1958 Supreme(AP) 87

Andhra Pradesh High Court
Judges : M.SESHACHALAPATI, P.CHANDRA REDDY
Ahmed Ali Khan Bahadur (died) - Appellant
Versus
Banguluru Veeralla - Respondent
Decided On : 06-20-58

A suit to set aside a transfer on the ground that it was made to defeat the creditors should be instituted on behalf of and for the benefit of the entire body of the creditors.

Headnote:

LETTERS PATENT APPEAL - PARTITION SUIT - LIS PENDENS - ADVERSE POSSESSION - LIMITATION - FRAUDULENT TRANSFER - TRANSFER OF PROPERTY ACT, SECTION 52, 53 - CIVIL PROCEDURE CODE, ORDER 21 RULE 63 - INDIAN LIMITATION ACT, ARTICLE 120.

Fact of the Case:

The Nawab of Bandar died in 1898 leaving behind several wives and children. One of his sons filed a partition suit in 1906 which was decreed in 1911. During the pendency of the suit, one of the Nawab's wives, Shoukat Begum, filed a suit for a declaration that the partition decree was obtained by fraud and that she was entitled to a share in the properties. The suit was decreed in 1924 and a decree for mesne profits was passed in 1926. Meanwhile, in 1920, one of the defendants in the partition suit sold a portion of the lands allotted to him to six persons. The purchasers and their successors-in-interest filed suits under Order 21 Rule 63 of the Civil Procedure Code challenging the attachment of the properties in execution of the mesne profits decree. The suits were decreed in favor of the plaintiffs and the defendants, the present appellants, filed appeals to the High Court.

Finding of the Court:

The High Court dismissed the appeals holding that the decision in the partition suit did not operate as res judicata, that the sale deed executed during the pendency of the partition suit was not affected by the doctrine of lis pendens, that the finding of the trial court that the vendees and their successors-in-interest had perfected their title by adverse possession was not erroneous, and that the sale deed was not executed with the intention of delaying or defrauding the creditors.

Issues: 1. Whether the decision in the partition suit operated as res judicata? 2. Whether the sale deed executed during the pendency of the partition suit was affected by the doctrine of lis pendens? 3. Whether the finding of the trial court that the vendees and their successors-in-interest had perfected their title by adverse possession was erroneous? 4. Whether the sale deed was executed with the intention of delaying or defrauding the creditors?

Ratio Decidendi: 1. The decision in the partition suit did not operate as res judicata as the present appellants were not parties to the suit and the suit was not filed in a representative capacity. 2. The sale deed executed during the pendency of the partition suit was not affected by the doctrine of lis pendens as the decree for mesne profits did not create a charge on the properties sold. 3. The finding of the trial court that the vendees and their successors-in-interest had perfected their title by adverse possession was not erroneous as the appellants had knowledge of the sale deed and the litigation initiated by the decree-holder in 1922 or 1924 and did not take any steps to challenge the sale till 1939. 4. The sale deed was not executed with the intention of delaying or defrauding the creditors as the consideration for the sale was genuine and the alienees had paid the debts to the creditors in the manner stipulated in the sale deed.

Final Decision: The appeals were dismissed.