A. Varadarajan, J.
1. The plaintiffs, who failed in both the Courts below, are the appellants. The first appellant (first plaintiff) filed OS- No 137 of 1952 against the deceased second defendant and his two other brothers in the District Munsif's Court, Tiruppur, for partition and separate possession of an one-fourth share in certain family properties and obtained a preliminary decree for partition and separate possession of one-fourth share and costs of Rs. 428.51 on 25th March, 1957. Exhibit A-3 is the certified copy of the preliminary decree. Subsequently, he sold some properties to the second appellant (second plaintiff) and both the appellants filed an application for passing a final decree in I.A. No. 810 of 1959 on 25th October, 1960. Both the appellants filed E.P. No. 341 of 1962 for delivery of possession of the one-fourth share allotted to the first appellant and for attachment of the one-fourth share of the second defendant in three items of properties for realisation of the costs of Rs. 428.51. The three items of properties sought to be attached are : 1.16 acres of wet lands in Survey NO. 270/4, 6.09 acres of dry lands in Survey No. 265/1 and 8.56 acres of dry lands in Survey No. 268 of Karavalur village in Avanashi taluk. There was an order on 21st March, 1962 for attachment of the second defendant's share in those properties to be effected by 21st April, 1962 and the attachment appears to have been effected prior to that date. The first appellant's one-fourth share was delivered in E.P. No. 341 of 1962 on 1st April, 1962 and the attached properties were ordered to be sold on 8th January, 1963 and the execution petition was adjourned to 11th January, 1963 for further hearing. Subsequently, the second defendant executed the sale deed, Exhibit B-1 dated 14th May, 1962, in respect of his one-fourth share in the aforesaid properties in favour of the first defendant for a consideration which is recited as Rs. 4,000. However, he filed E.A.No. 56 of 1963 in that execution petition on 8th January, 1963 for adjournment of the sale fixed on that date and paid a sum of Rs. 100 and the sale was adjourned to 22nd January, 1963 on the same proclamation, after entering part-satisfaction. Again he filed E.A. No. 151 of 1963 in that execution petition on 21st January, 1963 saying that his properties are brought to sale an that day and he had already paid Rs. 100 and that in spite of efforts he was unable to secure anything more than Rs. 95 and that the sale may be adjourned by two months after entering part-satisfaction for that amount to enable him to pay the balance as the crops will be ripe for harvest only two months later. Exhibit A-8 is the copy of the affidavit filed by the second defendant in that application. The sale was adjourned to 5th February, 1963 and the execution petition was ordered to be posted on 8th February, 1963 for further proceedings. E.P. No. 341 of 1962 was dismissed on 8th February, 1963 keeping the attachment pending for three months, and E.P. No. 397 of 1963 was filed within that period for realising the balance of the costs by sale of the attached properties. In that execution petition the second defendant filed E.A. No. 2047 of 1963 on 4th November, 1963 for adjournment of the sale saying that the immovable properties belonging to him are brought to sale and he had been able to secure only Rs. 100 and that the sale may be adjourned by two months after entering part-satisfaction for that amount as the crops raised by him would be ripe for harvest only in two months. The sale was accordingly adjourned to 19th November, 1963 after entering part-satisfaction for Rs. 100 and the execution petition was posted to 23rd November, 1963 for further hearing. Exhibit A-9 is the copy of the affidavit filed by the second defendant in that application. The second defendant filed E.A. No. 2165 of 1963 on 18th November, 1963 for adjournment of the sale posted to 19th November, 1963 by two months saying that his properties are brought to sale on 19th November, 1963 and that the sale may be adjourned after entering part-satisfaction for a sum of Rs. 75 offered then as the crops raised on the lands will become ripe for harvest only two months later. The sale was accordingly adjourned to 3rd December, 1963 after entering part-satisfaction for Rs. 75. Exhibit A-10 is the copy of the affidavit filed by the second defendant in that application. The second defendant again filed E.A. No. 2415 of 1963 on 16th December, 1963 for adjournment of the sale by one month after tendering Rs. 50 saying that his properties are being brought to sale on 17th December, 1963 and that he may be given, a month's time for payment of the balance as the crops on the lands will be ripe for harvest only in a month. The sale was accordingly adjourned to 7th January, 1964 after part-satisfaction had been entered for Rs. 50 and the execution petition was dismissed on the adjourned date viz., 10th January, 1964. By that time a sum of Rs. 420 out of Rs. 428.51 for costs had been paid and mesne profits had to be ascertained under the preliminary decree. Mesne profits payable to the appellants by the second defendant were ascertained on 8th August, 1964 as Rs. 1,683.25 and the appellants filed E.P. No. 199 of 1965 for recovery of that amount and got the very same properties attached again on 6th April, 1965 and the sale was posted to 2nd November, 1965. Then the first defendant filed a claim petition in E.A. No. 1746 of 1965 on 27th October, 1965 on the basis of the sale deed, Exhibit B-1. The claim petition was allowed on 16th December, 1965. Exhibits A-1 and A-2 are the certified copies of the fair order and decretal order respectively made in that application. The appellants filed the present suit for setting aside this claim order.
