1. This is a defendant's first appeal against a decree passed by the learned Subordinate Judge of Pilibhit. The plaintiff's suit was for a declaration that she was the owner in possession of certain property detailed in Schedule A of the plaint and that the property detailed in Schedule B of the plaint was property belonging to her which she had made waqf and that both the properties were not liable to be attached and sold in execution of a certain decree held by defendant 1 against defendant 2. Plaintiff 1, Mt. Aftab Begam, was the second wife of defendant 2. According to her the amount of dower due to her upon her marriage to defendant 2 had been fixed at Rs. 30,000 and such dower was declared to be prompt It was her case that nothing had been paid in discharge of this liability until 8th March 1919 when her husband, defendant 2, in part satisfaction of this prompt dower debt due to his wife, transferred the property detailed in Schedule A to her. The property transferred was stated to be worth Rs. 3,000 and as a result of this transaction the dower debt was reduced to that extent. As regards the property set out in Schedule B it was the plaintiff's case that she had purchased this property on 25th May 1920 in an auction sale in execution proceedings which had been brought by a decree-holder Chhotey Lal against defendant 2. This property set out in Schedule B had been made wakf by the plaintiff and consequently it was claimed in this suit that neither the properties in Schedule A nor Schedule B belonged to defendant 2 and therefore they were not liable to attachment and sale under any decree held by defendant 1, against defendant 2.
2. A number of defences were raised and it will be necessary shortly to deal with some of them. In the first place it was said that the real owner of both these properties was defendant 2 and that in the year 1919 no dower debt was due to the plaintiff. It was the defendants' case that the dower arranged to be paid to the plaintiff was a sum of Rs. 2000 and that such was not due until the death of defendant 2 or upon the latter divorcing his wife. In the second place it was alleged that the transfer by defendant 2 to the plaintiff of property mentioned in Schedule A was a purely fictitious transaction which was entered into with a view to defrauding his numerous creditors. Lastly it was contended that the suit was overvalued and that the proper valuation was Rs. 1,300 and consequently the plaint should have been presented in the Court of the Munsif.
3. The learned Subordinate Judge did not decide the question of the valuation of the suit and considered the case upon its merits He found as a fact that the dower due to the plaintiff was Rs. 30,000 and that such dower was prompt. He further found that at the date of this transfer to the plaintiff, viz., 8th March 1919, the whole sum was due by way of dower and that the transfer in dispute was executed by defendant 2 in favour of the plaintiff in part satisfaction of his legal liability to her. The learned Subordinate Judge was of opinion that at this time defendant 2 was heavily indebted to other creditors and that this transfer may have affected the interests of such creditors, but nevertheless he held, that the transaction was a genuine and bona fide one and therefore was valid and effectual in spite of the fact that defendant 2 had numerous other creditors. With regard to the property specified in Schedule B the learned Subordinate Judge held that this property belonged to the plaintiff and had been purchased by her from Chhotey Lal on 7th January 1931. He also held that the property had become wakf and did not in any way form part of the estate of defendant 2 which could be attached in execution of any decree obtained against him.
