1. This appeal arises out of a suit instituted under Order XXI Rule 63 C. P. C. The plaintiff is the judgment-creditor, the 1st defendant the judgment-debtor, the 2nd defendant the letter's wife and the 3rd defendant a person claiming to be in possession of the property under a usufructuary mortgage executed in his favour by the 2nd defendant. The trial court dismissed the suit. The lower appellate court, however, decreed it.
2. The relevant facts are as follows: P. W. 3 was the original owner of the property which is a house. According to him, he sold it to the 1st defendant for Rs. 925/-. Although there was no registered conveyance in favour of the 1st defendant, the suit house has ever since stood registered in the Municipal registers in his name and he has shown it in certain documents as his own. On 15-9-1950, i.e., three months after he had executed a promissory note in favour of the plaintiff -- and it is upon this promissory note that the plaintiff obtained the decree now in execution -- the 1st defendant executed a deed in favour of the 2nd defendant purporting to convey the house to her in lieu of dower.
It is not the case of the defendants that the dower was immediately payable. This deed is an unregistered one. Sometime after the deed in her favour the 2nd defendant in her turn executed a registered deed of mortgage in favour of the 3rd defendant. The plaintiff impeaches the transaction in favour of the 2nd defendant as sham and unreal and the mortgage by her to the third defendant as unsupported by arty consideration.
3. His case is that the 1st defendant has, in spite of the deeds, continued to be in possession and that, as his creditor, he (the plaintiff) can bring to sale the 1st defendant's right, title and interest in the suit house. It is true that the 1st defendant cannot be said to have absolute title to the house because the alleged sale by P. W. 3 in favour of the 1st defendant is not supported by a registered deed and the sale having taken place well within 12 years from the date of the suit, it cannot be said that the 1st defendant has obtained a statutory title under Section 28 of the Limitation Act.
But it seems to me that there is nothing in the decision of a Bench of this court in S. A. No. 49 of 1957 to which reference has been made, which militates against the right claimed by the plaintiff to attach the possessory title of the 1st defendant. In that case, the learned Judges were dealing with a plaintiff who was the claimant under Order 21, Rule 58 C. P. C. She claimed the property under a sale in her favour. The learned Judges held that she was bound to prove her title as well as possession, presumably within 12 years before the suit.
Where the plaintiff happens to be an attaching decree-holder, there can be no question of his proving any title and possession. All that the plaintiff need establish in a suit under Order XXI, Rule 63, C P. C. is the right which he claims to the property in dispute. When the attaching-decree-holder is the plaintiff, he must establish his right to attach the property for the purpose of selling the right, title and interest of the judgment-debtor in order to satisfy his decree.
To the case of such a plaintiff, the language of the learned Judges that the plaintiff in a suit under Order XXI Rule 63 should establish his title to the property as well as possession cannot obviously apply. Further, there may well be cases where the judgment-debtor is in possession, and enjoyment of property without any title. That is to say, he may have only what is called a possessory title. There is no reason that I can see why possessory title, heritable and transferable as it is, should not be the subject of attachment If a trespasser displaces the judgment-debtor having possessory title, he cannot obviously succeed in a suit under Order XXI Rule 63 C. P. C. as against the attaching decree-holder because the judgment-debtor's possessory title must prevail against the trespasser. If the judgment-debtor could sue successfully and displace the claimant's possession, the decree-holder can, in the right of his judgment debtor, equally do so. The word 'title' docs not necessarily mean title good against the whole world but only a title superior to that set up by the other side.
In the present case, therefore, there can be little doubt that the plaintiff is entitled to attach the possessory right of the 1st defendant subject, of course, to this: namely, that he had not already parted with that right in favour of the 2nd defendant pursuant to a transaction which is bona fide and for value. But the lower appellate court found that the transaction in favour of the wife is in fact not true. No question, therefore, of the validity of the transaction arises.
Further, both the courts below agree in finding that the mortgage under which the 3rd defendant claims is not supported by consideration. It is not disputed that the husband owed no debt to the 2nd defendant at the time when the deed was executed in her favour. If he purported then to transfer to her property in lieu of a debt not presently payable, the transaction naturally excites suspicion as one entered into without any need and being one between man and wife it calls for the most careful scrutiny.
The lower appellate court was thus entitled upon the facts and the circumstances of the case to draw the inference that it did. Its conclusion is reinforced by the fact that the 2nd defendant has in her turn created a mortgage unsupported by consideration in favour of the 3rd defendant. No question then arises under Section 53 of the Transfer of Property Act because where there is no transfer, there is no need to set it aside.
4. In the result, I accept the findings of the lower appellate court and dismiss the appeal with costs. No leave.