CochIn Naval Base Civilian Employees Co-operative Society Vs. Rajan Kurup - Court Judgment

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- labour & services appointment: [v.k. bali, ch, p.r. raman & s. siri jagan, jj] post of pharmacist in homeopathy subordinate service - special rules for kerala homeopathy subordinate service rules, 1999 introducing new qualifications vacancy arising subsequent to coming into force of the said special rules held, vacancies have to be filled up only in accordance with special rules, 1999. unfilled vacancy that had arisen prior to amendment cannot be filled up by candidate not possessing amended qualifications prescribed by special rules. state government has the power to frame or amend the special rules with or without retrospective effect. mohanan k.r. & anr vs director of homeopathy, kerala homeopathy services, trivandrum & ors. - a3 gift deed, it is stated that both the defendants 1 and 2 are residing together and the document is executed out of love and affection. 213 of 1992 is allowed for the failure of the plaintiff to produce the additional document in the trial court, the appellant will suffer costs in the appeal.r. bhaskaran, j. 1. a.s. no. 213of 1992 is filed by the plaintiff in o.s. no. 91 of 1988 on the file of the subordinate judge's court, cherthala and a.s. no. 289 of 1995 is filed by the defendants in o.s. no. 92 of 1988 on the file of the same court. the two suits were filed by the same plaintiff, cochin naval base civil employees co-operative society. the relief prayed for in o.s. no. 91 of 1988 was to declare the settlement deed executed by the 1st defendant in favour of the 2nd defendant as null and void and not affecting the right of the plaintiff to realise the amounts decreed in favour of the plaintiff by proceeding against the plaint schedule property. 2. in o.s. no. 91 of 1988 the plaintiff contended that defendants 1 and 2 are husband and wife and are residing together. the 1st defendant as the member of the director board of the plaintiff-society incurred liability as per the award passed by the assistant registrar of co-operative societies in a.r.c. no. 66 of 1970 to the extent of rs. 55,150/- with future interest at 6%. there were other defendants also in the arbitration case. in a.r.c. no. 154 of 1971 another award was passed for rs. 1,11,235/- with future interest at 6%. though the plaint schedule property is in the possession of the 1st defendant, he has executed a settlement deed no. 1231 of 1986 in favour of the 2nd defendant on 12.5.1986. it was executed with a motive to defeat the plaintiff-society and it is not binding on the plaintiff s right to recover the amount under the award from the 1st defendant.3. the 1st defendant contended that in the arbitration cases the liability was quantified as against the 1st defendant and that his share has been paid and therefore the plaintiff cannot proceed against the property of the 1st defendant or the 2nd defendant and the plaintiff is not entitled to get a declaration as prayed for.4. the trial court found that since the assistant registrar has by ext.b1 order dated 7.3.1989 quantified the liability of the 1st defendant and the 1st defendant has discharged the liability as evidenced by ext.b2, it cannot be said that ext. a3 settlement deed was executed to defeat the payment of the amount due to the plaintiff-society.5. in these appeals, it is contended that the liability under the awards, a.r.c. nos. 66 of 1970 and 154 of 1971 was joint and several and the plaintiff is entitled to recover the award amounts from any of the members of the board of directors who were the defendants in the arbitration cases. it is also contended that as against ext.b1 order, the appellant-society filed an appeal and the appellate authority after hearing both sides, set aside the order and it was found that the liability could not be so apportioned. it is also contended that in the connected suit filed as o.s. no. 92 of 1988 the order of the appellate authority was brought to the notice of the trial court and the trial court did not accept the contentions of the defendants and that suit was decreed.6. in a.s. no. 213 of 1992, the appellant has filed c.m.p. no. 1561 of 2001 to receive the order passed by the joint registrar of co-operative societies. in the affidavit in support of the petition to receive additional document, it is stated that pw. i had deposed regarding the fact that ext.b1 was already set aside though he could not produce the same since he did not get a copy of it and the same is produced as additional evidence in the appeal. it is also stated that since the trial court proceeded entirely on the-basis of ext.b1 which has been set aside by the appellate authority, the additional document is an important piece of evidence to decide the dispute between the parties. in view of the averments and in view of the fact that no counter-affidavit is filed, the petition is allowed and annexure-a1 certified copy of the order passed by the joint registrar of co-operative societies, ernakulam, is marked as ext.a6 on the side of the plaintiff.7. the learned counsel for the appellant contended that in view of the additional document produced, the judgment and decree of the trial court require to be set aside. the learned counsel for the respondents does not dispute the existence or finality of the additional document produced in this appeal nor has he prayed for any opportunity to adduce further evidence in the case. he only contended that the suit as framed is not maintainable as the suit filed under section 53 of the transfer of property act must be a representative suit and since it is not filed in a representative capacity, the suit is liable to be dismissed.8. the learned counsel for the appellant on the other hand contended that there was no such contention raised in the trial court and there are no other creditors for the 1st defendant and without taking any such contention in the trial court, it is not open to the respondents to raise such a contention in the appeal. it is also contended that pw. 1 has specifically stated that the 