A transfer of property made with intent to defeat creditors is voidable, and a donee of the whole property is liable for the donor's debts at the time of the gift.

ORDER :

1. This civil revision petition has been filed under Section 115 of the Code of Civil Procedure and the revision petitioner is the 2^nd judgment debtor in E.P.No.260/2005 in O.S. No.435/2001 on the files of the Principal Subordinate Judge’s Court, Irinjalakkuda, where from RFA No.134/2005 has been originated. Respondent No.1 herein is the plaintiff/decree holder and respondent No.2 is defendant/1^st judgment debtor.

2. In this civil revision petition, the revision petitioner impugns order dated 29.05.2010 in E.P.No.260/2005, passed by the execution court, on the finding that the objection raised by the revision petitioner/2^nd respondent contending that the property was not liable to be proceeded against the decree debt in respect of the 1^st judgment debtor, who is his mother, as unsustainable.

3. Heard the learned counsel for the revision petitioner and the learned counsel appearing for respondents 1 and 2.

4. To be on the facts, an agreement in writing had been entered into between respondents 1 and 2, who are the plaintiff and the defendant in O.S.No.435/2001, to construct a house in the plaint schedule property at the rate of Rs.488/- per sq.ft. and according to the 1^st respondent, he had constructed a two storied building therein having a plinth area of 3021 sq.ft.

5. On anxious consideration of the evidence in the above suit, the trial court granted decree in favour of the 1^st respondent, allowing Rs. 2,65,000/- along with interest at the rate of 6% per annum to be realised from the 2^nd respondent. The regular first appeal No.134/2005 challenging the said verdict was heard along with this revision petition and by separate judgment the same was dismissed by this court today. In this case, the contention raised by the learned counsel for the revision petitioner is that the revision petitioner is not a party to the suit. Therefore, without impleading him in the original suit as a party, the execution of the decree could not be proceeded, arraying him as the 2^nd judgment debtor and against the property which was transferred by his mother (1^st judgment debtor) before completion of the construction work. In this regard, the learned counsel has placed heavy reliance on the certified copies of gift deeds executed on 12.01.2001 and 11.01.2001 (Exts.B1 and B2) in favour of the revision petitioner by the 2^nd respondent/first judgment debtor. Ext.B3 series are the tax receipts showing remittance of tax in the name of the revision petitioner. Exts.B4 series and Ext.B5 are the basic tax receipts in the name of the revision petitioner starting from 2001 to 2008 in relation to the building. According to the learned counsel for the revision petitioner, the revision petitioner became the absolute owner of the plaint schedule property and the building in view of Exts.B1 and B2 as on 12.01.2001 and 11.01.2001, and without impleading him in the original suit, his property is not liable to be proceeded against to realise the decree debt in O.S.No.435/2005. In this connection, the learned counsel given emphasis to the objection filed in IA No.3285/2001 by the 2^nd respondent. The learned counsel for the revision petitioner placed copy of objection filed in I.A.3285/2001 (attachment petition) in O.S.No.435/2001, contending that in paragraph No.6 of the objection, the 2^nd respondent raised contention that, as of 12.01.2001 onwards, she had no right in the property and she had transferred the same to the revision petitioner. Despite that, he was not impleaded in the suit and therefore, his property could not be attached and proceeded as sought for in the execution petition.

6. Whereas it is submitted by the learned counsel for the 1^st respondent/decree holder/plaintiff that in this matter, after executing an agreement in between respondents 1 and 2 on 20.12.2000, for constructing a building in the plaint schedule property within one year without informing the same to the 1^st respondent, the 2^nd respondent gifted her right in favour of the revision