1. The facts of the cases which gave rise to these appeals may be stated shortly as follows:
2. One Durga Charan Mookherjee died in 1898, leaving his son Madhu Sudhan an infant. Bistoo Charan brother of Durga Charan was appointed guardian under Act VIII of 1890 in respect of the properties of the minor on the 20th February 1900 and one Sarat Chandra Ray and three others' executed a security bond on the 13th June 1900 as sureties for Bistoo Charan. The order appointing Bistoo Charan as guardian was, however, set aside on appeal by the High Court on the 28th January 1902, and on the 23rd August 1904, one Rajani Kanta was appointed administrator of the estate. On the 27th January 1905, he brought a suit for accounts for the period of Bistoo Charan's management claiming Rs. 12,000 and odd and the sureties Sarat Chandra Ray and others were made defendants along with Bistoo Charan, After filing the suit application was made for attachment before judgment of the properties of Sarat Chandra, and on the 28th April 1905 conditional order for attachment was passed and the order was served OM the 9th May 1905. On the 19th May 1905, objection to attachment was made by Bistoo Charan and on the same day Sarat Chandra filed an affidavit stating that he was not going, to alienate any property. On the 22nd May 1905, the conditional order for attachment was withdrawn. On the 12th January 1906, a fresh order for attachment before judgment was issued and served between the 19th and the 25th February 1906. A preliminary decree for accounts was passed on the 9th February 1906, and a final decree was passed on the 16th March 1909 for Rs. 10,867-8-4 in favour of Aftabuddin who had succeeded Rajani Kanta as administrator of the estate against Bistoo Charan and Sarat Chandra and the other sureties. While the said suit; was pending Sarat Chandra executed six conveyances in favour of certain: persons in respect of some of his properties. Two: of these were executed in favour of Basanta Kumar Mukerjee, one dated the 29th September 1905 and the other dated the 25th December 1905. Two others were exgeuted in favour of one Dewan Das, one of which dated the 31st December 1905 was in his own name and the other dated the 25th February 1906 in the name of his son Gour Das. Another Kobala dated the 14th February 1906 was; executed in favour of one Shamsere Ally, and lastly there was a Kobala in favour of one Nanda Kumar on the 25th February 1906. After the final decree was passed in the account suit, the decree-holder applied for execution of the decree against Sarat Chandra and attached his properties. Thereupon Basanta Kumar Mookherjee and the other purchasers preferred claims to the propertiea attached on the strength of the Kobalas executed in their favour. The claims of Shamsere Ally, Gour Das and Nanda Kumar were disallowed, but the claims of Basanta Kumar and Dewan Das were allowed on the 31st January 1910.
3. The decree-holder; thereupon brought a suit No; 160 of 1910 for a declaration that the purchase by Basanta Kumar was fraudulent, collusive and benami and that no title passed to him under the Kobalas. The suit was dismissed by the Court below and appeal No. 86 of 1911 has been preferred in that suit, A similar suit brought against Dewan Das (Suit No. 161 of 1910) waa also dismissed and Appeal1 No. 269 of 1911 is against the decision in that suit. The suit (No. 53 of 1910) brought by Shamsere Ally was decreed, and Appeal No. 268 of 1911 arises out of that suit. The suit brought by Nanda Kumar was dismissed and no appeal has been preferred by him. The suit by Dewan Das upon the Kobala in the name of Gour Das (Suit No. 53 of 1911) was also dismissed by the Court below and Second Appeal No. 2918 arises from that suit: We will first deal with Appeal No. 86 of 1911 which arises1 out of Suit No. 160 of 1910, in which Basanta Kumar Mookberjee is the contesting defendant. It appears that the most: valuable of the properties belonging to Sarat Chandra was a share in a big estate called Jugdia Estate, which was in the hands of one Hem Chandra Das as Sadar Malgnzar, the proprietors getting their respective Malikanas from him. Sarat Chandra had 13-gundas 1-cowri 2-kags share at the time of the transactions we are dealing with in that estate. Hem Chandra Das had a Katohari at Char Parbati in that estate and Sarat Chandra served as Naib (principal officer) in the Katohary under Hem Chandra. Basanta Kumar as already stated purchased by two Kobalas dated the 29th September 1905 and 25th December 1905 respectively some shares of the Jugdia Estate from Sarat Chandra. By the first Kobala he purchased a 1-gunda 2 karas 1-krant, 1 1/2 dantis share, and by the second a 5-gunda share. Basanta Kumar is a Pleader, practising at Feni. He acted as a Pleader for Durga Charan Mukherjee so long; as he was alive and afterwards for the administrator of his infant son's estate, i.e., the decree holder. His lodging and that of Durga Charan were in the same compound with only a fencing between them. He was cited as a witness in the suit for accounts against Bistoo, Sarat and others, and the summons was served personally upon him on the 3rd July 1905 and he