1. Brij Mohan Das and the appellant, Amar Nath, obtained mortgage decrees for the sale of the same property against Ram Das and Mt. Jiwan Kunwar, the son and daughter of Ganesh Das, in the year 1932. It appears that Brij Mohan Das was the prior mortgagee. He put the property to sale and recovered a sum of Rs. 16,100 out of the decretal amount of Rs. 24,451. He applied for a money decree for the balance on 1st August 1934. It is conceded that Amar Nath' also obtained a money decree, although the date of it is not known. In execution of this decree he attached a box of ornaments deposited by Ganesh Das in the Allahabad Bank in the year 1920. After the death of Ganesh Das, Mt. Jiwan Kunwar attempted to recover the ornaments from the Allahabad Bank upon the ground that they were really her property and had been deposited by Ganesh Das on her behalf. The bank refused to deliver the property until Mt. Jiwan Kunwar could establish her claim to it in a Court of law and the result was that the ornaments were still in deposit with the bank at all relevant times. It is now conceded by the parties that the property did belong to Mt. Jiwan Kunwar. The suit which has given rise to this appeal arose out of the fact that Dwarka Das Jai Kishen Das, the plaintiff-respondent, objected to the attachment by Amar Nath upon the ground that the ornaments had been sold to him by Mt. Jiwan Kunwar before the attachment had been made. His objection was disallowed by the Court executing the decree and he instituted the suit in order to obtain a declaration that the property was his and was not liable to be attached in execution of the decree against Mt. Jiwan Kunwar. The learned Judge gave him a declaration to that effect and Amar Nath has appealed.
2. The plaintiff-respondent produced the deed of sale transferring the ornaments to him executed by Mt. Jiwan Kunwar on 29th September 1934. The consideration, a sum of Ks. 8000, was paid by means of a cheque drawn by Dwarka Das Jai Kishen Das on the Imperial Bank in favour of Mt. Jiwan Kunwar. The officials of the bank have proved that the cheque was cashed by Mt. Jiwan Kunwar and the money was paid to her personally. There was a suggestion by the appellant, Amar Nath, that the lady went to the bank with the agent or attorney of Dwarka Das Jai Kishen Das and that he might have recovered the money and returned it to the plaintiff, but there is no evidence in support of this allegation and nothing to rebut the statements of the officials of the bank. It is true that the bank has lost and has been unable to produce the original cheque, but there is no reason for supposing that this fact indicates any conspiracy between the plaintiff and the officials of the bank or can give rise to any justifiable suspicion that the evidence produced by the plaintiff upon this point is unreliable. The learned Judge has held that the consideration was paid and we have no reason for disagreeing with his conclusion upon this question of fact.
3. A suggestion was made in argument before us that the accounts of the plaintiff-respondent showed that two sums of Rs. 6000 and Rs. 2000, were deposited by him in cash in his personal account with the firm in which he is a partner and that we should assume that these sums came from Mt. Jiwan Kunwar and consequently that the money paid by way of consideration was returned by her. The appellant has produced no evidence in support of his allegation. He did not put any question upon this point to Dwarka Das Jai Kishen Das when the latter was cross-examined and there is nothing to suggest that these sums were paid by Mt. Jiwan Kunwar. The learned Judge has dealt with this point in his judgment. He has pointed out that the question was not raised till the case was being argued before him. It is clear that Dwarka Das Jai Kishen Das had no notice of this objection and no reason for producing any evidence to show from what source he obtained this money. When the case was being argued in the lower Court, counsel on his behalf said that his client occasionally received sums of money in cash which he deposited in the ordinary way. It would be most unfair for us to make any assumptions against Dwarka Das Jai Kishen Das on the basis of allegations which he had no opportunity at any time of meeting. We agree with the learned Judge of the Court below that it is impossible to hold that the consideration, if paid, was returned in the manner alleged by the appellant.
