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(a) Transfer of Property Act (IV of 1882)-

S. 53-Fraudulent transfer-transfer document executed by plaintiff respondent in favour of another earlier than date of filing of butt by appellant-Order of attachment and decree obtained by appellant subsequently-Transfer, held, not, in circumstances, tainted with fraud.

(b) Evidence Act (I of 1872)-

- S. 115-Estoppel-No proof of respondent having had notice or knowledge of attachment before judgment-Mere fact of such respon dent's failing to raise objection before executing Court, or in any other manner, held not creative of any legal bar (estoppel) by conduct in way of respondent-Respondent's letter written to plaintiff Bank not in personal capacity but on behalf of a partnership-Cannot lead to drawing of any adverse inference against respondent.

(c) Transfer of Property Act (IV of 1882)-

S. 53-A-Part performance-Constructive possession-Recognised as tenable for purposes of S. 53-A-Contention that S. 53-A could be invoked only as a shield and not to protect possession and as such declaration regarding transfer sustainable, held, not correct.

Mst. Shankari and others v, Milkha Singh A I R 1941 Lah. 407 ; Milkha Singh v. Mst. Shankari and others A I R 1947 Lah. 1 and Inayat Ullah and others v. Shah Muhammad and others P L D 1961 Lah. 372 ref.

Muhammad Jaffar Tarar for Appellant.

Imdad Ali Khan for Respondent No. 1.

Respondent No. 2 in person.

Date of hearing : 29th May 1974.

The facts giving rise to this appeal may be briefly summarised. Ghulam Haider, the first respondent, filed a suit for a declaration that he is the owner in possession of house No. 38, D-Block, Arifwala, with a further prayer for perpetual injunction restraining Messrs Habib Bank Limited, the appellant (hereinafter called the Bank), from getting the said house sold in auction in execution of the decree obtained by the Bank against Khushi Muhammad, the second respondent, the foundation of the suit is the agreement to sell Exh. P. A., in which a sum of Rs. 10,509.00 is stated to have been paid by Ghulam Haider. The suit was resisted on all grounds. The trial Court impounded the document Exh. P. A., holding it to be a deed of conveyance and then finding that the amount of Rs. 10,500.00 had been actually paid allowed lien in Ghulam Haider on the suit house. Feeling aggrieved, the Bank carried an appeal to the District Judge, in which appeal Ghulam Haider also filed cross-objections. Both the appeal and the cross-objections have been disposed of by the learned District Judge by a Single judgment of 23rd December 1961. While dismissing the appeal of the Bank, the District Judge has allowed the cross-objections of Ghulam Haider and granted him a decree to the effect that he is in possession of the house in dispute as owner having paid Rs. 10,500.00 as the full price to Khushi Muhammad. The Bank has further been restrained from getting the house auctioned in execution of its decree dated the 10th of March 1958 against Khushi Muhammad. The Bank has come up to .this Court in second appeal.

2. A number of questions have been raised by learned counsel for the Bank. It has been firstly contended that the transfer under Exh. P. A. is fraudulent and had been entered into by Khushi Muhammad with Ghulam Haider in order to defeat the claim of the Bank against Khushi Muhammad judgment-debtor. It was next contended that possession of the suit house has not been delivered to Ghulam Haider and, therefore, no benefit could be drawn by Ghulam Haider under section 53-A of the Transfer of Property Act or the principles thereof. It was thirdly contended that Ghulam Haider is estopped by his conduct of having not objected to the attachment and execution proceedings before the executing Court and having come to the Court direct. There is no evidence on the record to show that Khushi Muhammad had entered into this deal with Ghulam Haider to defraud hi creditors. The Bank obtained a decree against Khushi Muhammad on the 10th of March 1958 in the suit filed in February 1957, in which suit an order for attachment before judgment was obtained on the 16th of February 1957, whereas the document Exh. P. A. had been executed by Khushi Muhammad in favour of Ohulam Haider earlier than the date of filing of the suit, I.e., on' the 1st of November 1956, which would show that the transaction in favou of Ghulam Haider is not tainted with fraud and the provision of law that a transaction is entered into with a view to defeating or delaying the creditor of the transferer is not applicable to the facts of the case. As regards estoppel by conduct, suffice it to say that the mere fact that Ghulam Haider failed to raise objection before the executing Court or to have in any manner objected to the attachment before judgment would not create any legal bar in the way of Ghulam Haider. It is not proved on record that Ghulam Haider had any notice of attachment before judgment of the house. No attempt has been made by the Bank to show that such a notice was ever served on Ghulam Haider or he had knowledge of any such attachment of warrant of attachment. The document, namely, Exh. D. 1 of 10th May 1958, on which reliance has been placed on behalf of the Bank to show that Ghulam Haider had made an admission (in Exh. D. 1) before the Bank E authorities that he had no house property and if he had really purchased the suit house he should have mentioned the same in the said letter written to the Bank for raising a loan, does not advance the case of the Bank because as rightly remarked by the learned District Judge, Exh. D. 1. has not been addressed by Ghulam Haider in his personal capacity but on behalf of a partnership known as "Messrs Kalu Ghulam Haider & Co., Arifwala" and. therefore, if any statement was being made by the partnership it will no affect Ghulam Haider in his personal capacity and it would be unfair to, draw any adverse inference.

3. Coming to the question of possession having not passed on to Ghulam Haider, I find that the contention is not well founded. There is ample evidence on record to show that the purchase Ghulam Haider was in possession of the house at least constructively, a form of possession recognized as tenable for purposes of section 53-A of the Transfer of' Property Act. At one time it was considered that section 53-A of the Transfer of Property Act was not applicable in the Punjab where excepting a few sections the Transfer of Property Act had not been enforced [see Mst. Shankri and others v. Milkha Singh A I R 1941 Lah. 407. This view was overruled in Miikha Singh v. Mst. Shankarf and others A I R 1947 Lah. 1. The argument advanced on behalf of the Bank is that section 53-A could only be invoked as a shield and Ghulam Haider could not have brought a suit to protect his possession and, therefore, the declaration granted is not sustainable in the eye of law. I am, however, not convinced by the argument. The question has been fully considered in Inayat Ullah and others v. Shah Muhammad and others P L D 1961 Lah. 372, wherein it has been held

" . . . . When a transferee by means of a document which has not been registered, though under the law that document was compulsorily registrable, comes to Court as a plaintiff and bases his claim on part performance of the contract of transfer, he is using the part performance of the contract as a shield and not as a sword as his object is only to defend his own title and not to attack the title of anyone else . . . . . : '

No authority to the contrary has been cited before me and following with respect the dictum in Inayat Ullah and others v. Shah Muhammad and others I hold that the suit is competent.

4. For the reasons given above, the appeal fails and is dismissed. There will no order as to costs.

S. A. H. Appeal dismissed.

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