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Mooli Devi Vs. Pareek Commercial Bank and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Special Appeal No. 2 of 1977
Judge
Reported in1977WLN(UC)116
AppellantMooli Devi
RespondentPareek Commercial Bank and ors.
DispositionAppeal dismissed
Excerpt:
civil procedure code order 21 rule 63 and transfer of property act - gift--v apprehending liability to pay huge amount to bank-- making oral gift of property to his daughter--held, it was done with an intent to defeat claim of creditors.;appeal dismissed - - 2 the contention is that this plot was given in gift by a registered deed but the document was executed in the year 1953. the appellant knew it very well in the year 1952 when the winding up proceedings had already taken place and the liquidator appointed for the bank that a large amount outstanding against him would be recovered vastulal was apprehensive of his liabilities and so he made fantastic efforts to save his properties......dated september 10, 1976 of the learned single judge in civil suit no. 1 of 1970 hereby the learned judge dismissed the suit of the plaintiff under order xxi, rule 63, civil p.c., and refused to set side the attachment dated february 13, 1960 and the sale effected on april 28, 1968 of the property in dispute.2. tersely speaking the facts giving rise to the present appeal are that the pareek commercial bank became a public limited concern in october 1943 and vastulal partek respondent no. 2, father of the appellant remained chairman and principal officer of the bank till the date of liquidation. prior to liquidation he committed a breach of trust regarding defalcation resulting in a loss to the bank. the bank was ordered to be wound up in july 1952 and in the same year a liquidator.....
Judgment:

M.L. Shrimal, J.

1. This appeal is directed against the judgment dated September 10, 1976 of the learned Single Judge in Civil Suit No. 1 of 1970 hereby the learned Judge dismissed the suit of the plaintiff under Order XXI, Rule 63, Civil P.C., and refused to set side the attachment dated February 13, 1960 and the sale effected on April 28, 1968 of the property in dispute.

2. Tersely speaking the facts giving rise to the present appeal are that the Pareek Commercial Bank became a public limited concern in October 1943 and Vastulal Partek respondent No. 2, father of the appellant remained Chairman and Principal Officer of the Bank till the date of liquidation. Prior to liquidation he committed a breach of trust regarding defalcation resulting in a loss to the Bank. The Bank was ordered to be wound up in July 1952 and in the same year a liquidator was appointed. On an application filed under Section 235 of the Companies Act, 1913 by the Liquidator this Court ordered Vastulal to pay a sum of Rs. 1713.32 paisa and Rs. 13049 35 paisa and Rs. 39.527.34 paisa with interest at the rate of 6% per annum The amount payable on February 13, 1960 including interest came to Rs. 54, 35991 paisa During the course of recovery of this amount the suit property along with the other properties was attached. Being aggrieved by the attachment Vastulal filed an objection petition dated May 5, 1961 Ex. A.1 against attachment and sale. In para No. 3 of the application the disputed property has been shown to be as that of Vastulal. The appellant also filed an application under Order XXI, Rule 58 Civil P.C., which was rejected by the Court, and thereafter the present suit was filed.

3. The contention of the appellant before the learned Single Judge was that her father Vastulal gifted two plots : one measuring 1352 sq. yds and the other measuring 949 sq. yds. (hereinafter referred to as plots Nos. 1 and 2 for convenience), on Ganga Sahar Road, at the time of her marriage. It is alleged that the possession of plot No. 1 was given to the appellant. As regards Plot No. 2 it was agreed that the possession will be transferred when the patta' and the demarcation of the plot will be made in favour of Vastu Lal. The appellant's case was chat after her marriage, her husband constructed a house on plot No. 1 and on plot No. 2 later on after 1953 some constructions were made The suit was contested by the defendant-respondent Company. The fact of giving plot in gift in the year 1935 at the time of marriage was contested and it was contended that the transfer was made fraudulently with an intention to defeat or delay the claims of the creditors of the transferor.

4. On the pleadings of the parties the learned Single Judge framed ten issues. While deciding Issues Nos. 1, 2 and 3 the learned Judge noticed the following infirmities in the case of the appellant:

(i) No document, evidencing the transfer of the plot, at the time of marriage, was produced.

(ii) Mr. K.P. Johari, who is alleged to be the tenant in the suit property, was not produced

(iii) No lent deed was produced.

(iv) The entries made in the Pass-Book Ex. 18 were found to be spurious, (v) Shri Vastulal was not examined to prove the case of the plaintiff-appellant regarding making of the gift at the time of marriage.

5. The learned Judge after carefully considering the various discrepancies appearing in the statements of the plaintiff and her witnesses, came to the conclusion that the statements of the plaintiff-appellants & her witnesses were not true. On the basis of the above finding, the learned Judge held that there was no satisfactory evidence on the record to prove that the plot No. 1 was given in gift to Mst. Mooli Devi in 1935 and thereafter she remained in continuous possession of the plot and constructed a portion of the house on it at her cost. The arguments advanced before the learned Single Judge have been reiterated before us and ii is not necessary to repeat them, because they have been dealt with in detail by the learned Single Judge.

6. The learned Counsel, appearing on behalf of the appellant has urged that an oral gift could be made because the Transfer of Property Act was not in force in Bikaner. Even if this point is decided in favour of the appellant it does not affect the result of the decision of the issues arrived it by the learned Judge, because the learned Judge after taking into consideration the entire evidence on at cord and the improbabilities of the case has come to the conclusion that the gift of the plots in favour of the appellant was not made in the year 1935 at the time of her marriage. As regards plot No. 2 the contention is that this plot was given in gift by a registered deed but the document was executed in the year 1953. The appellant knew it very well in the year 1952 when the winding up proceedings had already taken place and the liquidator appointed for the Bank that a large amount outstanding against him would be recovered Vastulal was apprehensive of his liabilities and so he made fantastic efforts to save his properties. It has been urged On behalf of the appellant that Vasmlal has huge properties in his possession and the entire amount could have been recovered from the sale of the property, but even though the entire properties of Vastulal had been sold yet some amount remained due against him. At the time of executing the gift deed dated April 8, 1953 Vastulal was so very apprehensive of his liability to pay huge amount in connection with the dealings of the Bank that he thought of making a transfer of the suit properties to his daughter, and the learned Judge was correct in holding that the intention of Vastulal in making this gift was to defeat or delay the claim of the or editors arising out of the dealings with the Bank.

7. We find no merit in this appeal and dismiss it summarily.


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