R.P. Mookerjee, J.
1. This is an appeal on behalf of the plaintiff, and it arises out of a suit brought by him under Rule 63, Order 21, Civil P.C., and is directed against an order of dismissal of a claim preferred by him in certain execution proceedings.
2. To appreciate the points in issue, it will be necessary to refer to some of the circumstances under which the suit came to be filed.
3. One Gopal Chandra Sinha, father of the plaintiff who was in possession of extensive properties leaving a testamentary disposition. There executors were named by him. In 1931, the plff. Purna Chandra Singha filed a suit in the Original Side of this Court against his father's executors for various reliefs, including the administration of the estate left by Puma's mother, for recovery of certain properties belonging to the latter and some other reliefs. This suit was decreed in June 1933, allowing certain specific claims in favour of the plaintiff. Under the decree, further enquiries were to be made and certain accounts taken. The reference was continued before the Assistant Referee in the Original Side of this Court, and a report was in due course filed some time later. Exceptions were taken to the report as submitted, and after the hearing had proceeded, cerain terms of compromise were filed and a consent decree was passed. The exceptions which were pending before the Court were not pressed. The report by the Assistant Referee was confirmed. The executors defendants became entitled to get the costs of that suit, including the reference, from out of the estate of Gopal Chandra Singha. The plaintiff Purna was allowed to pay the costs out of the estate of his mother Madhabmohini.
4. In these litigations, the solicitor who acted for the plff. was the defendant in the present suit. The defendant is Sarojendra Kumar Dutta and he filed a bill of costs in respect of the costs incurred by him and also for remuneration due to him for the proceedings before the Assistant Referee. Objections had been taken, but ultimately the costs, as settled by the Court, were made payable. It is not necessary at this stage to refer to the various proceedings which were initiated by the solicitor for getting payment of the amount due. Ultimately, a suit was filed by the solicitor in respect of the amount due to him, and that suit was numbered 166 of 1945. That suit was decreed. The decree was transferred to the court of the Subordinate Judge at Alipore, and premises No. 99/1, Karaya Road, were attached as the personal property of Purna. It may be stated that the decree which was obtained by the solicitor against Purna was in his personal capacity as also as administrator to the estate of his mother. On such attachment being made, claim was put forward by Purna in his capacity as trustee. It was claimed that he had created a trust in respect of the property and it could not be attached as the personal property of his. This claim was dismissed by the executing Court on the finding that the property was in possession of Purna in his personal capacity and not qua trustee. The questions of title which had been raised during the hearing of the claim case by the decree holder were not gone into because of the scope of an enquiry under Order 21 Rule 58, Civil P.C.
5. It is after this decision that the plaintiff filed the present suit for declaration that the property in question belonged to the plaintiff in his capacity as trustee and was not his personal property. He also prayed for a permanent injunction for restraining the defendant from attaching or selling the property in execution of the decree passed by the High Court in the Original Side of this Court in Suit No. 166 of 1945 or in Money Execution Case No. 38 of 1947. It was stated in the plaint that this property originally belonged to the estate of the plaintiff's father Gopal Chandra Singha, and under the will, the plaintiff was entitled to a monthly allowance of Rs. 250/-; the executors had not paid the amount and a large arrear had accumulated. In lieu of his right to claim maintenance from his father's estate, the surviving executor, Dhirendra Nath Ghose had made over possession of 99/1 Karaya Road to Purna. It was maintained that he had been from that date in possession of the property as a trustee and the proceeds were being utilised for the purpose of the trust. After the creation of such trust, the premises had been requisitioned by the Government, and under an agreement entered into between Purna as trustee and the Government, compensation was being paid to him. The attachment which had been effected in execution case No. 38 of 1947 by the Subordinate Judge at Alipore, was therefore, illegal. Reliefs, as already stated, were therefore claimed in the present suit.
