JUDGMENT

Campbell, J. - On 22nd November 1920, Mt. Muhammad Zamani Begum obtained a decree for Rs. 5,500 against her husband Muhammad Ibrahim. On 19th August 1919, Muhammad Ibrahim gifted certain house property to his minor sons by another wife Mt. Bunyadi Begam, This property was attached by Mt. Muhammad Zamani Begam in execution of her decree. The donees lodgel objections which were successful. Mt. Muhammad Zamani Begam then lodged the present suit on 5th August 1921, for a declaration that the gift was a nullity and that the gifted property was liabla to be taken in satisfaction of her decree. The trial Court has given her the declaration sought and the donee defendants have appealed.

2. The lower Court struck the issue "Is the gift invalid" and held that it had been male in order to defraud the plaintiff, a creditor. The rule governing the disposal of the suit is that contained in. S. 53 of the Transfer of Property Act, the principles of which section have been repeatedly applied by the Punjab Courts in dealing with similar questions. The burden of proof was on the plaintiff but if she succeeded in proving (a) that at the time of the gift she was a creditor of the donor, (b) that the alienation was gratuitous and (c) that her claim against the donor had been defeated or delayed by it, the Court was entitled to presume that the alienation had been made with intent to defeat or delay her as a creditor.

3. In my opinion if this presumption can be created the plaintiff must succeed, but otherwise she must fail. The case strikes me as having been conducted with great laxity on both aides and the evidence as recorded appears to me to be quite worthless.

4. The gift was a gratuitous alienation without doubt and it has defeated the claim of the plaintiff based on her decree, but the plaintiff has failed to prove that she was a creditor at the time of the gift. It is alleged and was alleged in the; plaint that the decree was an ex-parte decree based upon a promissory note dated 1st October 1918, a date prior to that on which the gift was made, but this has not been proved. The defendant-appellants pleaded, as they were entitled to plead (being minors) that they knew nothing of either suit or promissory note. The plaintiff has failed to bring on to the record either the promissory note or a copy of the decree or a copy of the judgment on which it was based. At the most the plaintiff has established that a decree was passed against Muhammad Ibrahim in her favour after the gift was made. The question whether the execution of a promissory note by Muhammad Ibrahim in favour of Mt. Muhammad Zamani Begam constituted the latter his creditor within the meaning of S. 53 of the Transfer of Property Act would not arise until that execution is proved to have taken place before the alienation attacked in the suit. The learned Subordinate Judge has assumed without any support from the contents of the record that it did so take place, and all that the respondents' learned counsel can do to meet this defect in his case is to ask for an opportunity to lead fresh evidence, a request which I can see no reason for granting.

5. I would accept the appeal and dismiss the suit with costs throughout.

Tek Chand, J.

6. I agree and wish to add a few words with reference to an additional argument put forward on behalf of the respondents, that under S. 53 of the Transfer of Property Act. it is not only the creditors, who have actually a debt due to them at the time of the voluntary transfer who are entitled to impeach it, but that the transaction can be annulled at the instance of subsequent creditors also. This proposition is no doubt true, but it has to be borne in mind, that in such cases the allocation of onus will be regulated op entirely different considerations. In cases where there are debts due at the time of a gratuitous transfer, it will be presumed, as has been pointed out by my learned brother, that the transfer was made with intent to defeat or delay the