Fraudulent transactions under the Transfer of Property Act necessitate proof of good faith and consideration; lack thereof creates an inference of fraud against the debtor's intent to evade creditors.

JUDGMENT :

(SATHI KUMAR SUKUMARA KURUP, J.)

This Second Appeal is filed to set aside the Judgment and Decree dated 20.07.2017 made in A.S. No. 76 of 2014 on the file of the learned Sub Judge, Namakkal and to restore the Judgment and Decree dated 30.10.2014 passed by the learned Additional District Munsif, Namakkal in O.S. No. 280 of 2011.

2. The Plaintiff in O.S. No. 280 of 2011 on the file of the learned Additional District Munsif, Namakkal, is the Appellant in this Second Appeal.

3. The suit in O.S. No. 280 of 2011 was filed by the Plaintiff seeking the relief of declaration to declare that the sale deed executed by the first Defendant in favour of his wife/second Defendant on 22.12.2009 is a fraudulent sale deed and to direct the second Defendant not to alienate or encumber the property described in the plaint.

4. As per the plaint averments, the plaint schedule properties have devolved on the first Defendant through a Will dated 16.10.2000 executed by his father Karuppa Gounder. It was further stated that on 24.11.2004, the father of the first Defendant died and therefore, the Plaintiff has become the owner of the property and the Will dated 16.10.2000 has been acted upon. The Plaintiff further stated that on 14.08.2009, the first Defendant and one Muthiah have borrowed a sum of Rs.3,00,000/- (Rupees Three Lakhs) as loan from him for their business needs. However, after receipt of the amount, they have avoided and evaded to repay the loan. Therefore, the Plaintiff filed a suit for recovery of money in O.S. No. 109 of 2010 on the file of the learned Sub Judge, Namakkkal. According to the Plaintiff, to defeat the attachment proceedings that is likely to be initiated by the Plaintiff, the first Defendant executed the sale deed dated 22.12.2009 whereby alienated the property in favour of his wife, the second Defendant. Therefore, the Plaintiff had filed the suit praying to declare that the sale deed dated 22.12.2009 executed by the first Defendant in favour of his wife/second Defendant is sham and nominal and will not bind the Plaintiff and his other creditors and to direct the second Defendant not to alienate or encumber the plaint schedule property in any manner.

5. On notice in the suit in O.S. No. 280 of 2011, the first and second Defendants, who are the husband and wife, filed separate written statement denying the plaint averments in detail.

6. On the pleadings of the parties to the dispute in the plaint and in the written statement, the learned Additional District Munsif had framed three issues which are as follows:

(i) Whether the Plaintiff is entitled for the relief of Declaration as prayed for?

(ii) Whether the Plaintiff is entitled for the relief of permanent injunction as prayed for?

(iii) To what other relief the Plaintiff is entitled to?

7. During trial, the Plaintiff examined himself as P.W-1 and also examined two other witness viz., Balamurugan and Mohanraj as P.W-2 and P.W-3 and marked documents under Ex.A-1 to Ex.A-3. The first Defendant had deposed evidence as D.W-1 and marked two documents under Ex.B-1 and Ex.B-2. The second Defendant avoided to enter the witness box.

8. After closing of evidence, after hearing the learned Counsel for the Plaintiff and the learned Counsel for the Defendants, the learned Additional District Munsif, Namakkal, by judgment dated 30.10.2014, had granted a decree of declaration in favour of the Plaintiff and also granted injunction in favour of the Plaintiff restraining the second Defendant from alienating the properties to third parties.

9. Aggrieved by the same, the second Defendant filed Appeal before the learned Sub Judge, Namakkal in A.S.No.76 of 2014. After hearing the Appellant and the Plaintiff as Respondent, the learned Sub Judge, Namakkal, by judgment dated 20.07.2017 reversed the Judgment and Decree passed by the learned Additional District Munsif, Namakkal, allowed the appeal and thereby dismissed the suit.

10. As against the judgment of the Appellate Court in A.S. No. 76 of 2014,