53. Fraudulent transfer

(1) Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed.

Nothing in this sub-section shall impair the rights of a transferee in good faith and for consideration.

Nothing in this sub-section shall affect any law for the time being in force relating to insolvency.

A suit instituted by a creditor (which term includes a decree-holder whether he has or has not 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.

(2) Every transfer of immovable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee.

For the purposes of this sub-section, no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made.

—————————————————————————————————————————————-

It is now well settled that if objection is raised founded on Section 53, Transfer of PropertyAct, 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.

JUDGMENT

R.P. Mookerjee, J.