was examined as a witness in that case. In his deposition in the present case he at first stated that he could not say whether he knew about the account suit before the date of his conveyances. But when the bills of his travelling and other expenses which he had submitted to the Court in the account suit were shown to him, he had to admit tlfat he knew of the suit before the execution of the Kobalas. It appears from the evidence of Hem Chandra that he, Sarat Chandra and Basanta Kumar gave evidence in the account suit at the same time and Kajani Mohan Bay, who was formerly the administrator of the estate of Dnrga Charan, swears that he told Basanta Kumar about the attachment before and after the first attachment and before and after the second attachment. The Kobalas in favour of Basanta Kumar and the other purchasers were all executed at the Parbati Char Katohari of Hem Chandra, the Sadar Malguzar of the Jugdia Estate. The first attachment was served at Char Parbati on the 18th May 1905, and the second on the 19th January 1906. There can be no doubt that Hem Chandra was fully aware of the attachment. He denied knowledge of the attachment in his deposition in the present case, but in his deposition in the claim case on the llth December 1909 he stated that Le heard of the first attachment and that it had been subsequently withdrawn on the objection of Sarat Chandra. Sarat Chandra was then serving under him as a Naib in the Jugdia Estate in the Char Paroatia Kutchari. The Court below observes: 'It is quite clear from the deposition of Hem Chandra Das that he knew about the attachment and Basanta Kumar made enquiries from him. Hem Chandra and Basanta Kumar are friendly. It is highly improbable that he would conceal the fact of attachment from him. Moreover he is a Pleader and was a witness in the suit on behalf of the administrator and appeared in Court on many dates. It is very probable that he should know it. Rajani Roy, the previous administrator, affirms that Basanta Kumar was told everything. He is no administrator now and has no concern with the estate or the present administrator or the owners and so I see no reason to disbelieve him. I, therefore, find that Basanta Kumar was aware of the attachment, and the attempt of Sarat to sell properties to avoid the liability.' We entirely agree with this finding of the Court below, and we have no doubt that Basanta Kumar was perfectly aware of the attachment and of Sarat's intention to dispose of his properties, to avoid liability under the decree which might be passed in the account suit, before he took the conveyances from Sarat. The next question is whether any consideration was paid by Basanta Kumar for the Kobalas. The first Kobala was for Rs. 1,365, and the second for Rs. 4,520. Hem Chandra and the attesting witnesses have deposed to the passing of the consideration and Basanta Kumar also deposes to the payment of consideration of the second Kobala. The attesting witnesses, however, are all the servants or relations of Hem Chandra. Basanta Kumar is a Pleader, he has money-lending business and landed properties, He has accounts, but he says that he has no I account books to show the payment of the consideration of the Kobalas. Hem Chandra says that out of the consideration for the first Kobala in favour of Basanta Kumar certain debts which Sarat Chandra owed to certain ladies of his (Hem Chandra's) family were paid off. These loans are said to have been advanced to Sarat Chandra on behalf of the ladies by Hem Chandra on bonds, but he cannot say whether the bonds were registered or were unregistered or whether they were mortgage bonds. Hem Chandra has produced certain accounts to show the re-payment of the debts by Sarat Chandra. They are loose sheets of paper stitched together, and having regard to the evidence we do not think that it has been satisfactorily proved that Sarat Chandra really owed any debts to the ladies of Hem Chandra's family or that they were paid off out of the consideration money of the Srst Kobala. At the same time we are unable to hold that the Kobalas were benami. Hem Chandra, under whom Sarat Chandra was serving as a Naib, was helping him as much as he could and Basanta Kumar was the friend and Pleader of Hem Chandra, but we do not think it likely that he would act as the benamdar of Sarat Chandra or hold the property for him, when he obtained no benefit from such a transaction. He had already purchased a share in the Jugdia Estate, which appears to be a very valuable one, and he would naturally be desirous of acquiring further shares in that estate. He had undoubtedly the means to purchase the share. There is evidence that since his purchase from Sarat Chandra he got his name registered in respect of the shares and received the Malikana of the shares purchased from Hem Chandra, the Sadar Malguzar. We do not think having regard to all the circumstances that Basanta Kumar purchased the property from Sarat Chandra benaaii or held it for his benefit. Basanta Kumar, however, is a Pleader and a man of business, and it is not likely that with fall knowledge of ihe suit which was pending at the time, the attachments before judgments