1. The case, apparently, was not argued fully before the Courts below. The points arising for decision have now been discussed in all their aspects; and our conclusion is that the decision of the Court below is right.
2. The first point for consideration is whether the decree obtained by the plaintiff was for a debt which was in existence when the release deed was executed by the 1st defendant to the 4th defendant in 1901. To enable us to decide this question, we gave time to the Vakils appearing on either side to produce the judgment obtained against the 1st defendant by the plaintiff; we now admit it under Order XLI, Rule 27, of the Code of Civil Procedure as Exhibit B. The document is necessary to enable us to pronounce judgment and as the learned Vakils took time to produce the document before us, we think we have power under Order XLI, Rule 27, read with Order XLI, to admit the new document in evidence, and we accordingly do so From this document it is clear that the plaintiff was a creditor before the 1st defendant released his rights to the 4th defendant. Consequently Section 53 of the Transfer of Property Act is applicable to his claim, if that section is other wise applicable.
3. It was next contended that plaintiff being only one of the creditors, the suit is not maintainable to impeach the release-deed. There is no evidence of the existence of other creditors and consequently the decision in Mina Kumari Bibi v. Bijoy Singh Dudhuria 40 Ind. Cas. 242 : 21 M.L.T. 344: 19 Bom. L.R. 424 does not govern this case.
4. The main contention was that the release was not fraudulent. The finding is that on the date of the release, the 1st defendant had sub mortgaged the right derived by him from the 4th defendant's husband; and that being a man of loose morals and reckless habiti, he released his rights in favour of the mortgagor's widow, the 4fh defendant, who was his near relation. There can be no doubt from a perusal of Exhibit A, the judgment obtained by the sub mortgagee against the 1st defendant and the 4th defendant, that the object of the release was to defraud the sub mortgagee; that is to say, that the transfer was not bona file. In this view, the decision in Musahar Sahu V. Hakim Lal 32 Ind Cas. 343 : (1916) 1 M.W.N. 198 : 18 Bom. L.R. 378 does not help the appellant. The Judicial Committee held in that case that the essence of the mischief contemplated by Section 58 of the Transfer of Property Act is that there must be an intention to secure a benefit to the transferor; on a reference to the judgment of the High Court in Hakim, Lal v. Mooshahir Sahu 11 C.W.N. 889, from which Musahar Sahu v. Hakim Lal 32 Ind Cas. 343: 20 C.W.N 393 : 14 A.L.J. 198 : (1916) 1 M.W.N. 198 was the appeal to the Judicial Committee, it is dear that in that case the transfer was made bona fide without reserving any right to the transferor. In the present case, the elenient of bona fides is wanting. The 1st defendant acted recklessly and with the evident intention of cheating his sub-mortgagee. Therefore Musahar Sahu v. Hakim, Lal 32 Ind Cas. 343: 14 A.L.J. 198: 18 Bom. L.R. 378 does not affect the present ease.
5. It was lastly argued that on the finding that Rs. 1,500 out of Rs. 4,000 was paid, the transaction cannot be said to be fraudulent. This was the argument put forward in Chidambaram Ghattiar v. Sami Aiyar 16 M.L.J. 427and negatived by the learned Judgs. When the matter was taken up before the Privy Council, Mr. De Gruyther did not apparently consider the point arguable; we must, therefore, take it that in cases of similar transactions not coming under the Transfer of Property Act, the fact that a portion of the consideration was actually paid will not necessarily clothe the transaction with reality. We think the same considerations apply to cases under the Transfer of Property Act. The protection sought to be given is the same in both the cases; and we are prepared to follow Koolayappa Rowther v. Balusami 4 Ind. Cas. 1140 and Soma Row v. Doraswamy Chettiar 18 Ind. Cas. 768 : 13 M.L.T. 206, where the principle of Chidambaram Chettiar v. Sami Aiyar 16 M.L.J. 427 has been extended to transactions under Section 53 of the Transfer of Property Act The case of Bhagwant v. Kedari 2 Bom. L.R. 986 is distinguishable on the facts of that case. As regards the decision in Jaladanki China Pitchiah, In re 11 Ind. Cas 868 : (1911) 2 M.W.N. 152. it is enough to point out that it is a decision of a single Judge and that in that case, there was no intention to defeat or delay any one. It may be that where a portion of the consideration remains unpaid owing to no fault of the transferee, the transaction should not be impeached as fraudulent. It is only to that extent we think that the decision in Jaladanki China Pitchiah, In re11 Ind. Cas 868: (1911) 2 M.W.N. 152; should be regarded as an authority.
6. For all these reasons we are of opinion that the decision of the learned District Judge is right. We dismiss the second appeal with costs The Vakil for the respondent will pay the necessary Court-fee on the new document.