W. Comer Petheram, Kt., C.J.
1. We think that this rule must be made absolute. The rule arises out of an application for the attachment of certain properties which are claimed by the applicant to answer the judgment at the suit of the Manager of the Tikari Raj, against a lady of the name of Janki Kooer, and this property has been attached in the hands of the present applicant by the present decree-holder on the ground that it was originally the property of the judgment-debtor. It was transferred by her to the present applicant, the consideration for the transfer being an annuity payable by the transferee to her, and also an agreement on his part to discharge certain debts due by her including (it was contended) the debt in question in respect of which this claim is made.
2. The Subordinate Judge has directed that this property should be sold to answer that claim, on the ground that by that document which transfers the property the present applicant does agree to pay this debt, and in consequence of that he became a trustee of the property for the judgment-debtor, and consequently the property was liable to attachment in his hands.
3. Assuming that the view of the meaning of the document with reference to the liability of the applicant to pay this sum of money be correct, as to which I at all events must not be understood as expressing any opinion whatever, I am of opinion that that would not be sufficient to entitle the decree-holder to attach this property in the hands of the transferee. The debt, as I said just now, was the debt of Janki Kooer, and the property which is attached is admittedly now the property of the applicant. It is not disputed that it was transferred to him by the judgment-debtor bona fide for a consideration, and consequently that property has been transferred to him, and is now his property. If the object of the decree-holder is to get rid of the effect of that transaction by showing that it is not binding upon him under Section 53 of the Transfer of Property Act, or by contending that, notwithstanding that transaction, the applicant is liable to pay this debt because he has agreed with the judgment-debtor to pay that for her, he must be made liable to pay it in some other proceeding much more elaborate than this one. Before his property can be attached and sold, there must be a declaration that he has become responsible for this debt as well as the judgment-debtor and bound to pay it, and until that has been done, his property cannot be attached.
4. For these reasons, it seems to us that the Subordinate Judge was acting beyond his jurisdiction in directing that this property which belongs to a person other than the judgment-debtor should be attached and sold to answer her debt in an execution proceeding arising in a suit to which the present applicant is no party, and the result is that this rule must be made absolute to set aside the order of the lower Court, and we think that the decree-holder must pay the costs of the present applicant.
Ameer Ali, J.
5. This rule arises out of the following circumstances: The judgment-debtor Janki Kooer brought a suit against the decree-holder to recover possession of a certain property. Her claim was dismissed by the first Court. On appeal, however, to this Court, a decree was made in her favour, in execution of which she obtained possession of the property in question, and subsequently thereto recovered the costs decreed to her by the High Court. The defendant thereupon appealed to the Privy Council which, reversing the judgment of the High Court, dismissed the suit of Janki Kooer. This was in 1885. On the 15th of January 1886, the defendant applied to recover possession of the property with mesne profits, and for an order that Janki Kooer should refund the costs realized by her.
6. The Subordinate Judge, on the 4th of December 1886, granted the execution of the decree in respect to the recovery of the property and the refund of the costs, but referred the defendant (the present decree-holder) to a separate suit for mesne profits. The matter then came up to the High Court which allowed his claim as to mesne profits which was finally ascertained on the 10th of August 1889, and a decree passed in respect thereof on that date. In the meantime, that is on the 29th of May 1881, Janki Kooer conveyed by a hibanama all her properties to the petitioner before us subject to certain conditions, two of them being that the petitioner should pay her annuity during her lifetime and pay 'from his person or property, or in any other way he thinks fit to the Court of Wards Tikari Raj, to the decree-holder aforesaid, the debts of costs and refund of costs.'
7. There is no question that the petitioner has been in possession of the properties conveyed to him under the deed, and that pursuant to the covenants already referred to he has been paying the annuity to the judgment-debtor. It is also not disputed that the costs realizable by the decree-holder have been paid to him by the petitioner. On the 31st March 1890 the decree-holder applied to execute his decree for mesne profits by the attachment of the properties conveyed under the hibanama. On the 11th of October 1890 the petitioner put in a claim under Section 278 of the Civil Procedure Code which has been disallowed. The lower Court's order is in the following terms: 'Upon a proper construction of the deeds of the 29th May 1887 (marked I and A), and under the circumstances of the case, I am of opinion that the claimant is in possession of the property in trust for the judgment-debtor for the payment of this debt, and that the claim cannot therefore be allowed.'
8. On the 15th of December last the petitioner applied for and obtained a rule from this Court upon the opposite side to show cause why the order of the Subordinate Judge should not be set aside. Notice, however, seems to have been issued not only to the decree-holder, but also to the judgment-debtor, who have appeared separately to show cause against the rule. The judgment-debtor, so far as appears upon the materials before us, had raised no question in the lower Court as to the claim of the petitioner, and she had no locus standi in this Court. But for the sake of convenience we have heard her Counsel as well as the learned pleader on behalf of the decree-holder. The main objection to the rule is that we ought not to interfere with the order of the Subordinate Judge disallowing the claim, as it was not made without jurisdiction.
9. Concurring, however, with the view expressed in Hamid Bakhut Mozumdar v. Buktear Chand Mahto I.L.R. 14 Cal. 617 I am clearly of opinion that the lower Court has acted illegally and with material irregularity in the exercise of its jurisdiction in directing execution to issue against the properties held by the petitioner under the deed of gift. When a claim is preferred under Section 278, what the Court has to see is whether the property, though standing in the name of the claimant or some other person, is in reality in the possession of the judgment-debtor or not. The mere fact that the judgment-debtor has some beneficial interest in the income of the property would not, in my opinion, render the property liable under Section 281. The words of Sections 279 and 280 to my mind leave no room for doubt. Section 279 runs thus: 'The claimant or objector must adduce evidence to show that at the date of the attachment he had some interest in, or was possessed of, the property attached.' And Section 280 declares: 'If upon the said investigation the Court is satisfied that, for the reason stated in the claim or objection, such property was not, when attached, in the possession of the judgment-debtor or of some person in trust for him or in the occupancy of a tenant or other person paying rent to him, or that, being in the possession of the judgment-debtor at such time, it was so in his possession, not on his own account or as his own property, but on account of or in trust for some other person, or partly on his own account and partly on account of some other person, the Court shall pass an order for releasing the property, wholly or to such extent as it thinks fit, from attachment.'
10. It seems clear, therefore, that when a claim is put forward under Section 278, and a claimant or objector satisfies the Court that he has some interest in, or is possessed of, the property attached, and it does not appear that the possession of the objector was in reality the judgment-debtor's, the claim must be allowed. In this particular case the question for determination is not whether the petitioner is liable to pay the mesne profits or not, under the covenants, contained in the deed of gift. The real question is whether the property is really in the possession or enjoyment of the judgment-debtor, though nominally conveyed to the petitioner. There is no doubt as to the fact that the petitioner is in possession in his own right, subject to the payment of the annuity and the costs.
11. In disallowing his claim the Subordinate Judge has allowed execution for the debt of one person against the property of another. I therefore concur with the learned Chief Justice in making the rule absolute.