1. It appears that Maharaj Singh and his son, Ram Chandra alias Ratan Singh, were members of a joint undivided Hindu family and had some joint family property. Daring the time that the family was joint, a certain item of property was acquired by right of pre-emption. On the 27th of February 1903 Maharaj Singh executed a tamliknama in favour of his son Ram Chandra in respect of the said property. On the 12th of December 1914 Mathura Prasad and Parbhu Dayal obtained a decree for their share of profits in m certain village against Maharaj Singh. In execution of that decree they attached the property that had been conveyed by the tamliknama of the 27th of February 1903 to Bara Chandra, the son of Maharaj Singh. He objected to the attachment on the ground that the property attaahed belonged to him. The objection was disallowed on the 7th of July 1917. There upon the suit out of which this appeal has arisen was instituted by Ram Chandra against the decree-holders, Mathura Prasad and Parbhu Dayal, for a declaration that the property sought to be attached by them was not liable to attachment and sale in execution of their decree. The claim was resisted on various grounds. It was urged on behalf of the defence that the tamliknama relied upon by the plaintiff conveyed no title to him inasmuch as the property, the subject of the tamliknama, was part of the joint family property and the family being joint one member of it could not transfer any portion of the joint property to the other. Moreover, Section 53 of Act IV of 1882 was also pleaded in bar of the claim. The Court of first instance dismissed the claim. On appeal the decree of the first Court was affirmed. In second appeal to this Court it is contended on behalf of Ram Chandra that the defence under Section 53 of Act IV of 1832 is not open to the defendants, inasmuch as they did not bring, as they ought to have brought, a regular suit to have it declared that the tamliknama of the 27th of February 1903 was inoperative and not binding against the creditors of Maharaj Singh. This contention is based on the case of Subramania Aiyar v. Muthia Chettiar 43 Ind. Cas. 631 : 41 M. 612 (F.B.) : 6 L.W. 750 : 33 M.L.J. 705. The contention for the plaintiff appellant is, no doubt, borne out by the case relied upon by him but it appears to me that, on the findings of the Courts below, this appeal can be disposed of without expressing an opinion on the question whether the defence under Section 53 of Act IV of 1882 is open to the defendants in the present case. It has been found by the lower Appellate Court that Maharaj Singh and Ramchandra were members if a joint undivided Hindu family at the item that the tamliknama was executed and that the property conveyed by the said deed was part of the joint family property. Under these circumstances, the deed of the 27th of February 1903 was an invalid deed that conveyed nothing to Ramchandra, A member of a joint undivided Hindu family cannot legally transfer a portion of the joint family property to another member of the family. The transfer being, therefore, merely a paper transaction, under which no interest passed to the transferee, the case relied upon by the learned Vakil for the plaintiff appellant is not in point. The plaintiff cannot, therefore, maintain the present suit on the basis of the deed of the 27th of February 1903. The conclusion arrived at by the lower Appellate Court, in my opinion, was a correct one and I would dismiss the appeal.
2. While concurring with the decision of my learned colleague, that the finding to the effect that the property, which the tamliknama purported to transfer, was the joint property of a joint Hindu family governed by the Mitakshara Law, is fatal to the success of the appeal, I think it advisable to note a decision on two legal points, which have been argued by the learned Vakil for the appellant. The first point is this. He argued that, inasmuch as the debt due from Maharaj Singh which formed the basis of the simple money-decree against him had not been incurred (and could not neceasarily have been incurred) at the time, that the tamliknama of the 27th of February 1903 was executed, the provisions of Section 53 of Act IV of 1882 had no application. His case here was, that the provisions of that section did not protect, future creditors. It has usually been considered settled law that the provisions of that section do protect future creditors, but I have not been referred to any decision of this Court to support the proposition. There is, however, a decision of the Madras High Court in Thomas Pillay v. Muthurama Chettiar 4 Ind. Cas. 301 : 33 M. 205 : 19 M.L.J. 747 : (1910) M.W.N. 285 : 7 M.L.T. 28, which decides, that subsequent creditors are within the rule enunciated in the first clause of Section 53 Act IV of 1882. The section in question re produces the provisions of the Statute of Elizabeth, 13-Eliz. C. 5, and in the interpretation of the words of that section guidance may be sought from English decisions upon the subject. The Bench of the Madras High Court, which arrived at the decision that I have just quoted, have sited certain English cases in support of their decision. I add the dictum of Wood, V. C. in Holmes v. Penney (1856) 3 K. & J. 90 at p. 99 : 26 L.J. Ch. 179 : 3 Jur. (N.S.) 60 : 5 W.R. 132 : 112 R.R. 49 : 69 E.R. 1035: 'Where, in order to evade the Statute, a person, being considerably indebted, makes a voluntary settlement, which would be void if impeached by those who were then his creditor?, and afterwards pays them off, and a new set of creditors stand in their places...such a settlement would be void against the subsequent creditors, because it would be a fraud upon the Statute.' It is unnecessary to quote other authorities. As I understand it, the law is clear. Where a man makes a fraudulent transfer in order to evade his existing obligations, that transfer can be impeached by creditors whose obligations are of a later date.