and the sure prospect of litigation which a purchaser from Sarat Chandra, would have to enter into in the event of a decree being passed against Sarat Chandra, should have paid the full value of the property which the consideration stated in the Kobalas represents. But if the Kobala were not benami and if Basanta Kumar paid some consideration it is idle to speculate how much he actually paid, and we must hold that the Kobalas were not without consideration. The transfers by Sarat Chandra, however, were made with intent to defeat or delay his creditor, the plaintiff, and the Court below has also come to the same conclusion. The only question, therefore, is whether Basanta Kumar was a transferee in good faith. The learned Subordinate Judge observes: 'it cannot, however, be conceived for a moment that Basanta Kumar intended to help Sarat in his fraudulent conduct. It appears from the evidence on the side of the administrator that Basanta Kumar was a well wisher of the estate of Durga Charan and had intimacy with him and his widow. Under such circumstances, it is highly improbable that he should help Sarat. It seems that he purchased for his own benefit without any thought of helping or injuring any one. The question is whether under these circumstance he is to be held as acting mala fide. The law has been elaborately discussed in the decisions reported as Hakim Lal v. Mooshahar Sahu (l) and Ishan Chunder Das Sarkar v. Bishu Sirdar ('2). Going carefully through these decisions I think the purchase of Basanta Kumar cannot be said to be mala fide merely because the result has been to defeat the creditor. We are unable to agree with the Court below on the point. There is no doubt that the transfers made by Sarat were fraudulent. They were made with intent to defeat or delay the plaintiff in the event of his obtaining a decree against him. When the first order for attachment before judgment of his properties was served, Sarat Chandra on the 19th May 1905 stated in his affidavit that he was not attempting to transfer any properties and the Court in rejecting the application for attachment on the 22nd May 1905 to a certain extent relied upon the said affidavit, The transfer made by Sarat Chandra in favour of Basanta Kumar on the 22nd September 1905 was certainly fraudulent and if the latter, with full knowledge of the fraudulent intention, obtained the conveyance, we fail to see how he can be said to have acted bona fide. The mere fact that the transfer was not a cloak for the benefit of the debtor or that it was for adequate consideration does not necessarily ahow that it was made in good faith. A mere knowledge of an impending decree or execution against the transferor is not sufficient to make the transferee a transferee otherwise then in good faith, when he does not share the intention of the transferor to defeat or delay his creditors. But as observed in the case of Ishan Chunder Das Sarkar v. Bishu Sirdar 24 C. 825 : I.C.W.N. 665 : 12 Ind. Dec. (N.S.) 1217 'indeed it would almost be a contradiction in terms to say that a transferee for value, who takes the transfer with the intention of helping the transferor to convert his immoveable property into money which can easily be concealed, and thus to defeat or delay his creditors, should nevertheless be treated as transferee in good faith, and the transfer to him should be upheld, though Section 53 says that a transfer made with such intention is voidable at the option of the creditors. Where the tranferee is a creditor of the transferor and accepts the transfer in satisfaction of the debt due to him, though with the knowledge that his so doing has the effect of defeating other creditors of the transferor, the transfer may come within the last paragraph of Section 53 of the Transfer of Property Act In Cadogan v. Kennett (1776) 2 Cowper 482 : 98 R.R.1171 Lord Mansfield said: 'if the transaction be not bona fide, the circumstance of its being done for a valuable consideration, will hot alone take it out of the Statute. I have known several cases where persons have given a fair and full price for goods, and where the possession was actually changed; yet being done for the purpose of defeating creditors, the transaction has been held fraudulent, and, therefore, void.' The authorities on the point were elaborately discussed in the case of Hakim Lal v. Mooshahur Sahu 34 C. 999 : 11 C.W.N. 889 : 6 C.L.J. 410 and we agree with the view taken by the learned Judges as to the result of the authorities. In that particular case, the transfer impeached as fraudulent was made in favour of a creditor and there was adequate consideration for the transfer, and it was accordingly held that the transfer was not invalid. 'The Judicial Committee in affirming the decision of this Court observed : 'The transfer which defeats or delays creditors is not an instrument which prefers one creditor to another, but an instrument which removes property from the creditors to the benefit of the debtor. The debtor must not retain a benefit for himself. He may pay one creditor and leave another unpaid.' Their Lordships were dealing with a case where the transfer was in favour of a creditor.
