 2 nd respondent that she had any other property apart from the property covered by Exts.B1 and B2, where the 1 st respondent constructed the house and completed the same after execution of Exts.B1 and B2. If so, without much ado, the revision petitioner being the donee of the property where the donor’s debts and liabilities are attached is liable to clear the same. 15. It is true that normally a party to the suit could be arrayed as a judgment debtor in an execution petition. But when third party interest is found during execution proceedings as discernible from the facts of this case, or of similar nature, while proceeding with the execution of the decree, impleadment of a third party in the execution proceedings not legally barred, since hearing him also is envisaged by such impleadment. The sum and substance of the discussion would lead to the conclusion that the 1 st respondent put the decree in execution for realisation of the amount due for the work he had done in the property covered by Exts.B1 and B2. After execution of an agreement on 22.12.2000 for constructing a house within a period of one year, the 1 st respondent executed two gift deeds on the next month (within 23-24 days) while the construction was going on. It is nothing but a fraudulent attempt to defeat the claim of the decree holder as envisaged in Section 53 of the TP Act. It is nothing but a fraudulent attempt to defeat the claim of the decree holder as envisaged in Section 53 of the TP Act. That apart, independently the property is liable to be proceeded for realization of the decree debt in terms of Section 128 of the TP Act to realize the debt of the donor from the gifted property as per Exts.B1 and B2. Therefore, it could not be held that the execution court went wrong in holding that the property is liable to be proceeded for decree debt due to the 1 st respondent. In view of the matter, this revision petition fails and is liable to be dismissed. Accordingly, this revision petition stands dismissed. 16. All interlocutory orders stand vacated and all interlocutory applications pending in this revision petition stand dismissed. 17. Having considered the fact that the decree sought to be executed arose out of a suit of the year 2005 (20 years before) the execution court is directed to expedite the execution and at any rate within a period of six months from the date of receipt of a copy of this order. 18. Registry is directed to forward a copy of this order to the jurisdictional court forthwith.