6. The defence, as raised, referred to some of the earlier history of the dispute between the plaintiff and the defendant, the solicitor. It was urged that the plaintiff had attempted to create a deed of trust, which was illusory and vague and was in effect a void transaction. Reference was made also in connection with such allegation that it was a colourable and fraudulent transaction intended to defraud the just claims of the creditors of Purna, including the defendant. It will be necessary hereafter to refer in greater detail to the character of this defence as an objection has been raised on behalf of the plaintiff-appellant about the scope of the present suit, and whether the defendant is entitled to raise a defence founded on Section 53, Transfer of Property Act. It was claimed that the defendant was entitled to treat the property as still being the property of Purna held personally and the attachment effected the executing Court had been legally and properly made.
7. Various issues were raised and the learned Subordinate Judge has dismissed the suit holding against the plaintiff in respect of the material Issues.
8. The first point which arises for decision is on objection raised by the defendant about the maintainability of the suit. It is pointed out that the property originally belonged to the estate of Gopal Chandra Sinha. A decree was obtained by Purna against the executors, and it was admitted that certain amount was due to Purna from the estate of Gopal. It was also admitted that maintenance at the rate of Rs. 250 /- per mensem was payable from out of the father's estate to Purna. In lieu of the total amount which became due to Purna, the surviving executor Dhirendra Nath Ghose put Purna in possession of 99/1 Karaya Road. The letter which was written by Dhirendra as executor to Purna is Ex. 3 in the case. The material portion of the letter was in the following terms:
'I also make over to you the premises No. 99/1 Karaya Road, on receipt of the sum Rs. 593/-in terms of my solicitor's letter of date to you in full settlement of your maintenance claim for Rs. 30,000/-. We also put it on record that the Estate's claim against you for the sum of Rs. 3648/- is also adjusted by the aforesaid arrangement and the Estate shall have no further claim in respect of the said claim........ As regards premises No. 99/1, Karaya Road, I shall execute a conveyance of the same in your name or in the name of your nominee at your expenses'.
9. It is an admitted fact that no conveyance was actually executed as it was covenanted by the executor in the last sentence quoted above. On behalf of the defendant, it is contended that the plaintiff is not entitled to maintain the present suit for a declaration of his title in respect of the property as the title had not passed from the executor to Purna. It will not be necessary for us to deal specifically and in detail with the legal implication of a defence of this nature and whether such a defence is at all well founded for the simple reason that the defendant himself has attached this particular property on the basis, that it is the personal property of the judgment-debtor. The plaintiff also purported to execute a deed of trust, referred to already, on the 28-9-1943, on the footing that title had passed from the executors in his favour when he was put in possession of the said property in pursuance of the letter from the executor, dated 24-3-1943 (Ext. 3). It is not permissible for the parties to blow hot and cold at the same time. When both the parties have proceeded on the footing that the property is the property of Purna, it is not necessary at this stage and in these proceedings to enter into a discussion on the legal effect and implication of the delivery of possession of the property in pursuance of the letter, dated 24-3-1943. This objection raised on behalf of the defendant must, therefore, be disallowed.
10. The next question which arises for consideration is whether the deed of trust purported to have been executed on 28-9-1943, was a real transaction or a sham transaction.
11. It is now well settled that if objection is raised founded on Section 53, Transfer of Property Act, such objection is distinct and separate from the defence referred to above. As it has been observed by Sir Lawrence Jenkins in -- 'Mina Kumari v. Bijoy Singh', 44 Ind. App. 72, (P.C.) to attract the provisions of Section 53, Transfer of Property Act. It must proceed on the footing that title has passed, but the document under which the title has passed is a voidable one. It is not open to a party to say that the provisions of section 53 are attracted as the document itself or the transaction was a sham one. The question whether Section 53, Transfer of Property Act, would be attracted in the present case or not, whether such a defence had actually been raised by the defendant, and even if raised, such defence was available to him or not, would be an alternative claim which would be considered at the proper place later on. At this stage all that we are required to consider is whether the transaction itself was a real one or not.
12. The suit out of which the present appeal arises is one under Rule 63, Order 21, Civil P.C. On the question whether the transaction was a real transaction or not the onus is upon the plaintiff to show that it was so.
13. We have therefore, to consider the evidence on the record to find out whether the plaintiff has discharged the onus which lies upon him.