4. In the present case, Basanta Kumar was not a creditor and he had full knowledge of the fraudulent intention of the transfer. Under the circumstances the transfer is void as against the plaintiff even if Basanta Kumar had paid full value for the property purchased by him.
5. It is said that the first conveyance was executed in favour of Basanta Kumar for payment of certain debts which Sarat owed to certain ladies of Hem Chandra's family. We have referred to the evidence on the point, and have expressed our opinion that the existence of the debts or the payment thereof by Sarat out of the consideration of the said Kobala was not satisfactorily proved. But assuming that there were some debts and that a portion of the consideration money paid by Basanta Kumar was applied in payment of such debts, we do not think that the transfer is for that reason valid. We fully agree with the observations quoted from Lockrain v. Rastan (1899) 9 North Dakots 434 : 81 N.W. 60 in the case of Hakim Lal v. Mooshahar Sahu 34 C. 999 : 11 C.W.N. 889 : 6 C.L.J. 410 referred to above and which run as follows: 'A person who purchases for a present consideration is in every sense a volunteer; he has nothing at stake, no self-interest to serve: he may with perfect safety keep out of the transaction. Having no motive of interest prompting him to enter into it, if yet he does enter, knowing the fraudulent purpose of the grantor, the law very properly says he enters into it for the purpose of aiding that fraudulent purpose. Not so with him who takes the property in satisfaction of a pre.existing indebtedness, he has an interest to serve: he can keep out of the transaction only at the risk of losing his claim. The law throws upon him no duty of protecting other creditors. He has the same right to accept volun tary preference that he has to obtain a preference by superior diligence; he may know the fraudulent purpose of the grantor, but the law sees that he has a purpose of his own to serve and if he gees no further than is necessary to serve that purpose, the law will not charge him with fraud by reason of such knowledge.'
6. So far as the second conveyance is concerned, there is no evidence that any creditor was paid off with the consideration for the said conveyance. Hem Chandra says that Sarat sold his property in order to raise money for a business in rice. If that is so, he converted his immove-able property into money, so that the creditor might be defeated. Under the circumstances we think the transfers in favour of Basanta Kumar are void against the plaintiff.
7. It is contended, however, on behalf of Basanta Kumar that this is not a suit under Section 53 of the Transfer of Property Act on behalf of the creditors to set aside a fraudulent conveyance, that the issues which arise in suoh a suit were not raised and evidence, was not gone into on such issues, and that the plaintiff having challenged the conveyances as benami and without consideration and having failed to prove the same, the suit should be dismissed. There is no evidence that there are any creditors of Sarat other than the plaintiff, the suit, therefore, is not open to the objection that it was not brought on behalf of all the creditors.
8. It is true that the suit was based upon the grounds that the conveyances were benami and without consideration, and evidence was adduced in support of that case. The questions of benami and fraud appear to have been mixed up in the plaint and the evidence, but there are distinct allegations in the plaint that Sarat Chandra, with intent to frustrate the decree and with the help of Hem Chandra, created the false and fraudulent conveyances.
