The burden of proving fraudulent intent under S.53 of the Transfer of Property Act lies with the party challenging the transfer, and circumstantial evidence can be relied upon to establish fraud.

T.V. Ramakrishnan, J.

Appellant is the decree holder in O.S.32 of 1981 on the file of the Additional Sub Court, Parur. The appeal is against an order allowing a claim application, E. A. 750 of 1986, filed by the first respondent in the appeal. Respondents 2 and 3 are the judgment debtors in the suit and counter petitioners 2 and 3 in E.A. 750 of 1986. The first respondent, claimant in E.A. 750 of 1986 is the wife of the second respondent and mother of the third respondent.

2. The suit, O.S.32 of 1981, was one filed by the appellant for recovery of amounts due to him with interest from respondents 2 and 3 based upon a transaction of loan dated 16.1.1978. The suit was decreed as prayed for on 20.10.1982. Appellant has filed E.P. 203 of 1985 on 23.9.1985 to execute the decree. In the Execution Petition, the property in question was attached on 1.10.1985 and the attachment was actually effected on 26.11.1985. The claim application disposed of by the impugned order was filed on 11.11.1986 claiming that the judgment debtors' have no right in the property and that the first respondent is the sole owner of the property on the basis of Ext. Al assignment deed dated 25.5.1973.

3. In the claim application, first respondent has alleged that the property under attachment was assigned in her favour as per Ext. Al assignment deed for valid consideration and that she is in possession and enjoyment of the same. The house in the property belongs to her and she came to know about the attachment am' proclamation for sale only when notice of sale was effected by affixture on the property. First respondent has specifically asserted that respondents 2 and 3 have no right or interest in the property subsisting on the date of attachment. Appellant resisted the claim application contending that the application is lacking in bonafides and is highly belated. It was further contended that Ext. Al sale deed is sham and nominal and is one executed without consideration. The property is even now in the possession of the judgment debtors. The alleged transfer, in any event, is in fraud of the creditors and as such voidable. The averment in the claim petition that first respondent came to know about the attachment only when notice of sale was affirmed on the property was also denied stating that the first respondent had occasion to know about the attachment even earlier. It was submitted that the above assertion is a mere assertion made with a view to file the application at a very belated stage of the execution proceedings to prolong and protract the proceedings. In the light of the contentions raised in the counter affidavit, appellant has prayed for dismissing the application finding that it is one filed belatedly without any bonafides and merit.

4. Except producing Exts. Al to A3 and B1 to B4. parties have not adduced any oral evidence in support of their respective contentions. The Execution Court, on a consideration of the evidence available on record, has come to the conclusion that the first respondent-claimant has succeeded in establishing her title to the property and that the judgment debtors had no title or interest in the property attached at the time of attachment. On the basis of the above findings, the attachment effected was raised as per the impugned order.

5. In the appeal, Sri. P.B. Krishnan, learned counsel for the appellant has contended that the finding of the Execution Court that the claimant is the owner of the property attached is illegal and unsustainable in law. While arriving at such a finding relying upon Exts. A1 to A3, the learned judge has totally omitted to consider the legal effect of Exts. B1 and B2 documents and the fact that Exts. A2 and A3 are tax receipts obtained respectively on 12.9.1985, just a few days prior to the filing of the Execution Petition and on 12.11.1995, just after the filing of the Execution Petition. It was submitted that the leaned judge has totally misunderstood or omitted to understand the sc