A partition deed intended to defeat creditors constitutes a fraudulent transfer under Section 53, rendering any title obtained through it invalid.

J U D G M E N T

This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Alappuzha in O.S.232/94. The suit was one for a declaration and injunction. It is the case of the plaintiff that she had purchased the plaint schedule property by virtue of a sale deed No.3960/93 of S.R.O. Mararikulam from Sumathi Amma and she is in actual possession and enjoyment of the property. This Sumathy Amma got the property by virtue of a partition deed No.4999/87. Item No.1 of the E schedule is the plaint schedule property. It is the case of the plaintiff that there was a prior agreement and by virtue of the same she was put in possession on 25.5.89. Defendants 1 and 2 are the decree holders in O.S.158/56. They had obtained a sale certificate with respect to this property alleging that it belonged to the 3rd defendant in the suit who is none other than the plaintiff's mother. Since the 3rd defendant did not have any right over the property, the sale effected by the Court is also not proper and therefore she has filed the suit for declaration of her title and for a consequential injunction.

2. On the other hand, defendants 1 and 2 who are decree holders in O.S.158/56 would contend that ever since from the date of decree continuous attempts were made one way or other by the present plaintiff and her father, mother and brothers of the father to delay the execution of the decree and in the process they have created fraudulent document and such one document is the partition deed wherein the property is allotted to Sumathy Amma. It is also contended that the plaintiff right from the inception also had been aware of all these transactions and therefore she is not a bonafide purchaser for valuable consideration and that the whole transaction is vitiated by fraud which is directly hit under S.53 of the Transfer of Property Act .

3. In the trial Court PW1 and DW1 were examined. Exts.A1 to A3 and B1 to B7 were marked. On an analysis the Court found in favour of a fraudulent transfer and dismissed the suit. It is against that decision the plaintiff has come up in appeal.

4. Heard the learned counsel for the appellant as well as the contesting respondents.

5. The point that arises for determination is regarding the title of the plaintiff over the plaint schedule property by virtue of the sale deed and also the question whether it is as a result of a fraudulent transfer. At the out set it is contended by the learned counsel for the appellant that there is no appropriate issue framed regarding the fraudulent transfer. I am in agreement with the same but a reading of the written statement would convincingly establish that the real contention of the defendants 1 and 2 is that of a fraudulent creation of a document and it has also to be held that the parties have proceeded with the trial on the basis and understanding of the same and therefore a mere non framing of an issue cannot militate against the contesting defendants.

6. Now on the facts. The defendants 1 and

2 who are decree holders in O.S.158/56 had obtained a decree and has been running from pillar to post for the purpose of executing the decree to realise the amount due to them. The defendants in the suit are the father of the plaintiff, the mother of the plaintiff and two brothers of the plaintiff's father. The person from whom the plaintiff had purchased the property is none other then the direct sister of plaintiff's mother namely 3rd defendant in the suit. The learned counsel for the appellant would contend before me that since the property belonged to Sumathy Amma and as she had exclusive title and possession over the property a subsequent sale by her in favour of the plaintiff would show that the defendants cannot get execution of the decree or sale of the property which does not belong to Padmavathy Amma, 3rd defendant in the suit. If these facts are clear and if it is not vitiated under the circumstances mentioned u/s 53 of the Transfer of Property Act , certainly the