2. The trial Court found that the recital in the affidavit, Exhibits A-8 to A-1 1, that the crops raised by the second defendant would become ripe for harvest in the future may relate to the other properties of the second defendant and dismissed the suit. This finding has been confirmed, by the learned Subordinate Judge of Coimbatore. Hence the Second Appeal.
3. The Learned Counsel for the appellants contends that both the Courts below had overlooked the fact that the second defendant has stated in the affidavits, Exhibits A-8 and A-9 filed after the date of the alleged, sale under Exhibit B-1 on 14th May, 1962 that his properties were being brought to sale for realisation of the costs due under the decree in the partition suit and that the lower appellate Court has wrongly cast the burden of proving that the first defend ant intended to defeat and, delay the creditors in executing Exhibit B-1 and submits that in these circumstances this Court would have jurisdiction to interfere with the judgment of the Court below in this second appeal.
4. The sale-deed Exhibit B-1, has been executed on 14th May, 1962 after the properties had been attached sometime prior to 21st April, 1962 for realisation of the costs of Rs. 428.51 payable to the first appellant from the second defendant under the decree in O.S.No. 137 of 1952 referred to above. On that day the mesn profits payable to the first appellant from the second defendant remained to be ascertained. Then it was that the second defendant had executed the sale deed, Exhibit B-1, in favour of the first defendant saying that the consideration of Rs. 4,000 had been paid to the second defendant. The evidence is that this amount was paid to the second defendant one hour prior to the time of registration of the sale deed and that the first defendant got this amount by effecting two sales of properties one week and one month prior to that date. The Learned Counsel for the appellants submits rightly that if there was any consideration for Exhibit B-1, it would have been paid before the Sub-Registrar, in which case there would have been a registration endorsement to that effect and that it is not probable that it would have been paid one hour before the time of registration of the document. He also submits that the first defendant has not produced any evidence to show that he had held properties one week or one month prior to the date of registration of Exhibit B-1 and was in a position to pay a consideration of Rs. 4,000 for the sale. It may also be noted that if the second defendant had received the consideration of Rs. 4,000 for the sale, it is not probable that he would have made the aforesaid five applications from time to time for adjournment of the sale paying small amounts on each of those occasions and saying that he required the time to enable him to realise the money by harvest and pay the same. It cannot be stated that there is no substance in these submissions of the Learned Counsel for the appellants.
5. The sale under Exhibit B-1 was made in this case on 14th May, 1962 after the attachment of the properties sometime prior to 21st April, 1962 for the costs due under the decree in O.S. No. 137 of 1952. There was also a decree for mesne profits which came to be ascertained as Rs. 1,633.25 on 8th August, 1964.