14. Mr. Gupta appearing on behalf of the plaintiff appellant referred to certain circumstances under which he claimed that the real nature and character of the transaction became apparent. To show that the deed of trust was a real transfer from the individual to a trustee, it was pointed out (1) that this was an irrevocable trust without any possibility of the property reversing back to family of the trustor; (2) that although Purna had his wife and sons, the trustees to succeed him were not any one of them, but was the Official Trustee of Bengal (3) the purposes for which the trust had been created were such as others could enforce the provisions of the trust, if payments were not made to outsiders, as laid down in the deed of trust; and (4) that the property in question was taken in lieu of the right of maintenance which Purna had against his father's estate, if he did not want to make a real trust of the estate he would not have taken the property in lieu of the unattachable right of maintenance which he had.
15. As regards the irrevocable nature of the trust, as shown from the deed itself, there is not much force in it. That by itself will not be able to give any indication as to whether the trustor really intended the document to be a real one.
16. As regards the mentioning of the Official Trustee of Bengal as the next trustee, it is to be noticed that the requisites' under the Official Trustees Act were not duly followed. Under sections 7 and 8 of the Official Trustees Act, the Official Trustee is not entitled, in the first place, to accept any religious trust, and secondly, without the consent of the Official Trustee he cannot be appointed as a trustee, such consent being recited in the deed itself. There is no evidence on the record and no attempt was even made to suggest that the Official Trustee had even been consulted, far less his consent taken before he was mentioned as the succeeding trustee of the settlor. The mention of the Official Trustee, as it appears in the circumstances of the present case was merely an eye-wash for the purpose of drawing a picture which did not correctly answer or reproduce what the real intention of the settlor was.
17. About the purpose of the trust, it cannot be appreciated if and how, at least, so long as the settlor continues to be the sole trustee, that the terms of the trust can be enforced if the said settlor refuses or neglects to carry out the terms of the trust during the period of his management. So the particular objects which are mentioned in the deed of trust are such as they become well neigh impossible for an outsider, a member of the public, to call for accounts or to examine how the trust is being managed or whether the trust is being properly conducted or not. It is quite apparent from the manner in which the terms in the deed of trust are put that it is left to the absolute discretion of the sole trustee who happens to be the settlor himself to decide how the money is to be distributed and to whom and when and under what circumstances.
18. The other point urged in support of the trust being a real one need not engage our attention at this stage for long. That is an argument which has to be considered when the defence under Section 53, Transfer of Property Act, is considered. There is no suggestion that at the time when the property was taken along with other properties mentioned in the letter from the executor, already referred to, there was any intention of the settlor to create a trust at that stage. He was getting theproperty from the executors in lieu of moneys due to him from out of his father's estate, or for the matter of that, the property which belonged to his mother's estate, but had been in the possession of his father's executors. Possession was delivered to Purna in terms of the letter written by the executor on 24-3-1943. The deed of trust was executed on 28-9-1943. It will be a matter for consideration whether at the time when the property was taken, or when the deed of trust was executed, Purna was already cognisant of the heavy liability which had been incurred and which was claimed by the solicitor. The conduct of Purna in disposing of certain other properties which belonged to him will also be a matter for consideration along with the present one when we deal with the provisions of Section 53, Transfer of Property Act. It may be stated at this stage that the bill of costs had already been filed before the deed of trust was executed, and the ignorance which was feigned about the proceedings in the High Court for the realization of costs which were claimed against Purna has been found out not to be substantiated, and on the other hand, he has been found to have been cognisant of these proceedings and might have been preparing himself for the ultimate eventuality.
19. It is not necessary for us to consider the other points which have been referred to by the learned Subordinate Judge in connection with the enquiry as to the real nature of the transaction evidenced by the alleged deed of trust. Whether Purna was of a religious disposition or not, or whether he was giving charities to others from before the trust or not is not strictly relevant for the enquiry which is now before us.