3. The second point taken by the learned Vakil is this, A Full Bench case reported as Subramania Ayyar v. Muthia Chettiar 43 Ind. Cas. 631 : 41 M. 612 (F.B.) : 6 L.W. 750 : 33 M.L.J. 705, lays down the proposition that, when a decree holder attaches property which he states to be the property of the judgment debtor, and a third party pleads in execution that that property is not the property of the judgment-debtor, because it has been transferred by a good and valid deed, and is met with the reply that the deed is a fraudulent deed, and when the Court of execution decides that the deed is a fraudulent deed and upholds the attachment, it is not open to the decree-holder to plead, in a subsequent suit brought against him by that third party for a declaration, that the deed is a valid deed, that the deed is fraudulent, unless he has previously himself filed a suit for a declaration that the deed is fraudulent and obtained a decree. This is a decision of a very far reaching nature. It decides finally a most important Question of procedure. It drives such a decree-holder into Court to bring a regular suit, and deprives him of the right, which, at first sight, he would appear to have, to impeach the validity of a fraudulent document. It remains to be seen what arguments were advanced by the learned Judges of the Madras High Court who arrived at this conclusion.
4. The judgments are very short. Ayling, J., who gave the first decision, stated that he based it entirely upon a-previous decision of a Bench of the Madras High Court. He recognised the fact that the view which he took was opposed to the view taken by a Bench of the Calcutta High Court in the case of Abdul kader v. Ali Meah 14 Ind. Cas. 715 : 15 C.L.J. 64 : 16 C.W.N. 717. Seshagiri Aiyar, J., who had been a party to the previous decision on which Ayling, J., relied, stated that he saw no reason to change the view at which he had arrived in the former case, Bakewell, J., agreed. It is, therefore, necessary to examine the views taken by the learned Judges who decided the previous cape. That case is reported as Palaniandi Chetti v. Appavu Chettiar 34 Ind. Cas. 778 : 30 M.L.J. 665 : 19 M.L.T. 390, The facts closely resemble the facts in the appeal before us. A decree-holder attached certain property in execution of his decree; a third party came forward and claimed that property by virtue of a deed of transfer from the judgment debtor. The Court of execution found the deed of transfer to be void or voidable at the instance of the decree-holder. The attachment was upheld. The third party then brought a suit against the decree-holder for a declaration that the transfer was good. The learned Judges, who heard the appeal, decided that it was not open to the decree-holder as a defendant to challenge the validity of the deed. They held that, unless and until he had obtained a decree as plaintiff declaring the deed to be invalid, his mouth was closed, and that such a plea was not open to him.
5. Coutts-Trotter, J., (the learned Judge whose decision appears first in the report) stated that Section 53 was a reproduction of the Statute, 13 Eliz. C. 5, and that the English decisions on that Statute we authorities on the construction of the Indian Section. I agree with that view. It appears to me that the next conclusion drawn by that Judge does not follow from the previous conclusion. The next conclusion is that, unless the English procedure permits the decree-holder to plead in subsequent proceedings that a transaction is fraudulent, he cannot be permitted to take such a plea in an Indian Court. For the interpretation of Section 53 the Courts would undoubtedly go to the English authorities, as the section in effect contains the rule of law in England upon the point, but with regard to the question of procedure, it does not appear to me that the practice in England can bind Courts in India as the procedures in Courts in India and Courts in England are based upon different rules of practice and different enactments. Coutts-Trotter, J., went care-fully into the question whether such a decree-holder in England, as the decree holder in the case before him, could raise such a plea by way of a defence in a suit in which he was a defendant. He arrived at the conclusion that, in an English Court, he would not be permitted to raise such a plea. I need not discuss whether such a person in England could raise such a plea. The question which we have to decide is, whether be can raise such a pie in India, and it depends for its answer on a decision whether there is anything in the Civil Procedure Code or elsewhere which forbids him to take such an attitude. I have been unable to discover anything in the Civil Procedure Code, or any other law, which prevents such a person from taking such an attitude, and, in the circumstances, applying the general principles that Courts should not add anything to the existing law, and not narrow the door open to litigants, I decide that it was open to the respondents to take the position that' they did. The decision of the other Judge, Seshagiri Aiyar, J., was to the same effect as the decision of Coutts Trotter, J. The view of the Madras High Court is opposed to the view taken by the High Court in Calcutta. In Abdul Kader v. All Meah 14 Ind. Cas. 715 : 15 C.L.J. 64 : 16 C.W.N. 717 two learned Judges of the Calcutta High Court laid down that, in such circumstance', the decree holder could bring an independent suit himself but that he could also do as a defendant what he could have done as a plaintiff, In Hem Chandra Sarhar v. Lalit Mohan 14 Ind. Cas 515 : 16 C.W.N. 715 : 16 C.L.J. 837 a Bench of the Calcutta High Court arrived at the same principle its slightly different circumstances. That Bench laid down that, where a mortgage executed by guardian legally appointed for a minor, was executed without the permission of the Court the mortgage was voidable at the instance of the minor. The decision proceeds that it is not necessary for the minor after attaining majority to set aside the transaction, but he may declare his will to rescind by way of defence in an action against him. The views taken in Calcutta appear to me to be based upon a correct construction of the law on the subject. I, therefore, consider that there is no force in either of the pleas raised by the learned Vakil for the appellant and concur in the order dismissing this appeal with costs.
6. The order of the Court is, that the appeal fails and is dismissed with costs.