9. Basanta Kumar in his defence set up that he was a bona fide purchaser for value without notice of the attachment. The 4th issue raised in the case was: Is the defendant No. 1a benamidar for defendant No. 2 and is the Kobala set up by the defendant No. 1a fraudulent and collusive document P' And the learned Subordinate Judge discussed the question whether Basanta Kumar purchased in good faith. After referring to the authorities relating to fraudulent conveyances, he observes: 'Going carefully through these decisions I think the purchase of Basanta Kumar cannot be said to be mala fide merely because the result has been to defeat the creditor. In this connection it is to be noted that in the plaint against Basanta Kumar the plaintiff did not want to avoid the sale because of the bad faith of Basanta Kumar. His purchase was impeached as benami. Had the plaintiff based his case on an intention to defraud, the defendant could have been able to prove that the property which Sarat had even after the sale to him, was sufficient to meet any claim of the administrator.'
10. It appears, therefore, that although there were allegations to the effect that the Kbbalas were fraudulent and were executed in order to defeat the claim of the plaintiff they were mixed up with the question of benami, and the attention of the parties was not directed to the points arising in a suit under Section 53 of the Transfer of Proparty Act, and evidence was not adduced on all such points.
11. In these circumstances, we think that for the ends of justice the case should be remanded for an enquiry into the assets of Sarat Chandra at the time of the sales to Basanta Kumar, and whether they were sufficient to meet the claim of the administrator in the account suit then pending. If the Court finds that they were not sufficient, the conveyance in favour of Basanta Kumar will be declared void as against the plaintiff. If, on the other land, Sarat had sufficient properties at the time to meet the claim of the plaintiff, the suit will be dismissed. Costs will abide the result.
12. In Appeal No. 268 of 1911.
13. This appeal arises out of the suit (No. 53 of 1910) brought by Shamsere Ally who was unsuccessful in the claim case. He purchased 2 1/2 gandas of the Jugdia estate by a Kobala dated the 14th February 1906. The purchase, therefore, was after the second attachment was applied for and before it was effected (between 19fch to the 25th February 1906). Shamsere was already the owner of another 2 1/2 andas share, and appears to be a substantial landowner and shopkeeper. The consideration started in the Kobala is Rs. 2,160. There is evidence to show that the consideration passed and there are entries in his jama khcurach book showing payment of Rs. 2,160 as consideration besides other expenses for stamp and registration, etc., of the Kobala.
14. The Court in the claim case was of opinion that the jama khurch was not 'above suspicion,' but we do not see sufficient reason for rejecting the book as unreliable receipts have been produced to show that he received Malikana for the years 1313 to 1316. The account book of 1312, which was produced to show payment of consideration, could not contain entries relating to reciepts of Malikana of that year, as the Kobala was executed at almost the end of the year (Falgoon), although the fact that the books of the years 1313 to 1316 were not produced is open to comment. The only evidence to show that the Kobala was benami is that of Aftabuddin and Basiruddin. The first merely says that he 'heard' from many people that the Kobalas were without consideration, and the statement of Basir-nd-din (who is also one of the sureties) that Sarat told him about the benami nature of the transaction cannot be relied upon. Shamsere, it is true, admits that he did not make any enquiry about the property, but he was a co-sharer in the property, though the fact that he did not enquire whether the property purchased by him was 'under any debt or not' is suspicions. Having regard, however, to the facts that he already had a share in the estate and had the means to purchase the 2 1/2 gundas in question, the evidence as to payment of consideration may be accepted.
15. Shamsere holds jamas in the Jugdia Estate of which Hem Chandra is the Sadar Malguzar and is the 'master of giving or refusing settlements' as the witness Abdul Majid says. The Kobala was executed in Hem Chandra's Katohari where Sarat used to serve as Naib, and Shamsere resided at Char Chandia within the Jugdia estate. Basanta Kumar sometimes acted as his Pleader. But there is no direct evidence to show that Shamaere was aware of the auit against Sarator of the attachments before judgment or that he purchased with knowledge of the fraudulent intention of Sarat in disposing of his properties, although all the circumstances raise a suspicion that he was aware of the faots. In the absence of the evidence, however, the Court cannot act upon mere suspicion, and under the circumstances we are unable to differ from the Court below or to hold that the purchase was not bona fide. This appeal accordingly will be dismissed, but in the circumstances we direct that eaah party do bear its own costs.