20. Reference must, however, be made to the evidence which was led by the plaintiff with the help of account papers which had been maintained by him personally to show the disposal of the income from the alleged trust property. We may say at once that the accounts as produced are all in his handwriting and before the Court can reasonably rely upon such accounts, they should be supported by strong evidence adduced from other sources. An attempt was made in this direction by calling some of the persons who had received assistance from the trust estate as alleged by the plaintiff. Only two persons were examined amongst the many who had been called. One is plaintiff's witness No. 4 Sasibala Dey and the other is plaintiff's witness No. 7 Elekeshi Addy. It is not explained why some or other of the other alleged recipients were not called. The two persons who have been examined have also on some material points contradicted the plaintiff. Certain items of help alleged to have been given, according to one or other of the witnesses above-mentioned, do not find a place in the accounts as produced. On the other hand, supporting vouchers, whether of Calcutta or of Banaras, although admitted to be in the possession of the plaintiff are not produced. It is not necessary to go into a minute analysis of the evidence of these two witnesses to point out the inconsistencies and contradictions as disclosed in their deposition, the evidence of the plaintiff and the account papers. It may well be that the plaintiff used to help some or other person of the locality or outside, but the real question here is whether the income which was accruing from the alleged trust was not being appropriated by the plaintiff, but was being wholly utilised for the purpose of charitable and religious trust. The evidence led does not support that story.
21. As regards the performance of the Annapurna Puja, the evidence which has been led is not one of the priests who have actually officiated, but is of Bata Krishna Bhuttacharjya, plaintiff's witness No. 6, who had arranged for others to come as priest. It is neither possible for such a witness, nor such witness purported to state the actual amount spent for the Puja. He merely stated that from Rs. 200/- to Rs. 250/-was spent annually. It is not possible for such a witness to say about the sources from which the money was found.
22. About the real character of the transaction, reference has to be made to the conduct of the plaintiff in certain proceedings in the High Court. It appears that at different times, the purpose for which the property was held was being stated differently. No doubt when the agreement was executed with the Government for the purpose of getting compensation when the property was under requisition was signed by the plaintiff in his capacity as a trustee and not in his personal capacity. No separate banking account was shown to have been maintained or when heavy sums were being received from the land and hirings department for the requisitioned property, how and when they were kept does not appear from the evidence as led. But it appears that when in the course of the proceedings which the solicitor had initiated in the Original Side of the High Court this particular property was attached, an undertaking was given by the plaintiff that he would not deal with the property till the disposal of such proceedings. No claim was preferred at this stage as one would naturally think would have been the normal duty of a trustee when such an attachment was going to be effected. The conduct of the plaintiff on the present occasion in making a claim as soon as the property was attached by the Subordinate Judge at Alipore would be the natural conduct which one would expect of him when the selfsame property was attached for the same debt in another Court. On the other hand, an undertaking was given that the property would not be dealt with. Either he was misleading the Court in not bringing it to the notice of the Court and the other side that the property had passed out of his hand and was the subject of a trust, or the purpose for which the trust was alleged to have been created was not the real purpose, and the time was not thought opportune to bring to the notice of the Court the existence of such an alleged trust, it was so near the date of the alleged trust that it might have been possible to say, as it has been possible for the plaintiff to make an attempt in the present case which would not have been possible had it been made at the earlier stage. It is not possible for us and we are not going to speculate, but it remains an admitted fact that! an undertaking was given which has not been explained in the present case. It is apparent that the creation itself of the trust was concealed from the Court.
23. Reference may in this connection be made to certain letters sent by the lawyers on behalf of the plaintiff or the solicitor on certain occasions where the question about the right of the plaintiff in respect of this property was being dealt with. In exhibit D, a letter written by B. Mallick, pleader for the plaintiff to the Land Acquisition Collector on 20-2-1947, about 99 and 99/1 Karaya Road, both the properties were described to be the properties of Deity of Siva Thakur. Premises No. 99 Karaya Road was a property in which the title of the plaintiff as shebait was distinct and separate from the alleged title of the plaintiff as trustee under the alleged trust created by him. No attempt was made to differentiate the title of one from the other.