6-7. Venkatarama Ayyar, J., has observed in Naniams v. Rangappa : AIR1954Mad173 , that :
It was next contended that the sale under which the 3rd defendant claims was in execution of a decree for costs passed in favour of the 4th defendant in O.S. No. 78 of 1937 on 3rd March, 1937, that that was not a debt which was in existence on the date of the gift in favour of the appellant on 5th August, 1932 and that, therefore, the 4th defendant was not himself entitled to avoid the deed of gift under Section 53 and that the auction-purchaser succeeding to his rights could not claim higher rights. But the decree for costs was passed in an action for specific performance of the agreement dated 20th July, 1935 which in turn was for the discharge of the promissory note dated 25th July, 1932. The decree can, therefore, be ultimately traced to a debt which was in existence on the date of the deed of gift. Apart from that, under Section 53 of the Transfer of Property Act it is not merely the creditors who are in existence at the date of the transfer but also subsequent creditors that are entitled to avoid it. Therefore, It could not be stated that the alienation was not made to avoid the creditors in the present case. The alienation has been made on 14th May, 1962. There is no satisfactory evidence to show that the first defendant was put in possession of the properties on the date of the sale. The first defendant has produced only one kist receipt (Exhibit B-2) dated 6th February, 1966, which has been issued to the first defendant in respect of survey numbers 10 and 313, which are not the suit properties. There is, therefore, no satisfactory evidence to show that the first defendant was in possession of the properties in pursuance of the alienation under Exhibit B-1, although the learned District Munsif has observed In paragraph 8 of his judgment that as far as the kist receipts are concerned P.W.1 himself has admitted in the box that the first defendant has been paying kist for the past 6 or 7 years. There appears to be a mistake in the admission by P.W.1 in view of the fact that that the first defendant has not produced any kist receipt to prove that he paid any kist for the suit properties.
8. There was undoubtedly delaying the creditors in this case as the second defendant had filed five applications for grant of time and the claim petition had been filed only on 27th October, 1965 long after the dismissal of E.P. No. 341 of 1962 in which the properties had been attached some time prior to 21st April, 1962 and after the properties were attached once again in the subsequent E.P. No 199 of 1965 on 6th April, 1965.
9. The learned Subordinate Judge has observed in paragraph 13 of his judgment that it may be that the second defendant had a bad intent when he negotiated with the first defendant and sold his properties under Exhibit B-1. But so long as there is no evidence and proof that the first defendant also knew of such intent on the part of the second defendant, the first defendant had acted in good faith and purchased the properties for consideration, and the transaction under Exhibit B-1 cannot be approved. He has, thus thrown the burden on the appellants or proving that the first defendant was aware of the intent of the second defendant to defeat and delay the creditors. But the Supreme Court has observed in Abdul Shukoor Saheb v. Pappa Rao : (1964)1MLJ49 as follows :
Where fraud on the part of the transferor is established, i.e., by the terms of paragraph (1) of Section 53(1) being satisfied, the burden of proving that the transferee fell within the exception is upon him and in order to succeed he must establish that he was not a party to the design of the transferor and that he did not share the intention with which the transfer had been effected but that he took the sale honestly believing that the transfer was in the ordinary and normal course of business. When once the conclusion is reached, that the transfer was effected with the intention on the part of the transferor to convert the property into cash so as to defeat or delay his creditors, there cannot be any doubt on the evidence on record that the plaintiff shared that intent.
Therefore, it would appear in cases of this kind, the burden of proving that the transferee did not share the intention of the transferor, who defeated the creditors by effecting the transfer, is upon the transferee and not upon the plaintiff who attacks the alienation as having been made with intent to delay and defeat the creditors.
10. With regard to the jurisdiction, of this Court to interfere with a case of this kind, where both the Courts below have agreed that the alienation was not made with Intent to defeat and delay the creditors, the Learned Counsel for the appellants invited my attention to the decision in Jogi Reddi v. Chinnabbi (1929) I.L.R. 52 Mad. 83 (P.C.) : 1929 56 M.L.J. 165 : 56 I.A. 6 : 114 I.C. 5.: A.I.R 1929 P.C.13, where the Privy Council has observed :
Their Lordships would further observe that all the Courts below seem to have thrown the onus upon the appellant of proving that the properties he claimed were his own, instead of placing it as it should be upon the plaintiff. It therefore appears to their Lordships that there is no question of fact so found that can be binding upon an Appellate Court on a second appeal ; and that It is necessary for them to consider what Is the true position.
It would appear from this decision of the Privy Council that where the decision has been rendered throwing the burden wrongly on a party, merely on that basis the Appellate Court In second appeal would have jurisdiction to go into the matter and consider the evidence in the case. Therefore, I agree with the Learned Counsel for the apppellants that this Court in second appeal has jurisdiction in the present case to go into the question whether on the evidence, the appellants have established that the alienation was made in this case to defeat and delay the creditors.
11. On the materials placed before me and referred to above, I find that the alienation under Exhibit B-1 in this case has been made with intent to defeat and delay the creditors of the second defendant, and allow this second appeal with costs throughout. No leave.