16. In Appeal No. 269 of 1911.
17. This appeal arises out of the suit,(No.161) brought by Aftabuddin against Dewan Das, whose claim was allowed in the claim case. 'The suit relates to 1-gunda share of Jugdia Estate purchased from Saoat Chandra by Dewan Das, on the 31st December 1905, for Rs. 1,295. Dewan Das is said to be more than a hundred years old: his son Gour Das, looks after his properties. Gour Das and a witness Nalini Kumar have been examined to prove the payment of the consideration. No jama khurach has been produced, but Gour Das says that they have no jama khuraoh The Malikana receipts have, however, been produced [Exhibits B 11 (l) to B 11 (4)]. The case bears a general resemblance to the case of Shamsere Ally. The Kobala was executed' at the Katchary of Hem Chandra and the witnesses to it were the amlas of Hem Chandra. Dewan Das already had a 12f gundas share in the estate. His son Gour Das admits that Sarat told him about his debts, but he did not enquire into the particulars. Dewan Das lives at Char Chandia within the Jugdia estate, and appears to be a substantial man. The only evidence as to the Kobala being a benami transaction is that of Aftabuddin or Basiruddin and the observations we have made with respect to them in the case of Shamsere Ally apply to this case also.' There is no direct evidence to show that Dewan Das or his son Gour was aware of the sait against Sarat or the attachments or that they had knowledge of the fraudulent intention of Sarat in disposing of his properties, although as in the case of Shamsere a suspicion arises that they were aware of the facts. Under the circumstances, we must dismiss this appeal also, each party to bear his own costs.
18. In Second Appeal No. 2918 of 1913.
19. We now come to the second appeal preferred by Dewan Das which arises out of suit (No. 53 of 1911) brought by him for declaration of his right to 1-gunda 3-karas share of the Jugdia Estate which was purchased by him in the name of his son Gour Das by a Kobala dated the 26th February 1906, that being the last Kobala by which Sarat Chandra sold away his share in the Jugdia Estate. The suit was tried by 'another Subordinate Judge and he came to the conclusion that the evidence regarding the passing of the consideration was vary doubtful but that even supposing that the amount was actually paid to Sarat, 'there could be no doubt that the object of the Kobala was to convert the property out of the reach of the decree expected to be passed in the aosount suit,' and that the plaintiff had full knowledge of the fraudulent intention of Sarat. The suit accordingly was dismissed by the Court of first instance. On appeal the learned District Judge affirmed the decree of the first Court. The learned Judge says: 'The evidence as to the passing of the consideration was held to be unsatisfactory by the lower Court. I do not differ from the lower Court on this point. It may or may not be true. But I cannot believe that the plaintiff or rather his son Gour had no knowledge of the proceedings against Sarat.' Then after making certain other observations he states his conclusion thus: 'But no unquestionable evidence is forthcoming to prove the passing of consideration and the Courts must presume the facts to be according to the common course of natural events and that Gour had knowledge of Sarat's motive in disposing of his property.' The finding that the consideration for the Kobala was not proved by unimpeachable evidence is a finding of fact and is binding upon us in second appeal.
20. It is true that we have in appeal No. 269 upheld the first Kobala of Dewan Das on the ground that there was no direct evidence that he had knowledge of the attachments or the fraudulent intention of Sarat. But that Kobala was executed on the 31st December 1905 and the Kobala in the present case was executed on the 26th February 1906. It was the last Kobala by which Sarat disposed of his share in Tngdia Estate, and it is so recited in the Kobala itself.
21. It may at first sight seem anomalous that the same person (Gour Das) who obtained both the conveyances should be held to have had knowledge of the fraudulent intention of the trunsferor in the one case and not in the other, though the circumstances disclosed are somewhat similar in both cases. But he might have had no knowledge of such intention in December 1905 when the first Kobala was taken, whereas he might have knowledge of it two months later. The suit relating to the second Kobala was instituted later. We do not know what evidence was adduced in this suit or what presumption of fact could be drawn therefrom. However that may be, it is unnecessary to examine the finding as to the knowledge of the fraudulent intention. There is the finding that consideration for Kobala was not proved and Dewan Das is the plaintiff in the present case, while he was the defendant in the other case. It comes to us by way of second appeal and we are bound by the finding of fact arrived at by the lower Appellate Court. We must accordingly dismiss this appeal with costs.