4. It has been urged by counsel for the appellant that the evidence with regard to the existence of a prompt dower debt of Rs. 30,000 is not satisfactory and should not have been accepted by the learned Subordinate Judge. It is pointed out that defendant 2 executed a document which was subsequently registered whereby he undertook to pay to the plaintiff a sum of Rs. 75 per mensem by way of kharach pandan or pocket expenses. In this document no mention is made of any dower debt and it is said that it is somewhat strange that if a large sum of Rs. 30,000 had been agreed to be paid that no mention of it was made in this or any other document. It is not unusual to find that the liability to pay dower or the amount of such dower is not made the subject-matter of any written document, and the absence of any reference to such dower in a document relating to pocket expenses does not really affect the matter. The plaintiff herself gave evidence to the effect that her dower was agreed at Rs. 30,000 and that such was to be prompt and this evidence was corroborated by respectable witnesses who were at the nikah ceremony and who were in a position to know the arrangements made between the parties. Evidence was called on behalf of the defendants with a view to showing that the dower was fixed at the very much smaller sum of Rupees 2,000 and that such was deferred, but the learned Subordinate Judge had no hesitation in rejecting this evidence. It is quite clear from the agreement with regard to kharach pandan that the parties were in very comfortable financial circumstances and that being so a deferred dower of Rs. 2,000 is small. Further, on 30th April 1927, the plaintiff executed a deed of relinquishment whereby she relinquished the remaining Rs. 27,000 of her dower of Rs. 30,000 to defendant 2. If the dower had not been fixed at Rs. 30,000 the execution of this document is inexplicable. In our judgment the evidence as to the dower debt is all one way and we entirely agree with the learned Subordinate Judge's finding that it was Rs. 30,000 and that it was prompt.
5. It is no one's case that in the year 1919 any dower had been paid and the learned Subordinate Judge accepted the plaintiff's version that at the date of transfer to her of the property detailed in Schedule A, viz, 8bh March 1919, there was a sum of Rs. 30,000 due and that the transfer of the property in question was made in part satisfaction of that liability. The value of the property is alleged by the plaintiff to have been Rs. 3,000 and the learned Subordinate Judge has accepted this as a fair estimate of the value of the property. An attempt was made by the defendant to show that the property included a residential house and that therefore the subject-matter of transfer was worth much more than Rs. ,3,000 but the learned Subordinate Judge was satisfied that this residential house was not included in the transfer and that Rs. 3,000 was a very fair estimate of the value of the property transferred. Again there is little that can be said against this finding as the evidence amply supports it. We therefore agree with the learned Subordinate Judge that the property transferred on 8th March 1919 was of the value of Rs. 3,000 and no more.
6. It was also in evidence that this transfer of the property set out in Schedule A to the plaintiff on 8th March 1919 was immediately acted upon and that the plaintiff took possession of the same and had remained in such possession. These facts cannot seriously be challenged by the defendant and therefore it is clear that this transfer was a perfectly bona fide and genuine one. We are satisfied that at the date of transfer Rs. 30,000 was due and owing to the plaintiff. We are further satisfied that the valuation of the property was a fair and reasonable one and that after the transfer the plaintiff took possession and remained in possession. If the transfer was a bogus and a fictitious one such would never have been the case. The whole of the facts as found by the learned Subordinate Judge, and as we find them, point inevitably to the conclusion that this was a bona fide transaction entered Into by defendant 2 with a view to discharging to some extent his liability to his wife.
7. It was contended however in the lower Court that this transaction could not be sustained by reason of the fact that it had very materially affected the interests of the other creditors. In a sense defendant 2 did prefer his wife to his other creditors as he transferred property to her in satisfaction of her debt and consequently such property no longer remained available for the other creditors. Merely preferring one creditor to another does not bring the transaction within Section 53, T.P. Act. Sub-section 1, Section 53, T.P. Act, provides:
Every transfer of immoveable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed.
