Full Judgment
1. The first question argued is that subsequent creditors are not within the rule enunciated in the first Clause of Section 53 of the Indian Transfer of Property Act, IV of 1882. Reliance was placed on Sections 1 and 2 of 13 Eliz. Chap. 5 and it was suggested that the use of the words 'and others' in Section 1 and 'person or persons' instead of 'creditors' in Section 2 led to the decisions of the English Courts that 'sub-sequent creditors' fall within the prohibition of the English Statute, while the absence of such words in Section 53 of the Indian Transfer of Property Act made in favour of restricting the benefit to existing creditors. We are unable to agree with this argument. The English cases, cited by Mr. Venkatarama Sastri, Taylor v. Jones 26 E.R. 758 and Holmes v. Penney 69 E.R. 1035 do not lay it down that if the word 'creditors stood' alone it would not include subsequent creditors. The change in the language of the Indian Act is not, therefore, an index to a change of intention.
2. Moreover subsequent creditors are within the mischief of the Act. We are clearly of opinion that the settlement can be avoided by subsequent creditors. See Hossein Bhai Ahmedbhai v. Haji Ismail Haji Essac 5 Bom. L.R. 255 in which the question was decided and Sadashiv Vaman Dhamankar v. Trimbak Divakar Karumdikar 93 B. 146 and Ebrahimbahi Rahimbhai v. Fulbai 26 B. 577 in which the same rule of law was assumed.
3. It was next contended that the presumption in Clause 2 of Section 53 of the Indian Transfer of Property Act did not apply in the case of subsequent creditors.
4. The section does not say so. The words are that the intent may be presumed. The Indian Evidence Act treats such presumptions as presumptions of fact. We decline to allow the decisions of English Courts, if they lay down a different rule, to influence us to hold that the Judge of fact was not at liberty to make the presumption he did make in the circumstances of the case.
5. The second appeal is dismissed with costs.