24. A few months later, on 1-10-1947, Messrs. Mukherjee and Biswas, Solicitors of the plaintiff were writing to the Land Acquisition Collector (Ext. D 2) that both the premises Nos. 99 and 99/1 Karaya Road were under requisition, but compensation was not being paid regularly, and the letter was being written by the Solicitors on behalf of Purna Chandra Singh, 'Shebait of Sri Sri Iswar Shiva Thakur, Hindu Deities situate respectively at No. 26A Puddapukur Road and at Benaras.'
25. On 27-9-1948, Messrs. Mukherjee and Biswas are sending another letter to the Land Acquisition Collector as solicitors of the plaintiff (Ext. D 1) giving notice that a suit would be filed for compensation. It is significant that with 99/1 Karaya Road is not mentioned 99 Karaya Road. The. description of the title is stated to be that Purna is suing as trustee to the estate of Sri Sri Bakshmi Janardan Jew situate at 25A, Puddapukur Road and of Benaras. A copy of the plaint is sent along with the letter purporting to be a notice under section 80, Civil P.C. The plaint was drawn up by an Advocate of this Court.
26. Purna when he was deposing during the claim proceedings in the Court of the Subordinate Judge at Alipore on 27-9-1948, the deposition being marked as Exhibit K in the present case, was confronted with these contradictory positions taken up by him or on his behalf at different stages. All that he couJd say was that it was not true that he had given instructions to his solicitors to write to the Land Acquisition Collector that he was the shebait in respect of 99/1 Karaya Road. He also had not given instructions to B. Mallick, to state as had been mentioned in his letter referred to above. It is significant that it was, however, stated by Purna before the Court, 'I did not also give instructions to Mr. B. C. Mallick, pleader to say that I was Shebait of premises No. 99/1 Karaya Road. When I got a copy of the notice under Section 80, Civil P.C., I at once asked the solicitors to rectify the mistake.'
No attempt was made in the present suit to call the records from the solicitors, Messrs. Mukherjee & Biswas to show what instructions had been given by the plaintiff or on his behalf, and how such a contradictory instruction could be given and why no assertion of the plaintiff's title as trustee was made at any stage during all these proceedings.
27. Mr. Gupta appearing on behalf of the plaintiff-appellant attempted to explain that this might have been a case of mistake but it is inconceivable how there can be successive mistake not of the same nature, but of different types and mistakes committed by lawyers and solicitors who can only be reasonably be expected to act on instructions received from the client. Unless there be any specific explanation as to how these things happened, the conclusion is irresistible that such contradictory positions had been taken up by Purna himself for reasons which it is not possible to define specifically at this stage. There is only one conclusion to which one is drawn, and that is that Purna was not serious when he executed the alleged deed of trust. It was a sham transaction, and it cannot be regarded as having any legal effect. We therefore agree with the learned Subordinate Judge with the conclusion reached on this point.
28. The conclusion reached by us is sufficient to dispose of the plaintiff's claim in the present suit, but in view of the grounds taken in the Lower Court and the arguments before us in this Court, we should also advert to the alternative prayer which had been made and the defence which had been raised by the defendant. This alternative defence is based upon Section 53, Transfer of Property Act.
29. Mr. Gupta on behalf of the plaintiff-appellant contends that this defence under Section 53, Transfer of Property Act, is not available to the defendant as such a defence had not been raised and in the form in which it ought to have been raised in the pleadings. Such a defence was not raised specifically in the Issues as well.
