(1) The second defendant in the suit is the widow of one Kumaraswami Gounder, who is the elder brother of the first defendant-appellant. She executed a promissory note on 5-8-1954. The holder assigned the promissory note to the plaintiff. The plaintiff issued a notice to the promisor on 25-9-1954. On 2-10-1654 the 2nd defendant widow purported to execute a release deed in favour of the first defendant-appellant, brother of her husband. On the same day, a maintenance deed was executed by the first defendant in favour of the second defendant. Subsequently, the plaintiff filed a suit upon the promissory note; but that suit was dismissed by the trial court. When the matter was pending in appeal, the parties compromised and there was a decree in the promissory note suit. The plaintiff, in execution of that decree, attached the suit properties as belonging to the husband of the 2nd defendant. The first defendant came in with a claim petition on the strength of the release deed. His case was accepted and the attachment was raised. It is against that order that the suit was filed by the plaintiff appearing in a representative capacity on behalf of himself and on behalf of other creditors of the 2nd defendant, praying that the claim order should be set aside as the alleged release deed had been executed with a view to defeat and delay the creditors.
(2) Both the courts have concurrently held that the object of bringing into existence this release deed must have been only with a view to defeat the claims of the creditors. This conclusion was partly based upon the provisions of Act V of 1954 which enacted a statutory presumption that every transfer of immovable property by a debtor entitled to the benefits under the Act during a specified period shall be presumed, until the contrary is proved, to have been made with the contrary is proved, to have been made with intention to defeat or delay the creditors of the transferor. The case set up by the first defendant-appellant that there was a valid surrender by the widow was rejected. His further contention that a surrender by a Hindu widow does not amount to a transfer which would bring the case within the scope of S. 53 of the Transfer of Property Act was also repelled. The appellant canvasses these conclusions in this second appeal.
(3) The short argument of Mr. T. K. Subramania Pillai, learned counsel for the appellant is that though the position of a Hindu widow might have been improved for the better by reason of the Act, she is yet competent to efface herself and accelerate the reversion. Having regard to the fact that there was due provision made for her maintenance she cannot now ask for partition of the property. It is said that the widow has no doubt the right to ask for a partition of the share that would have fallen to her husband. So long as she does not do so, she continues to be a member of the family entitled to the same interest as he husband had in the joint family. But if adequate provision had been made for her maintenance, then she can no longer ask for partition and in such a case where her interest has been replaced by a maintenance arrangement, there is no interest in the property which the creditors for the widow can attach. So runs the argument.
(4) It was also urged by Mr. Subramania Pillai that the surrender in the instant case is not a transfer of property within the meaning that can be attached to that expression under S. 54 of the Transfer of Property Act.
(5) It is unnecessary for the purposes of this second appeal to examine the provisions of the Act, and the status of the widow thereunder. There is no doubt that under the Act, the widow has been given certain enlarged rights. Mr. Subramania Pillai does not deny that if the widow had not executed a surrender deed, it would be open to the creditor to attach her interest in the property, though he cannot retain that interest after the widow's lifetime, for even that act confers only a limited interest known as the widow's estate in the widow. He, however, strongly urges that having asked for arrangement for her maintenance and simultaneously having surrendered her interest in the property, the widow has no remaining interest in that property which is attached. This question is, however, necessarily wound up closely with the genuineness and validity of the surrender transaction which I shall deal with separately. On the question, however, whether a surrender by the widow is a transfer within the meaning of S. 53, the authorities are no doubt not uniform. But there is a decision of the Allahabad High Court in Joti Prasad v. Basdeo Sahai Bhargava : AIR1946All267 , which holds that it is. It is not necessary to read any parts of this judgment. The learned Judges observed that the question is by no means free from difficulty, but on the whole and on a consideration of the case law, they were led to the view that the transaction was one which would come within the scope of S. 53 of the Transfer of Property Act. They relied, to a considerable extent, upon a decision of the Bombay High Court in Shivu Shidda v. Lackhmichand Tuljaram, AIR 1939 Bom 496. The learned Judge, in this Bombay decision, rested his conclusions on two Privy Council decisions, where the Judicial Committee speak of a surrender as an alienation. In the light of these decisions, it follows that the contention that the surrender cannot operate as a transfer within meaning of S. 53 of the Transfer of Property Act must fail.
(6) The circumstances in which the surrender document was executed have already been set out. It was only after the plaintiff issued the suit notice that this transaction was entered into. It was also seen from the evidence of D.W. 1, the appellant himself, that before executing the surrender document, the widow had informed him of the existence of this debt. It seems clear, in the light of those circumstances, that this transaction must have been entered into for the purpose of defeating any decree which the plaintiff might obtain in a suit which he had threatened to file. Even apart from that, it has been held in Subramania Aiyar v. Annavi Pillai, AIR 1942 Mad 522, that the question whether an alienation was in fraud of creditors or not is a pure question of fact, a finding upon which in conclusive in second appeal.
(7) It follows, therefore, that the judgements of the Courts below are correct. The appeal fails and is dismissed with costs. No leave.
(8) Appeal dismissed.