Mulla Abdul Gaffur vs Yeddula Narasimha Reddy
2023 Latest Caselaw 1583 AP

       HON'BLE DR. JUSTICE K. MANMADHA RAO

       CIVIL REVISION PETITION No.1157 of 2020

ORDER :

This Civil Revision Petition is filed by the petitioners

against the Order and decree, dated 13.03.2020 passed in

E.P.No.116 of 2019 in O.S.No.74 of 2017 on the file of the

Court of Principal Senior Civil Judge, Nandyal.

2. Heard Sri B. S. Reddy, learned counsel appearing

for the petitioner and Sri G. Sravan Kumar, learned counsel

appearing for the respondents.

3. Learned counsel for the petitioner/plaintiff submits

that the plaintiff has filed the main suit in O.S No.74 of

2017 for recovery of money against the first respondent.

During pendency of the suit, the first respondent/first

defendant died and as such the respondents No. 2 to

4/defendants No.2 to 4 were brought on record as Legal

Representatives of the deceased first respondent.

Subsequently, the suit was decreed on 30.04.2019 against

the estate of the deceased first respondent/J.Dr lying in the

hands of the respondents/J.Dr Nos. 2 to 4. After passing of

the decree, the petitioner/plaintiff/D.Hr made several

demands to the J.Dr Nos.2 to 4 to discharge the decree debt,

but they did not choose to pay any amount. Thereafter, the

D.Hr filed the present E.P. for attachment and sale of the

E.P schedule properties to realize the decree debt. He

further submits that as the E.P schedule proerpty was

already attached by the Court below, requests this Court to

make attachment order as absolute to proceed further in the

E.P.

4. On the other hand, learned counsel for the

respondents/J.Drs submits that originally the E.P schedule

properties are the ancestral properties of the first

respondent. In the family partition they were fell to the

share of the first respondent. Subsequently the first

respondent during his life time, executed a registered gift

deed in faovur of the second respondent on 26.8.2017 and

her name was also mutated in the revenue records.

Moreover the EP schedule properties does not stand in the

name of the first respondent as on the date of passing of

decree. He further submits that the attachment was

effected on 28.7.2019 and by that date the property does not

stand in the name of the deceased first respondent. The

second respondent got the property by virtue of registered

gift settlement deed and she became absolute owner of the

property, but she has not. succeeded any estate of the

deceased consequent to the death of the deceased first

respondent. He further submits that the petitioner filed E.P.

only to harass the J.Drs. and hence prayed to raise the

attachment and dismiss the E.P.

5. After careful consideration of the documentary

evidence and on perusing entire material available on record

and also the citations which were filed by the parties, the

Court below dismissed the E.P. on the ground that the

petitioner/D.Hr is not entitled to proceed against the E.P.

schedule property to realize the decree debt. Challenging

the same, the present CRP has been filed by the

petitioner/plaintiff.

6. This Court vide order dated 02.11.2020 while

issuing notice before admission, granted interim direction to

the respondents not to sell or alienate in any manner the

property which has been attached on 28.07.2019 for a

period of six weeks and thereafter it was extended from time

to time.

7. During hearing, learned counsel for the petitioner

has placed reliance on a decision of Hon'ble Supreme Court

reported in Dayanandan, minor, by mother and guardian

Saradambal and another v. Venugopal Naidu1, wherein it

was held that :

" Section 128 of the Transfer of property Act fastens a personal liability upon the universal donee for all debts due by the donor at the time of the gift though that liability is confined to the extent of the properties comprised in the gift. This aspect, if 1 may say so with respect, again, does not appear to have been kept in view in AIR 1952 Trav. Co. 23. The liability or the universal donee to pay the decree debt of the donor arises not only by reason of the donee accepting the gift and of being the legal representative of the deceased but also by the very terms under which he becomes a universal donee. Though it was conceded by counsel in Andhra Bank Ltd. v. Srinivasan, AIR 1952 SC 232, that a universal donee would be a legal representative, the Supreme Court was inclined to take the view that even a person who intermeddled with only a part of the estate of a deceased would be his legal representative. The case of a universal donee is a fortiori on a better footing."

In another decision reported in Parvesh Kumar

Versus h.P. State Forest corporation Ltd. & others 2,

wherein the Himachal Pradesh High Court held that :

Provisions of Section 128 of the Transfer of Property Act read as under:-

1963 SCC OnLine Mad 155

2017 (4) ILR (H.P) 117

"128. Universal donee.--Subject to the provisions of section 127, where a gift consists of the donor's whole property, the donee is personally liable for all the debts due by [and liabilities of] the donor at the time of the gift to the extent of the property comprised therein."