30. The defence is made in the following passage in paragraph 4 of the written statement:
'With reference to paragraphs 2 and 3 of the plaint this 'defendant denies that Puma Chandra Singha was or is of 'religious and charitable bent of mind'. His father did not bequeath any property to him as will appear from his Will inter alia because he had become an insolvent and had 'already wasted a great deal of money'. This defendant is not aware if any and what other personal income the said P.C. Singha has or had at the time of execution of the alleged Trust Deed and he puts the plaintiff to strict proof thereof. In fact shortly prior thereto the said Purna Chandra Singha in order to defraud and defeat the claims of the defendant sold at an undervalue the premises No. 25, Puddopukur Road and No. 14, Madhub Chatterjee Lane (which he got through the exertions and as a fruit of the labour and partly of the money of the defendant). This defendant states that the said Purna Chandra Singha had no right to create a trust of the said property and that the terms and objects of the alleged trust are illusory, vague and uncertain and impossible of performance at any rate after the death of the said Purna Chandra Singha and that the same was in respect of certain class of persons of Bhowanipur and not specifically of Bhowanipur as alleged. Further there has been ho transfer or assignment of the property in favour of the alleged trustee or his successor or any other person whatsoever and accordingly the trust is void and otherwise bad in law and cannot be carried out. This defendant further states that the alleged deed of trust is also inoperative in law inter alia because it is a colourable and fraudulent document intended to defraud the just claim of the creditors of the said Purna Chandra Singha including this defendant and was made after the said Purna Chandra Singha realised that in spite of his strenuous opposition a very large sum amounting to about Rs. 32000/- would be due by him as allowed on taxation in respect of the defendant's bill of costs of the reference in the said Suit No. 891 of 1931 which was lodged on the 22-12-1942, and notice was served on him.'
31. It is pointed out that what the defence was; that was not an alternative plea as distinct from the one dependant upon the nature of the transaction itself. It is not contested that the case as may be made by a party on the ground that the transaction is a void one is separate and distinct from the case that the transaction is hit by the provisions of Section 53, Transfer of Property Act. No doubt, the language used in para. 4 of the written statement and in Issues Nos. 2 to 4 as raised in the suit do clearly and specifically refer to the alternative defence as Was argued in the Lower Court and was also contended in this Court. It is quite apparent, however, that the parties were not misled by this jumbling of the two distinct and alternative issues and defence. Evidence was led by the plaintiff keeping in view the alternative defence based upon the provisions of Section 53, Transfer of Property Act.
32. In view of the nature of the evidence which was led by the plaintiff, this is not a case of the type which was criticised by Sir Lawrence Jenkins in 'Mina Kumari's case reported' in 44 Ind App. 72, (P.C.) already referred to. The Lower Court had no difficulty and we have no difficulty in coming to a definite conclusion as to what would be the decision on the application of Section 53, Transfer of Property Act. In our view, though the written statement was rather inartistic, full opportunity had been availed of and relevant evidence had been produced, by the plaintiff on the two distinct and separate defences. There will be no injustice done if such definite and alternative defences are considered and a decision, reached.
33. The next question, therefore, which arises for our consideration is on the footing that even, if the deed of trust was a real and valid transfer at the time when the document was executed, can it be avoided and if so, has it been avoided, by the defendant as being one intended to defraud the just claims of the creditor of Purna?
34. In this connection it was argued on behalf of the plaintiff appellant that it was not competent for the defendant to raise this defence in this suit as framed. It is urged that whatever might have been the legal position under Section 53, Transfer of Property Act, before the amendment of 1929, such a defence can be raised only in a suit which is binding on all creditors as being a representative suit. The contention of Mr. Gupta was further that even under Section 53 as it stood before the amendment of 1929, the earlier view expressed in -- 'Subramania Aiyar v. Muthia Chettiar,' 41 Mad 612 (PB) which was subsequently overruled by a subsequent Full Bench of the same Court in -- 'Ramaswami Chettiar v. Mallappa Reddiar', 43 Mad 760 (FB), was the correct view.
35. Under Section 53, Transfer of Property Act, as it stood before the amendment, there was some difference of opinion in some of the Courts as to whether a suit brought by a creditor to avoid the transfer on the ground that the intention was to defeat or delay the creditors or the transferees. Such a suit was to be one so framed as to be a representative one so as to bind all the creditors. With the exception of the case --'Subramania Aiyar v. Muthia Chettiar', 41 Mad 612 (FB) all the Courts were unanimous that if in a proceeding started by the debtor a defence was raised by a creditor that the claim made by the debtor or transferee from the same based upon a particular transaction which was being questioned as being hit by Section 53, Transfer of Property Act, such a defence was not barred by the suit was not a representative one. This view had been expressed by this Court also in --'Abdul Kader v. Ali Meah', 15 Cal LJ 649. Reference may also be made to an earlier decision in -- 'Ram Chand v. Mathura Chand', 19 All LJ 299. In two of the earlier decisions of this Court, a plea under Section 53, Transfer of Property Act, was allowed to be raised without objection by way of defence. Vide -- 'Ishan Chunder v. Bishu Sardar', 24 Cal 825, and -- 'Rajani Kumar v. Gaur Kishore', 34 Cal 1051.
