Madras High Court
Ramasamia Pillai vs Adinarayana Pillai And Ors. on 23 October, 1897
Equivalent citations: (1897)ILR 20MAD465
JUDGMENT
1. On the facts found by the District Judge we do not think he was justified in his conclusion that the transaction was in fraud of creditors.
2. The Judge finds there was good consideration for the mortgage, but considers that the want of good faith brought the ease within the purview of Section 53 of the Transfer of Property Act. The reference to good faith occurs only in the proviso to the Section.
3. It has first to be seen whether there was intent to defraud creditors within the meaning of the former part of the Section. When it is said that a deed is not executed in good faith what is meant is that it was executed as a mere cloak, the real intention of the parties being that the ostensible grantor should retain the benefit to himself [ex-parte Games I.L.R. 12 Ch. D., 314] There is nothing to show that there was want of good faith in that sense in the present case. Section 53 cannot be understood and correctly applied without reference to the English cases on which the Section is really founded.
4. We must reverse the decree of the District Judge and restore that of the District Munsif.
5. Respondents must pay costs in both Appellate Courts.