4. Learned Counsel has addressed an argument to us on the analogy of the provisions of Section 53, T.P. Act, and has urged, in the first place, that we should draw an inference from the circumstances that the sale of the ornaments was intended to defeat the claim of the creditor, the appellant Amar Nath, on the basis of his decree and, in the second place, that we should at least hold that the burden of proving that the transaction was entered into in good faith was upon the plaintiff-respondent and that he had failed to discharge the burden. Learned Counsel has based his argument about the burden of proof upon the decision in Nannhi Jan v. Bhuri ('08) 30 ALL. 3211 and the decisions in other High Courts in India which are mentioned in the judgment in that case. We find, however, that the decision in the Allahabad case has been overruled in this Court by the case in Abdus Sattar v. Hira Devi : AIR1933All198 which is based upon a decision of their Lordships of the Privy Council in V.E.A.E.M. Firm v. Maung Ba Kyin It was certainly at one time very generally held that the plaintiff in a suit under Order 21, Rule 63, Civil P.C. or under the corresponding provisions of the earlier Code was bound to prove not only that the property he claimed had been conveyed to him but that the conveyance had been made in good faith. In V.E.A.E.M. Firm v. Maung Ba Kyin however, their Lordships of the Privy Council referring to the plaintiffs in a suit under Order 21, Rule 63, made the following observations, namely:
Now, they being the ostensible owners of the property under a duly registered deed and a deed of transfer, obviously the party claiming to attach that property for somebody else's debt, not their debt, but the debt of the original debtor must show that the same was a fraudulent one, and that could only be done in this case (there is no other evidence) by showing utter inadequacy of consideration.
5. In that case the original debtor had transferred the property in suit to the son of a man to whom he owed us. 17,000, and to his own daughter. The consideration of Rs. 20,000, consisted partly of the discharge of the debt of Rs. 17,000, and partly of a sum of Rs. 3,000, alleged to have been paid in cash. Their Lordships found that so far as the sum of Rs. 17,000, was concerned it was good consideration and so far as the remaining sum was concerned although the payment was not strictly proved, still the property being worth only Rs. 20,000, the failure to prove strictly the payment of Rs. 3,000, was not enough to justify the conclusion that the case was fraudulent. That case is similar to the case before us. Learned Counsel has, however, drawn our attention to three other cases decided by their Lordships of the Privy Council, namely, Chidambaram Chettiar v. Srinivasa, Sastriar ('14) 1 A.I.R. 1914 P.C. 137, Mohammad Ali Mohammad Khan v. Mt. Bismillah Begam 0049/1930 and Ghansham Das v. Uma Pershad ('19) 6 A.I.R. 1919 P.C. 6. In the first of these cases their Lordships merely affirmed the decision of the High Court without discussing any question of law and the decision of the High Court is based on a finding of fact that the greater part of the consideration had not been paid. In the other two cases their Lordships found positively on the facts that the transfers alleged were fraudulent or fictitious and intended to delay or defeat the creditors of the transferor. It is true that their Lordships said in one case that it was their opinion that the plaintiff was not entitled to a declaration that the property was hers unless she established to their satisfaction that the deed in question was bona fide and was intended to pass the beneficial interest in the property in suit to the transferee and in the other that the District Judge rightly threw on the plaintiff the onus of establishing that the transaction was entered into in good faith, but in neither case was the question of burden of any importance. In the latest case which we have seen, namely, Mohammad Ismail v. Hanuman Parshad their Lordships said:
A good deal of argument was addressed to the question of burden of proof. Apparently it has been the settled practice of the Indian Courts, when objections to attachment in execution have been disallowed, and a suit has been filed by the objector under Order 21, Rule 63 of the Code, to put the onus of proving the bona fides of any transaction upon which the objector relies upon him in his capacity of plaintiff. This is a matter which may possibly require further consideration when the question of onus is really material. In the present case where the facts are fully established, and the inference from them is clear, their Lordships think that nothing would be gained by an examination of the authorities to which reference has been made before them.
