Any transfer of immovable property with the intent to defeat or delay the creditors is voidable at the option of the creditor, as per Section 53 of the Transfer of Property Act, 1882.

Rakesh Kumar Jain, J.

1. The plaintiff is in second appeal against the judgment and decree of the Courts below by which his suit for declaration and permanent injunction has been dismissed.

2. The case set up by the plaintiff is that the plaintiff and defendant No.4 constitute a Joint Hindu Family and property in dispute is ancestral. Defendant No.4 executed a registered release deed No.1309 dated 11,09.2002 in favour of the plaintiff on the basis of which mutation No.652 was entered but the same was not sanctioned in view of Rapat No.24 dated 18.09.2002 because the said land was attached in favour of defendant No.1. In the suit, he has thus challenged the validity of attachment and Rapat No.24 dated 18.09.2002. It is also alleged that defendant Nos.1 to 3, who are bent upon to auction the suit land on the basis of Rapat No.24 dated 18.09.2002, be restrained from doing so

3. On notice, defendant Nos.l to 3 filed their joint written statement, whereas defendant No.4 filed his written statement separately. The stand taken by defendant Nos.l to 3 is that defendant No.4 was the Chairman/President of the Tosham Cooperative House Building Society Limited, Tosham. He had embezzled money of the Society as the amount collected from the members was not deposited by him, on which the Society had referred the case to the Sub-Registrar, Cooperative Societies, Bhiwani under the Co- operative Societies Act, 1984 [for short "the Act"] and on 24.09.2001, it was decided by the Sub-Registrar that the Society can recover that amount from.defendant No.4 as land revenue. It is also alleged that defendant No.4 thereafter illegally transferred the land by way of release deed in favour of his grandson in order to wriggle out of the order dated 24.09.2001 and has now got this suit filed through his grandson. In the written statement filed by defendant No.4, execution of the release deed dated 11.09.2002 and delivery of possession was admitted.

4. On the pleadings of the parties, issues were framed by the learned Trial Court. Both the parties led their respective evidence. However, defendant No.4 did not produce any evidence. The learned Trial Court observed that vide order dated 24.09.2001 (Ex.D1) passed by the Sub-Registrar, Cooperative Societies, Bhiwani, defendant No.4 was held liable to pay an amount of Rs. 409124.70/- and Rs. 10,000/- on account of expenses. Vide order dated 20.09.2000 (Ex.D2) passed by the Assistant Registrar, Cooperative Societies, Bhiwani, land of defendant No.4 was attached under Section 111 of the Act. It was further held that defendant No.4 had the knowledge about the aforesaid orders passed by the competent authority under the Act and in order to cheat and defraud the creditors/defendant Nos. 1 to 3, the release deed was executed by him in favour of the plaintiff on 11.09.2002. In view thereof, the suit was dismissed by the learned Trial Court and in the same manner, the First Appellate Court had also dismissed the first appeal after observing as under: -

"12. Further if release deed was registered on 11.09.2002, it does not mean that defendants are not entitled to recover any amount by way of sale of this property. It is admitted by PW.01 in cross-examination that defendant No.04 spent 40 days in custody about embezzlement of amount. As per copy of report Ex.DOl dated 24.09.2001, defendant No.04 is liable to pay Rs. 4,09,124.70 ps. As per this report, it is clear that he collected money from the members of defendant No.04 but did not deposit the same. He siphoned that money for his own use. Details of that amount are clearly given in Ex.DOl. From the perusal of this report, it is clear that several opportunities were afforded to him but to no use. Though entry about attachment of this land was incorporated in roznamcha on 18.09.2002 but as per evidence available on file, it is clear that an order to this effect was passed much earlier. During the pendency of enquiry, Assistant Registrar, Cooperative Society, Bhiwan