Judgement

Appeal from a judgment of the High Court (April 3, 1907) reversing a judgment of the Subordinate Judge of Mozufferpore.

The appellants instituted two suits for declarations that each of two conveyances of land made by one Kishun Benode on September 2, 1901, was voidable under s. 53 of the Transfer of Property Act, 1882, as being made with intent to defraud, defeat, or delay creditors. One of the conveyances was in favour of one Kamta Prashad, the other in favour of the respondents. The latter conveyance stated that the consideration for its being made was the sum of Rs. 42,656, of which Rs. 30,309 were set off against a debt due to the transferees, and that the balance was left on deposit with them on account of debts due to certain other creditors.

The circumstances under which the conveyances were made appear from the judgment of their Lordships.

The two suits were tried together, and the Subordinate Judge set aside both conveyances. As to that in favour of Kamta Prashad he found that there was no consideration and that it was made in fraud of

50 Law. Rep. 43 Ind. App. 104 ( 1915- 1916)

Musahar Sahu V. Hakim Lal 151

the creditors. In the case of the conveyance to the respondents he found that there was consideration, but that it was not made bona fide and was within s. 53.

Upon appeal to the High Court in both suits, that Court (Mookerjee and Holmwood JJ.) affirmed the decision as to the conveyance to Kamta Prashad, as to which there was no further appeal. With regard to the conveyance to the respondents they agreed with the finding that there was good consideration, and held that the intention to prefer the transferees to other creditors did not bring it within the section. The appeal is reported at I. L. R. 34 Calc. 999.

Dube, for the appellants. The appellants accept the concurrent findings that there was consideration for the conveyance to the respondents. Having regard, however, to the circumstances in which the conveyance was made, and the relationship between the respondents and Kamta Prashad, it was, like the conveyance to the latter, fraudulent and made to defeat or delay creditors.

The respondents did not appear at the hearing.

1915. Nov. 22. The judgment of their Lordships was delivered by

LORD WRENBURY. On September 2, 1901, Kishun Benode executed two kobalas or conveyances, the one to Kamta Prashad and the other to the respondents, Hakim Lal and another. They were conveyances of certain lands, the parcels in the second deed being much more numerous than those in the first deed. Kamta Prashad was the nephew of Ram Aotar Lal, a brother of Hakim Lal. He was a minor and Ram Aotar Lal was his guardian.

The plaintiff, Musahar Sahu, was at this date a creditor of Kishun Benode. He had on December 14, 1900, sued for the debt, and on January 5, 1901, had presented a petition for security by way of attachment before judgment. On February 11, 1901, Kishun Benode had made an affidavit that he did not intend to transfer any of his properties, and accordingly on February 11, 1901, the petition was dismissed.

In this state of facts the two kobalas were executed by the debtor on September 2, 1901.

On December 5, 1901, the plaintiff obtained judgment in his action for Rs. 12,695.10 and costs. The defendant did not appear at the trial. On December 21, 1901, Kishun Benode applied for a rehearing, but on August 2, 1902, that application was dismissed by default. In the interval, namely, on June 11, 1902, the transferees had obtained an order for registration of their names in respect of the properties transferred.

Under these circumstances two suits were brought to set aside the kobalas on the ground that, within

s. 53 of the Transfer of Property Act IV. of 1882, the transfers were made with intent to defeat or delay the creditors of Kishun Benode.

The Subordinate Judge set aside the first kobala on the ground that no consideration was paid, that a debt of Rs. 6335 therein alleged to be due to Kamta Prashad was fictitious,