6. A close reading of the provisions of Section 128 of the Transfer of Property Act, 1882, "discloses"that where a gift deed in respect "of" the entire estate of the donor stands executed upon the donee, thereupon, the donee is personally liable for all debts indemnifiable by the donor, significantly, when debts arise or occur at the relevant time of the making of a gift by the donor, also the relevant liability "of" the donee in respect of the donor "is" limited to the extent of the property received by the donee from the donor. However, since, the entire property of Jai Gopal Narain Kaushal stands, for the reasons aforesaid, concluded to be gifted to Parvesh Kumar, thereupon, prima facie hence the entire property borne therein is rendered amenable for realization "through" coercive process "of" the entire decretal amount.

7. However, at this stage, the learned counsel appearing for petitioner Parvesh Kumar, submits that the mandate of Section 128 of the Transfer of Property Act, standing attracted with respect to debts or legal liabilities in respect whereto the donor "is"pronounced "under" judicial verdicts to be personally liable, whereas at the time of making of the relevant gift deed, "no adjudicatory verdict(s)" standing pronounced upon the apposite civil suit(s), given the making of the relevant gift deed obviously occurring during the pendency of civil suit(s), thereupon, rendering unattractable hereat, the mandate of Section 128 of the Transfer of Property Act. The aforesaid submission addressed before this Court, by the learned counsel appearing for the petitioner, "if accepted" will tear apart the salutory besides the holistic wisdom behind the mandate engrafted in the aforesaid provisions of the Transfer of Property Act, more so, when it is meant for carrying ahead "the relevant salutary purpose" "of" hence enabling the decree holder concerned "to" seek realization of the decretal amount from the assets received by a donee from the donor "through a gift deed" also is meant for forestalling a donor "from by his" employing the aforesaid stratagem qua his, thereupon, concerting to frustrate the execution of decree(s), whereunder liability(ies) stand pronounced upon him. Also the import of the signification borne by the coinage "debts due by the donor at the time of the gift" occurring in Section 128 of the Transfer of Property Act "cannot" be controlled or trammeled "by" any illiberal strict interpretation being meted thereto, comprised in its bearing a pedantic parlance that "at the stage", the Court concerned stands seized with suit(s) for recovery of amount(s) from the donor, it being imperatively enjoined to in contemporaneity "of averred eruption of liabilities" "make" an adjudication thereon, contrarily, a liberal signification in consonance with the wisdom behind the aforesaid provisions is enjoined to be imputed thereto, whereupon, the mere institution of a suit by the plaintiff against the donor, wherein the former claims a decree for recovery of debts due to it "may be sufficient" for its being construable "to fall within" the ambit of the aforesaid statutory coinage also the apposite averments in the

plaint being amenable for a construction "that hence" debts being open for defrayment by the donor to the plaintiff dehors no adjudication being pronounced upon the apposite suit, "especially" when the donor for frustrating or for forestalling a successful plaintiff/decree holder from proceeding against his estate(s) "may proceed to" distribute his estate(s) by making its gift.

          In         another   citation       reported       in     Lingareddi

Sreenivasulu              Reddi       died)       and       others        versus

D.Muniratnam Reddi and others3, wherein the Hon'ble

apex Court held that :

"As against that decision there is the decision there is the decision of the Madras High Court in Dayanandan v. Venugopal . The learned single Judge has differed from the view taken by the Travaacore & Cochin High Court referred to above and held that the universal donee who by reason of a gift enters upon possession of the estate of the deceased donor is a " legal representative" of the deceased within the meaning of S. 2 (11) of the Civil P.C. which gives a very wide definition of the expression " legal representative". It has next been observed that apart from a universal donee being a legal representative he takes the estate of the donor subject to his liabilities because S. 128 of the T.P. Act fastens liability upon the universal donee in respect of all debts due by the donor at time of gift though such liability is confined only to the extent of the properties comprised in the gift.

In another case reported in Sri Kokkirapati Venkata

Ratham versus Sri Mellimi Samuel John (died) and

1977 SCC OnLine AP 113

others4, wherein the Telangana and Andhra Pradesh High

Court held that :