36. It is not necessary for us to proceed further with the discussion as to what the law was or should have been under Section 53, Transfer of Property Act, as it stood before the amendment of 1929.
37. Mr. Gupta on behalf of the plaintiff appellant contends that the amendment as introduced in 1929 has by implication made a change in the then existing law. Reliance is placed upon the 4th para, of Sub-section (1) of Section 53 of the Transfer of Property Act as it now stands. It is in the following terms:
'A suit instituted by a creditor (which term includes a decree holder) whether he has or hasnot applied for execution of his decree) to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor, shall be instituted on behalf of, or for the benefit of, all the creditors'.
It is apparent that the only kind of suit referred to in this paragraph is a suit which is instituted by a creditor. No reference is made to a suit by a debtor or a transferee from the debtor. It may be for obvious reasons that in the principle which was made clear in the remodelled section in 1929 no reference was made to a suit by a debtor or a transferee from him. If one of the many creditors brings a suit for declaration that he is entitled to proceed against particular property belonging to tne debtor so that he may realise his dues from that particular property. Similar suits and successive ones may be brought by other different creditors of the same debtor in different Courts. Such suits would not only be harassing ones, but would be unnecessary ones as the question whether creditors of a particular person are entitled to proceed against specific property as being the property of that debtor should be decided one for all and not by successive decisions which may be contradictory ones by different Courts. The harassment of the debtor should also be minimised.
38. The position is not such in the case of a suit by a debtor or a transferee from a debtor in respect of the particular property for a declaration of his title which may be in possession or the title of which is being questioned by another person.
39. Let us take the specifiic facts of the present case. The creditor has proceeded against a particular property on the footing that that property is his debtor's property. A claim is put forward by the debtor or his assignee, and the claim is dismissed. On behalf of the debtor a suit is filed not for a declaration that this particular property cannot be attached for a particular debt. The other creditors may or may not find it necessary to proceed against this property. There may or may not be other creditors, and if a debtor's suit is to be made maintainable only if such a suit is constituted as a representative one that would be dragging to the Court all the different creditors who may or may not be interested in that particular property which is under attachment. As it has been held and has been the accepted rule of law in the different Courts, a decision in such a suit is not res judicata in subsequent suits so far as the decision about the attachability of that particular property is concerned.
40. In this connection reliance was placed on behalf of the plaintiff appellant on -- 'Chutterput Singh v. Maharaj Bahadoor Singh', 32 Ind App 1 (PC) & on a certain expression of opinion appearing at page 15. It was contended that an Issue whether transfers were or were not liable to be set aside at the instance of a transferee from the debtor could be raised. Their Lordships observed:
'Such an issue could be raised and such a decree could be made only in a suit properly constituted for that purpose, and this suit was not so constituted either as to parties or otherwise.'
Emphasis was laid on the word 'only' used by Lord Davey in the sentence quoted above. One material fact on which that observation was made by the Judicial Committee was however overlooked. Pew of the relevant facts need only be stated to point out that the sentence could not be interpreted to mean that no suit could be brought by a debtor or a transferee from a debtor and that no defence under Section 53 Transfer of Property Act, could be raised in such a suit as such a suit was not a representative one.
