9911796707
TMI Blog1936 (8) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... become her house, is not a fraudulent alienation, that it was made bona fide and for consideration. The learned trial Judge has found as a fact that the transaction is bona fide and for consideration. To make the trend of the argument clear it is desirable to give some dates. On 14th June 1926 a third party attached the suit property and that attachment continued all through the material dates that will be under discussion hereafter until towards the end of 1927. On 19th May 1927 the judgment-debtor (husband of the plaintiff) purchased the stamp paper on which on the same day the so called gift deed (Ex. P-3) was written and executed. On 11th July 1927 the present defendant attached the house. On 13th July 1927 the document was registered. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, and it was,, according to the evidence, put right by the husband eventually transferring to her a better house in lieu both of the fifteen-hundred rupee house which was not his and the obligation to give a thousand rupees on demand to his wife. The house-in question is the subject-matter of the so-called gift deed, which I should prefer to call a transfer deed dated 19th May 1927. 3. The following attacks have been made on that transaction. Firstly, it is said that the value of the house being ₹ 6,000 and the husband being in difficulties the transfer is a palpable screen and not bona fide. (After examining the evidence, their Lordships upheld the conclusion of the trial Court that it was worth nothing more than ₹ 2,500, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On the contrary the plaintiff has satisfied the burden of proof that is upon her to show that the transaction was for consideration, was a real transaction and was implementing the obligation which her husband was under to her and we desire to draw attention to the observations of their Lordships of the Judicial Committee in Musahar v. Lala Hakim Lal A.I.R.1915 P.C.115: As matter of law their Lordships take it to be clear that in a case in which no consideration of the law of bankruptcy applies there is nothing to prevent a debtor paying one creditor in full and leaving others unpaid although the result may be that the rest of his assets will be insufficient to provide for the payment of the rest of his debts.... The transfer which def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 1927, the attaching creditor has priority. That matter was, as, we have indicated,, a matter of considerable doubt and difficulty until 1926 when the case in Kalyanasundaram Pillai v. Karuppa Mooppanar MANU/PR/0011/1926 came before their Lordships. They decided (they were considering a gift and Section 123, T.P. Act), that a gift is complete when the deed of gift was complete and a transfer is not postponed until the date of registration. This matter was further considered by their Lordships and that decision was followed in Venkatasubba Shrinivas v. Subba Rama A.I.R.1928 P.C.86. From that date we take it as established by authority that is binding upon us that in a case of transfer by gift (Section 123, T.P. Act), or by sale (Section 54, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le ingenuity. It has been noted above that there was a third party attachment on 14th June 1926 and that attachment continued until after July 1927. It is said that by Section 64, Civil P.C., it is provided: Where an attachment has been made, any private transfer or delivery of property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment. 6. Now, it is said that this is a claim enforceable under the attachment and not only enforceable under the attachment by attaching creditor (a third party) but enforceable by another attaching creditor, the defendant in this action. In our opi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... least missing in the chain: (1) the attaching creditor under the attachment made in 1926 never got the assets into the executing Court, and (2) the present attaching creditor under the attachment in 1927 never applied for rateable distribution. That earlier attachment was subsequently raised and passes out of the story. In our opinion, this ground of attack fails. Then it is said that the plaintiff is out of time owing to the operation of Article 11(1), Limitation Act, which, in the case of a suit by a person against whom an order is passed on his objection in execution proceedings, fixes one year. The dates are as follows: the objection order was passed on 5th March 1928. The plaint was presented in one Court, on 15th September 1928, of c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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