"The transferees in question by virtue of the so-called settlement though prior to the two suits in question were subsequent to the so- called pronote debts contacted by the 1st judgment- debtor/donor in favour of one of his son-the universal donee. And the donee from the judgment-debtor being the son of the donor/judgment- debtor in turn again executed a settlement in favour of his wife-the 7th judgment- debtor/7th respondent in the two revisions. It cannot be said that the judgment-debtor has no knowledge about the contacting of the pronote debts and the amounts due from him. Once such is the case, there is no necessity of filing a separate suit if at all the decree- holder is able to show that the transfer by execution of settlement by the judgment-debtor before even filing of suit and subsequent to the contacting of the money decree amount under pronote a fraudulent transfer to adjudicate. The lower Court in such a case is supposed to enquire into and pass an appealable order by virtue of Order XXI Rule 58 clause 4 read with Section 96 C.P.C. and the Full Bench expression of this Court in Mr. Gurram Seetharam Reddy v. Gunti Yashoda and another by recording evidence rather than dismissal of the application by referring to the two expressions placed reliance, one is of this Court in Linga Reddi Srinivasulu Reddy (died) and others Vs D.Muniratnam Reddi and others , saying a universal donee, who is in possession of the properties of the judgment-debtor, is also to submit to the jurisdiction of the Executing Court to proceed against the property by the decree-holder and the other judgment of Dayanandan v. Venugopal Naidu , on similar proposition. Further, the Constitutional Bench of the Apex Court in Abdul Shukoor Saheb v. Arji Papa Rao , referring to Section 53 of the Transfer of Property Act, held that even a transferee in good faith to claim as bonafide transferee for consideration without notice of the earlier defects must establish the same for which also the burden lies on such transferee to claim

2018 (2) ALT 308

exemption from proceeding against the property in question. Thereby, the impugned dismissal orders of the lower Court are unsustainable and are set aside by remanding the matter to the lower Court by restoring the two applications with a direction to conduct enquiry afresh by recording evidence and decide on own merits afresh.

He also placed reliance on judgment reported in

Shanmugam and 2 others vs. M/s. Syndicate Bank, rep.

by Branch and Agent, Vysial street, Coimbatore and 9

others5, wherein the High court of Madras held that :

"it is admitted that the first item of the "B" schedule property has been settled in favour of the petitioners. The second item is a road formed to reach the first item of the suit properties. So, that road is already there and the same is utilised to reach the first item of the suit properties. So, that road has been given to the petitioners. In the absence of any evidence or any plea by the petitioners that some other persons also are having right to use the same, it has to be taken that the second item of the suit properties also has been given to the petitioners. So, from the said settlement deed it has to be construed that the entire suit properties have been given to the petitioners. Even under the release deed dated 20.1.1982, the right in the superstructures was also given. The abovesaid facts will clearly establish that the petitioners are the universal donees as cotemplated under Section 128 of the said Act.

8. On perusing the above catena of decisions and

upon considering the entire material available on record,

this Court observed that, as per Section 128 of T.P. Act, a

person who gets the properties of the donor under a gift

1998 SCC OnlIE Mad 690

he/she is liable personally for all the debts due and

liabilities by the Donor at the time of the gift to the extent of

the properties. In the present case, the deceased first

respondent was executed a gift deed by giving gift of

properties in favour of the 4th respondent as such she is

liable for debts due or liabilities by the donor i.e., the first

respondent at the time of execution of gift. The 4th

respondent herein is the done as such she is liable for all

the debts due and liabilities by the 1st respondent at the

time of the gift to the extent of the property comprised

therein. As such the 4th respondent is liable for paying

decretal amount to the petitioner.

9. In view of the foregoing discussion, this Court is of

the opinion that the Court below in dismissing the petition

observing that the attachment properties were given to the

4th respondent before attachment order by executing gift

deed and the petitioner without exhausting remedy to file

suit to declare that the document has been brought into

existence to avoid payment of debt as such it is a fraudulent

transfer, is contrary to the provision under Section 128 of

T.P. Act and that as per Section 128 of T.P. Act, the

universal done is liable for the debts due or liabilities by

donor at the time of the gift to the extent of the properties

and not necessary to file suit. Therefore, this Court is

inclined to allow the present revision petition.

10. Accordingly, the Civil Revision Petition is allowed.

The order dated 13.03.2020 passed in E.P.MNo.116 of 2019

in O.S.No.74 of 2017 by the Court below is hereby set aside

and to attach the E.P. Schedule properties which belong to

the deceased first Judgment Debtor, lying in the hands of

the Judgment Debtors No.2 to 4 and thereafter to sell the

properties in the public auction, to enable the Decree Holder

to realize the decree debt. There shall be no order as to

costs.

         As   a   sequel,   all   the   pending    miscellaneous

applications shall stand closed.

                                  ______________________________
                                   DR. K. MANMADHA RAO, J.
Date :     -03-2023
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      HON'BLE DR. JUSTICE K. MANMADHA RAO




      CIVIL REVISION PETITION No.1157 of 2020




                  Date :   .03.2023




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