41. Some of the properties in that case had been mortgaged to certain persons. A second mortgage was created on his own behalf by one of the mortgagors and on behalf of the other mortgagor to one Luchmiput. A third mortgage by the same to Lachmiput was made, out of the consideration of which the second mortgage was paid off. Lachmiput was also a transferee of the mortgages from the first mortgagee. The appellant claimed his title from Lachmiput. The respondents before the Judicial Committee claimed under a subsequent mortgage to one Dhunput, executed by the same mortgagor who had been a party to each one of the three mortgages and as executor of the other mortgagor. A suit was brought by Dhunput and his son against Chutterput and the heirs of Lachmiput. The plaint narrated many other matters -- a purchase by Dhunput at sales in execution of certain decrees which alleged that Lachmiput was a prior mortgagee to some of the properties included in the mortgage in favour of Dhunput. In the plaint declaration was prayed for of title to all the properties in suit and as to the property included in Lachmiput's prior mortgage, if the Court considered that the defendant could reap the benefit of the prior mortgage, then for accounts and for foreclosure. Further, in the suit, which went up to the Judicial Committee all the necessary parties were not impleaded, and it was not possible for the Court to pass an effective decree making a declaration as prayed for and that in the absence of such necessary parties. The Judicial Committee on that account came to the conclusion that the suit as constituted was not one where such a plea could be taken, and therefore, made the observation on which reliance was placed by Mr. Gupta that such an Issue could have been raised and a decree giving that relief could have been possible only if the suit had been properly constituted for that purpose. That observation cannot be taken to be a general one, and applicable to facts different from the facts of that case. That is not an authority for the very broad proposition for which reliance was placed by Mr. Gupta.
42. Reference may in this connection be made as to the interpretation of this decision of the Judicial Committee to -- 'Hakim Lal v. Mooshahar Sahu', 34 Cal 999 and to the observation of this Court appearing at pages 1006 and 1007. It was thus observed by this Court giving reference to the sentence on which reliance has been placed by the appellant before us.
'Their Lordships held that an issue upon such a question could be raised, and a decree could be made only in a suit properly constituted for the purpose, & that the suit as framed, 'which was between the purchaser on the one hand and one only of the creditors on the other was not so constituted either as to parties or otherwise. This view, it may be observed, is in harmony with what has been regarded as the settled rule in England, where it has been held that if the settlor is alive and not a bankrupt at the time the action is brought to set aside a conveyance on the ground that it was voidable under Statute 13 Elizabeth Chap. 5, it should be by a creditor or creditors on behalf of himself or themselves and all other creditors of the settlor; see -- 'Reese River Silver Mining Co. v. Atwell', (1869) 7 Eq. 347; see also --'White and Tudor's Leading Cases on Equity', 7th Edition, Vol. II, P. 822. The rule appears to us to be based upon a perfectly sound and intelligible principle. To allow one creditor to impeach the validity of a conveyance would expose the transferee to separate attacks by different creditors, each of whom might litigate the same question in a different suit, and it is not inconceivable that the Court might arrive at different conclusion in different suits brought at the instance of deferent creditors.'
43. The question whether the amendments made in 1929 have in any way affected the law was considered by this Court in -- 'Jagat Kishore v. Kula Kamini Dassya', 72 Cal L. J. 420 where a Division Bench of this Court, though without going into detail into the question of the principle involved, accepted the present law to be the same as before the amendment.
44. Reference may in this connection be also made to the decisions of some of the other High Courts where a consistent view as stated above has been repeatedly taken. Vide -- 'Hakimbu Bai v. Dayabnai', 41 Bom L. Rule 1104; -- 'Lallu Singh v. Chander Sen', 58 All 624(P.B.).
45. What is necessary is that there must be unequivocal declaration of intention to avoid the attachment by a creditor. Such declaration is an exercise of option to avoid the transfer.
46. We, therefore, hold that it is open to the defendant to raise by way of defence a plea under Section 53, Transfer of Property Act. Such a plea had been taken; an attempt had been made by the plaintiff, and according to the learned Subordinate Judge, unsuccessfully.
47. As we have indicated already that in view of our decision on the earlier question about the real character of the transaction, a decision on this point is not called for, but if we were to answer, we would have no difficulty in agreeing with the learned Subordinate Judge that had the transaction been a real and valid transaction at the time when it was entered into, that transaction can be avoided by the creditor on the ground that this was for the purpose of delaying and defeating creditors. We do not think it necessary to refer to the facts to which reliance has already been made in connection with the first point. There are other materials also to which reference has been made by the learned Subordinate Judge, and we agree with the conclusion reached by him.
48. All the points raised on behalf of the appellant fail and this appeal is dismissed with costs.
K.C. Chunder, J.
49. I agree.