9911796707
TMI Blog1983 (9) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... y or defeat the creditors including the plaintiff executed two deeds of trust purporting thereby to convey two different sums of Rs. 50,000 each to the defendant, Hariram Dhurka and Shyam Sundar Dhurka, as trustees under the said deeds for the benefit of the grandson and grand-daughter of the said Ram Peary Debi Kanoria who were beneficiaries under the said deed of settlement. There was no consideration whatsoever for such transfer and the said settlement were entered into solely for the purpose of defeating the claim of the creditors. The said Ram Peary Debi Kanoria died. As a result, her death was recorded and the heirs and the legal representatives of the said defendant had been substituted and brought on the record. As such legal heirs and representatives they are under an obligation to discharge the income-tax dues of the original defendant, Ram Peary Debi Kanoria. The said sons had been directed to hand over the said sum to the beneficiaries, Dinesh Kumar Kanoria and Urmila Debi Kanoria, the defendants Nos. 4 and 5, upon attainment of the age of majority. Inasmuch as the defendants were interested in denying the right, title and interest of the plaintiff, the instant suit was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 1,38,742.02. During the pendency of the income-tax proceeding, the trust deeds were executed. The defendants chose not to give any evidence at the trial. The plaintiff disclosed the assessment forms, order of the AAC as also the extracts from the demand register to substantiate its claim. Section 53 of the Transfer of Property Act provides as follows: " 53. (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." The plaintiff gave evidence that such transfers were made fraudulently with an intent to defraud the creditors, more so the income-tax department, which had huge a claim against the said Ram Peary Debi during that period. No evidence Was given in rebuttal by the defendant. Under the circumstances, there has been no dispute as to the facts. As result, in view of the evidence tendered on behalf of the plaintiff and in view of the fact that no evidence in rebuttal had been given by the defendant, the facts remain unchallenged. Mr. P. N. Dey, appearing on behalf of the defendant, submitted that the suit was not maintainable first, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8, C.P.C., the suit is wrongly framed and is liable to be summarily dismissed." The provisions of O. 1, r. 8, are designed to save time and expense and to ensure a convenient trial of questions in which a large body of persons are interested, while avoiding at the same time a multiplicity of suits and consequent harassment to parties. Much of the benefit intended by the rule and the simplicity of procedure secured by it would be lost by construing it to mean that the entire body of persons interested in the litigation are or should be deemed to be actually parties to it. But in the case reported in Tharu Cheru v. Mary, AIR 1973 Ker 125, it was held that even if there is a single creditor, he can file a suit under s. 53 of the Transfer of Property Act to set aside a fraudulent transfer. It was further held that there need not be more than one creditor in existence for the purpose of availing of the provisions of s. 53 of the Transfer of Property Act. Reciting therein is the case reported in Mohideen Thara and. Muhammad Mustappah Rowther, AIR 1930 Mad 665, where it was held that even if there was only one creditor then the act of the debtor in transferring all his property to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty of the court to cause the service of the notice or the publication of the advertisement, on being moved for that purpose. Under the circumstances, in a case where such notice had not been given, the suit could not be, dismissed on account of the failure of the court to perform its own duty." In the case reported in Kumaravelu Chettiar v. Ramaswami Ayyar, AIR 1933 PC 183, where it was held that when permission under O. 1, r. 8 is granted and on such permission being given, it becomes the imperative duty of the court to direct notice to be given to the absent parties. Under the circumstances, it was contended on behalf of the plaintiff that, in the absence of the notice given by the court, the plaintiff's suit should not be defeated in the absence of such notice being published or given. The principle as laid down in s. 53 of the Transfer of Property Act had also been extended to cases of an assignment of a decree on the principle of justice, equity and good conscience. The same principle was also made applicable in cases of transfer of movables by some High Courts. Apart from that, s. 281 of the I.T. Act provides: "281. (1) Where, during the pendency of any proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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