6. It would appear, therefore, that there is no reason for supposing that the ruling of this Court in 55 ALL. 2662 is not the law. The plaintiff in a suit under Order 21, Rule 63, doubtless has the initial burden upon him to show that the property is not liable to attachment, for the reason that it has in fact been attached by the order of a Court, just as he would have an initial burden upon him to show that he had a right to property which he was seeking to recover from the possession of another, but we can see no reason why the burden should be greater in the former case than in the latter. If the matter were res integra, it would appear to us that a summary order under Order 21, Rule 58 should have no more effect in a regular suit specifically allowed by Order 21, Rule 63 than an order under Section 145, Criminal P.C., would have in a suit for possession based on title, but it is unnecessary for us to rely upon our own opinion because we think that that is the principle to be inferred from the case in A.I.R. 1927 P.C. 2373 and laid down in 55 ALL. 266. The plaintiff discharges his initial burden by showing that there has been in his favour a transfer which makes him the ostensible owner of the property in suit. If there is nothing else, there is no reason why a Court should make a presumption in favour of fraud. On the other hand, if circumstances are made to appear from which a reasonable inference of fraud can be drawn, there would doubtless be a burden upon the plaintiff to rebut the inference and that we think is what their Lordships of the Privy Council meant by their remarks in the eases in A.I.R. 1930 P.C. 2555 and 17 A.L.J. 410. A person can doubtless endeavour to defeat or delay his creditors by two methods, that is by making a fictional transfer which is not intended to have effect or by making a real transfer which involves an exchange of property readily available to the creditors for money or other property which they may find it difficult or impossible to seize.
7. It was the first method which was alleged in the suit which has given rise to this appeal and the allegation is sufficiently rebutted by finding that the consideration passed. It is impossible to believe that the plaintiff-respondent would have paid Rs. 8000 to Mt. Jiwan Kunwar without any intention of taking the ornaments. The second method was not pleaded and, if it had been, the plea could not have succeeded unless it could have been shown that Dwarka Das Jai Kishen Das had entered into a conspiracy with Mt. Jiwan Kunwar to defeat or delay her creditors. The Court could not have deprived an innocent transferee for value of the property transferred on the ground that his transferor had been dishonest. Learned Counsel for the appellant argued that the circumstances justified a finding that the transfer was fraudulent. He referred to the facts that Dwarka Das Jai Kishen Das was the husband of Mt. Jiwan Kunwar's sister, that Mt. Jiwan Kunwar had received notice on 15th August of the application of Brij Mohan Das for a money decree against her and. had sold the ornaments on 29th September, that she had no other property to satisfy her debts, that she had no apparent need for a sum of Rs. 8000 in cash, that she transferred the property in Bombay and not in Benares where her creditors might have heard of the transaction, that Dwarka Das bought property the title to which was in dispute and that he did not inquire why the property was being transferred. Some of these facts may suggest that Mt. Jiwan Kunwar was attempting to save her ornaments from her creditors, but there is no sufficient reason for holding that Dwarka Das Jai Kishen Das was aware of this. She lived in Benares and he in Bombay and the relationship was not so close that he must have known about decrees which had been passed or might be passed against her. There was no real dispute about the ownership of the ornaments. The bank was protecting itself because the deposit had been made by Ganesh Das, but Dwarka Das Jai Kishen Das referred the matter to Mt. Jiwan Kunwar's brothers and one replied that the property was hers. The others at that time made no claim and on one occasion when the box was opened there was a slip inside it written by Ganesh Das stating that the deposit had been made on her behalf. There seems to have been no reason for Dwarka Das Jai Kishen Das to inquire why the ornaments were being sold. One obvious reason was that they had been lying in the bank since the death of Ganesh Das in 1922 and Mt. Jiwan Kunwar had not been able to recover them up to the time when she sold them in 1934. Her allegation was that she wanted money to make a pilgrimage and to repair a house in Benares. This has not been disproved and, although it may or may not be true, it does not appear that there was anything to put Dwarka Das Jai Kishen Das to an inquiry into the financial position of the lady. Even if the appellant were entitled to argue a case which he did not raise in his plaint, we should not be justified in differing from the findings of the learned Judge of the lower Court. We therefore dismiss the appeal with costs.