A transfer of immovable property made with intent to defeat or delay the creditors of the transferor is voidable at the option of any creditor so defeated, delayed.

R.L.Anand, J.

1. State of Punjab has fled the present Regular Second Appeal against Shri Krishan Lal son of Shri Ram Lal and it has been directed against the judgment and decree dated 3.10.1979, passed by the Court of District Judge, Patiala, who set aside the judgment and decree dated 15.5.19.79, passed by the Sub Judge, 2nd Class, Patiala who dismissed the suit of Shri Krishan Lal for declaration and injunction as prayed for.

2. The pleadings of the parties can be summarised in the following manner. Shri Krishan Lal son of Shri Ram Lal, filed a suit for declaration that he is the owner of the house and shop with chaubara, as described in the heading of the plaint and situated at Amloh and that these are not liable to be attached and sold in case of recovery by the Excise Department from the father of the plaintiff, and for permanent injunction for restraining the defendants from attaching or selling the aforesaid property or interfering in the ownership and possession of the plaintiff.

3. The case set up by the plaintiff was that he is the owner and in possession of the suit property under a registered gift deed dated 4.11.1968 executed in his favour by his father Shri Ram Lal. In this manner, Shri Ram Lal had no right, title or interest in the said property since 4.11.1968. According to the plaintiff, his father Shri Ram Lal allegedly took some excise contracts at Nabha and some amount was said to be due to the Department from him and that his father was a defaulter. The Deputy Excise and Taxation Commissioner, Patiala, ordered for the realisation of the amount due on account of the excise dues from his father and he Was attaching and selling the property for the recovery of the excise dues. This action on the part Of the defendant No.2 was illegal, void and without jurisdiction. The plaintiff on coming to know that the house is going to be attached and sold in execution of the recovery, made a prayer to defendant No.2 not to attach and sell the. property but to no effect. In Short, the plaintiff alleged that defendants have no right to attach and sell the said house and as such, the suit should be decreed.

4. Notice of the suit was given to the defendants who filed the written statement and denied the allegations. According to the defendants, Ram Lal, father of the plaintiff, was a defaulter in the payment of the licence fee of the country liquor .vends which he purchased during the year 1968-69 and he defaulted in the payment of the licence fee totaling Rs. 6,54,998/-. This amount who to be declared as arrears of land revenue under the Punjab Land Revenue Act, 1887. Ram Lal transferred the house in the name of his son Krishan Lal through gift deed in order to avoid the payment of the excise, department and as such, the transfer of the house is to be ignored under Section 53 of the Transfer if Property Act. The defendants also took the stand that the suit of the plaintiff is not maintainable in the civil Court and that the suit is also collusive between him and his father Shri Ram Lal. From the pleadings of the parties, the learned trial Court framed the following issues:-

1. Whether the plaintiff is owner and in possession of the disputed house? OPP

2. If issue No.1 is proved, whether the house is dispute is liable to be attached and sold in lieu of recovery of Excise Licence Fees due from Ram Lal father of the plaintiff? OPP

3. Whether the civil Court has no jurisdiction to try this suit as the recovery is being effected as an arrears of land revenue?

4. Whether the suit is not maintainable? OPD

5. Whether the suit is barred by limitation? OPD

6. Whether a notice under Section 80 C.P.C. was served upon the defendants? OPD

7. Whether the gift dated 4.11.1968 is the result of fraud with the State? OPD

8. Relief.

The parties led oral and documentary evidence in support of their case and on the concluion of the proceedings, the trial Court held under issue No.1 that the plaintiff has not become the owner of the dispu