Jagat Narayan, C.J.
1. This is a plaintiff's appeal against a decree of District Judge, Bikaner, dismissing her suit under Order 21, Rule 63, Civil P. C. for a declaration that a building which was got attached by firm Jawarmal Sultanmal of Barmer in execution of their decree against Shri Vijay Trading Company, Bikaner, belongs to her and was in her possession and was not liable to be attached and sold in execution of that decree.
2. The facts are these--Firm Jawarmal Sultanmal of Barmer filed a suit against the firm Shri Vijay Trading Company. Bikaner, and its partners Bajranglal and Shivkishan of Bikaner, on 4-1-1961 in the Court of District Judge, Balotra.
3. During the pendency of this suit Bajranglal executed the sale deed of the present building which belongs to him, on 21-4-1961 in favour of his wife Smt. Ratan Devi who is the plaintiff in the present suit.
4. The suit was decreed on 15-9-1962 for Rs. 13,605/- and the building in suit was attached in execution of the decree on 18-4-1963. Smt. Ratan Devi filed an objection under Order 21, Rule 58, Civil P. C. which was dismissed on 4-12-1964. Then she filed the present suit on 6-2-1965.
5. The case of the plaintiff is that various sums of money were gifted to her from time to time by her parents on different occasions and they were lying with them in Calcutta. She wanted to start wool business at Bikaner and wrote to her mother to send her money. Wool business was carried on by Smt. Ratan Devi in the name of Naraindas and Co. through firm Gulabchand Surajmal. One of the partners of this firm Ramkishandas was a friend of the plaintiff's monther Smt. Nathi Bai. Smt. Nathi Bai sent a sum of Rs. 30,473/- by draft to the firm Gulabchand Surajmal for being paid to Smt. Ratan Devi. The further case of the plaintiff is that the wool business which she carried on in the name of Naraindas and Co., did not prove particularly profitable and she stopped carrying it on and advanced a sum of Rs. 35,900/-to her husband in different sums for carrying on wool business at Bikaner in partnership with one Shiv Kishan under the name and style of Shri Vi-jay Trading Co. Her husband did not repay her money despite her demands. He handed over possession over the building in suit to her in December, 1960 promising that he would try to repay her money and if he was unable to do so, he would transfer the building to her. The building was let out by Smt. Ratan Devi to the Food Department of the Government of India on a rent of Rs. 400/- per month. Documents have been produced to prove this allegation. These documents were admitted by the contesting defendants M/s. Jawarmal Sultanmal. On 21-4-1961, Bajranglal executed a sale deed of the building in suit in favour of Smt. Ratan Devi in part satisfaction of the debt.
6. Firm M/s. Jawarmal Sultanmal contested the suit. It was alleged that the plaintiff had neither any money of her own nor she lent any sum to defendant Bajranglal. It was disputed that possession over the building in suit was transferred to the plaintiff by Bajranglal in December, 1960 and she let it out to the Government of India. Further, the execution of the sale deed in favour of the plaintiff by Bajranglal was denied. In the alternative, it was pleaded that the sale deed, if any, was fraudulent and collusive and was made to defraud and delay the claim of Bajranglal's creditors.
7. The trial court framed a number of issues and held that Bairanglal executed a sale deed of the building in suit on 21-4-1961 in favour of the plaintiff. It found that the plaintiff failed to prove that she had any money of her own which she gave on loan to her husband in lieu of which the sale deed in question was executed. On these findings, it dismissed the suit with costs.
8. We have been taken through the evidence on record by the learned counsel for the parties and we are satisfied that the finding of the learned District Judge is erroneous. The sole question which arises for decision in this suit is : whether there was a genuine debt in favour of the plaintiff on 21-4-1961 in consideration of which the sale deed of the building in suit was executed
9. If there was a genuine debt in favour of the wife then the wife was a creditor of Bajranglal and the effect of executing a sale deed of his property in her favour was to give undue preference to her over his other creditors. In Middleton v. Pollock, (1876) 2 Ch. D. 104 it was held.
'The transfer which defeats or delays creditors is not an instrument which prefers one creditor to another but an instrument, which removes property from the creditors to the benefit of the debtor. The debtor must not retain a benefit for himself. He may pay one creditor and leave another unpaid. So soon as it is found that the transfer here impeached was made for adequate consideration in satisfaction of genuine debts and without reservation of any benefit to the debtor, it follows that no ground for impeaching it lies in the fact that the plaintiff who also was a creditor was a loser by payment being made to this preferred creditor there being in the case no question of bankruptcy.'
10. The above decision was followed by their Lordships of the Privy Council in Mina Kumari Bibi v. Bijoy Singh Dudhuria, AIR 1916 PC 238. The facts of this case were these-
'A obtained a decree for his debt against a debtor B. In execution of the decree the debtor's property was attached on the 23rd August and sold to C. Before the attachment on the 13th July. B had sold the property to a relation D in part satisfaction of a debt due to her. B of set purpose gave preference to a creditor with whom he was connected by family ties but this was not fraudulent under the section for a debtor may pay his debts in any order he pleases and prefer any creditor he chooses if no question of bankruptcy is involved.'
It was held that 'D was entitled to possession of the property as against C.' (Here their Lordships discussed the evidence (Paras 11-17) and proceeded):
18. From the above evidence we are satisfied that there was a genuine debt of more than Rs. 20,000/- outstanding in favour of the plaintiff against her husband on the date of the sale deed. It has not been alleged by the contesting defendants that the consideration of Rs. 20,000/- paid for the building in suit was inadequate.
19. We accordingly, hold that the transfer by Bajranglal of the building in suit in favour of his wife was not voidable under Section 53 of the Transfer of Property Act. It was merely a preference of one creditor over another. Such a preference does not amount to a transfer defeating or delaying the creditors, within the meaning of Section 53, of the Transfer of Property Act.
20. We accordingly allow the appeal, set aside the decree of the learned District Judge and declare that the building in suit is not attachable or saleable in execution of the decree of the firm M/s. Jawarmal Sultanmal.
21. Having regard to the circumstances of the case, we leave the parties to bear their own costs throughout.