9911796707
TMI Blog1939 (4) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... the Courts below have found that the suit falls under Section 7(iv-A). The plaint recites that the properties in suit are in the possession and enjoyment of the second defendant against whom the plaintiff got a decree on a promissory note, the suit being filed on 2nd August, 1924 and decreed on 12th November, 1924. It is alleged that on 19th June, 1924, the second defendant, collusively and with a view to cheat the plaintiff's claim, executed a sale deed in favour of his brother-in-law, the first defendant, conveying all his properties benami and for no valid consideration, there being no intention that the sale deed should be given effect to. The plaintiff therefore prays for a declaration that the properties conveyed to the first def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between third parties, he is not in a position to get that decree or that deed cancelled in toto. That is a thing which can only be done by parties to the decree or deed or their representatives. His proper remedy therefore, in order to clear the way with a view to establish his title is to get a declaration that the decree or deed is invalid so far as he himself is concerned and he must therefore sue for such a declaration and not for the cancellation of the decree or deed. This distinction was made clear in Unni v. Kunchi Amma I.L.R. (1890) 14 Mad. 26, which is followed in Chathu Kutty Nair v. Chathu Kutty Nair (1923) 19 L.W. 249, and the distinction is clearly observed in the cases quoted by the Court below, except that there is some ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s alienated. He was through his guardian a party to the alienation and necessarily had to get the conveyance cancelled before he could get possession of the properties. The document of alienation, as I then stated, was an insuperable obstacle to the prayer for possession and it had to be declared void or cancelled. Therefore, the relief came under Section 7(iv-A) of the Court-Fees Act. Now on the basis of my, observations in that case, it is contended that here the alienation from the second defendant to the first defendant is an insuperable obstacle to the attachment of the property as the properties of the second defendant in execution of a decree against the second defendant and that therefore the relief which the plaintiff prays for is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... What the creditors therefore seek is not the cancellation of the sale, but a declaration that it is not valid so far as their claims are concerned. In other respects, it may be perfectly good; that is a matter which does not concern the creditors; and the fact that they are creditors and that this transaction was entered into with the motive of defrauding them would not give them the right to have the sale cancelled except to the extent to which they have been defrauded. From this reasoning it seems to me to follow that the proper prayer in such a suit as that now filed is a prayer for a declaration that the sale is not binding upon the creditors to the extent of their debts and not a prayer for the cancellation of the sale-deed. 3. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