8. The effect of this provision has been considered in numerous cases and it is only necessary shortly for us to refer to three of them. In Musahar Sahu v. Lala Hakim Lal 1915 43 Cal 521, their Lordships of the Privy Council held that a transfer which defeats or delays creditors is not an instrument which prefers one creditor to another, but an instrument which takes property from the creditors for the benefit of the debtor. The debtor must not retain a benefit for himself. He may pay one creditor and leave another unpaid. Consequently when it was found that the transfer impeached was made for adequate consideration in satisfaction of genuine debts and without reservation of any benefit to the debtor, it followed that no ground for impeaching it lay in the fact that the plaintiff-appellant who was also a creditor, was a loser by payment being made to the preferred creditor, there being in the case no question of bankruptcy. This of course was a case upon Section 53 before the recent amendments but in our view the pronouncement of the Board applies with equal force to the amended section. A similar view was expressed by their Lordships of the Privy Council in a subsequent case, Mina Knmarx Bibi v. Bijoy Singh Dudhuria 1916 44 Cal 662. These two cases were followed and applied by the Patna High Court in Mahadeo Lal Jwala Prasad v. Mst. Bibi Maniran 1933 12 Pat 297. In that case it was held that a transfer of property by a Muhammadan husband in favour of his wife in lieu of a real dower debt equal to or exceeding the value of property transferred cannot be impeached under Section 53, T.P. Act, 1882, on the ground that it defeated or delayed other creditors so long as it was a genuine transfer. The facts of the present case cannot be distinguished from the facts of the Patna case Mahadeo Lal Jwala Prasad v. Mst. Bibi Maniran 1933 12 Pat 297 which we have cited and following that case and the decisions of the Privy Council to which we have referred we are of opinion that though the transaction in the present case did adversely affect the body of creditors by reason of the fact that one creditor was preferred, such does not affect the validity of the transfer as there is no question of insolvency in this case.
9. Once it is held that the transfer of the 8th March 1919 is a bona fide and genuine transfer for valuable consideration the plaintiff's claim in this case cannot be resisted. In our view the plaintiff established beyond all doubt that she was the owner in possession of the property specified in schedule A and that such could not be attached and sold in execution of a decree held by defendant 1 against defendant 2. It cannot be argued that the findings of the learned Subordinate Judge with regard to the properties specified in Schedule B are not well-founded. It is clear that the plaintiff was the owner of these properties and that she had made a wakf. They were not the properties of defendant 2 at the time of attachment and sale and consequently the plaintiff was entitled to the declaration asked for. Lastly it has been contended before us that this suit should never have been brought in the Court of the learned Subordinate Judge and that it should have been instituted in the Court of the learned Munsif who had jurisdiction to deal with the matter. For the purposes of jurisdiction the suit was valued at Rs. 6,000, which the plaintiff says is the value of the property attached, but on the other hand it is beyond doubt that the amount of decree sought to be enforced against the property was Rs, 1,300. It has been urged by the present appellant that the decretal amount determines the valuation of the suit and not the actual value of the property. In our judgment that contention has now been established beyond all doubt by a Full Bench decision of this Court in Mool Chand Motilal v. Ram Kishen 1933 A L J 222.
10. In that case it was clearly laid down that in a suit for a declaration that property is not liable to attachment and sale in execution of a decree, where the value of the property is in excess of the amount claimed in execution of the decree, the value of the suit for purposes of jurisdiction is not the value of the property but the decretal amount. In this case therefore the value of the suit was Rs. 1,300, and not Rs. 6,000. It is quite clear as far as the merits are concerned that the present appellant has not suffered by reason of the fact that the suit was instituted in the Court of the learned Subordinate Judge. He had the advantage of having the case tried by a more senior and more experienced judicial officer. However as the case was decided against him he did suffer to some extent by reason of the fact that the costs were based not upon a sum of Rs. 1,300 but upon a sum of Rs. 6,000. The suit being for a declaration the court-fee would be the same for suits of both these valuations but quite obviously counsel's fee in a suit for Rs. 6,000 is very much greater than the fee in a suit for Rs. 1,300. In our view the present appellant is entitled to some relief with regard to the costs in the Court below and we think that the counsel's fee awarded to the plaintiff in the Court below should be assessed on Rs. 1,300 and not on Rs. 6,000. With this slight variation, the decree of the Court below is affirmed. In the result therefore we allow this appeal to this extent and this extent only that the counsel's fee payable by the defendant to the plaintiff in the Court below must be assessed on a valuation of Rs. 1,300 and not Rs. 6 000. The present appellant has substantially failed on all the issues in this Court and he must therefore pay to the respondents the costs of this appeal.