1st defendant has no other creditors and there was no challenge to the same in cross-examination.9. it is true that under section 53 of the transfer of property act, a suit has to be instituted on behalf of, or for the benefit of, all the creditors. in k.d. talwar v. adeshwar lal (air 1972 delhi 122), it was held that a creditor's suit need only be in substance on behalf of creditors and it need not necessarily be a representative suit as such. it is also held in state bank v. nanan (air 1967 kerala 171) that a single creditor can also file a suit under section 53 of the transfer of property act. the same view was taken by the calcutta high court in union of india v. ram peary debt (air 1984 calcutta 215).10. in waman ramakrishna v. ganpat mahadeo (air 1936 bombay 10) a division bench of the bombay high court has held that objection as to maintainability of the suit that it was not filed in a representative capacity under section 53 of the transfer of property act should have been taken in the trial court itself and if it was not taken the defendant must be deemed to have waived such objection and cannot raise such objection in appeal. same view was taken by a division bench of the oudh court in girraj v. sankatha prasad (air 1938 oudh 33). a full bench of the allahabad high court considered a similar question in fazat ul-rahim khan v. nawal kishore (air 1962 allahabad 226) and it was held that as the plaintiff was the sole creditor and it is filed under section 53 of the transfer of property act, it is on behalf of all the creditors. in the light of the above decisions, i am of opinion that the defect, if any, in framing of the suit should not stand in the way of granting a decree in favour of the plaintiff if the plaintiff is otherwise entitled to it.11. ext. a3 is the settlement deed executed by the 1st defendant in favour of the 2nd defendant and it is dated 12.5.1986. the awards against the 1st defendant are dated 4.4.1979 and 26.5.1975 in a.r.c. no. 66 of 1970 and a.r.c. no. 154 of 1971 respectively. in ext.a3 gift deed, it is stated that both the defendants 1 and 2 are residing together and the document is executed out of love and affection. it is executed at a time when amounts were due from the 1st defendant to the society as per the awards. pw.1 has stated that the 1st defendant challenged exts.a1 and a2 awards in appeals and before the high court and they were confirmed. the trial court has also found that ext.a3 was executed to defraud the plaintiff-society. taking into account the relationship between the parties and the existence of the liability for the 1st defendant and no special reason is stated in ext. a3 for executing the gift deed, the finding of the trial court that ext. a3 was executed to defraud the creditors is only to be sustained.12. the trial court however dismissed the suit only on the ground that as per ext.b1 the liability was limited and the 1st defendant has discharged that liability. since i have already found on the basis of the additional document produced that ext.b1 was no longer in force and was set aside, that reasoning of the trial court cannot be supported. therefore the judgment and decree passed by the trial court require to be set aside and the suit liable to be decreed. in view of the fact that a suit challenging alienation on the basis that it is to defraud has to be filed for and on behalf of the creditors, it is declared that ext.a3 dated 12.5.1986 executed by the 1st defendant in favour of the 2nd defendant is void as against the plaintiff and all other creditors, if any, of the 1st defendant and a decree is passed in form no. 13 of appendix-d of the code of civil procedure.13. in a.s. no. 289 of 1995 it is contended that the trial court wrongly set aside ext. a5 settlement deed executed by the 1st defendant in favour of defendants 2 to 4. according to the appellants, the property covered by ext.a5 was purchased with the funds of the 2nd defendant in the name of the 1st defendant and the 1st defendant alone was the judgment-debtor. the trial court found that the plaint schedule property was the only asset of the 1st defendant and the intention for executing ext.a5 has to be gathered from the circumstances brought out on record. the contention of the defendants that the property was purchased in the name of the 1st defendant with the funds of the 2nd defendant and her father has not been substantiated. no consideration is paid for execution of ext. a5. when the 1st defendant was indebted to the society and steps are taken against him for realising the amount. the trial court has rightly come to the conclusion that ext. a5 was executed to defraud the plaintiff-society. in fact, the learned counsel for the appellant at the time of arguments, mainly stressed on the maintainability of the suit as it was not filed in a representative capacity. that question was already considered while dealing with a.s. no. 213 of 1992 and for the reasons stated in the preceding paragraphs, i find that the judgment of trial court cannot be set aside on technical grounds. however, as held in a.s. no. 213 of 1992, the judgment of the trial court is modified and it is declared that ext.a5 settlement executed by the 1st defendant in favour of defendants 2 to 4 is not valid as against the plaintiff and all other creditors if any, of the 1st defendant and a decree in form no. 13 of appendix-d of the code of civil procedure shall be substituted in the place of the decree granted by the trial court.14. in the result, a.s. no. 213 of 1992 is allowed and o.s. no. 91 of 1988 on the file of the subordinate judge's court, cherthala, decreed and the plaintiff is granted a declaration that the settlement deed executed by the 1st defendant in favour of the 2nd defendant on 12.5.1986 is void as against the plaintiff and all other creditors, if any, of the 1st defendant. a.s. no. 289 of 1995 is dismissed. but the decree granted by the trial court in o.s. no. 92 of 1988 is modified by declaring that ext.a5 settlement deed executed by the 1st defendant in favour of defendants 2 to 4 with respect to the plaint schedule property on 22.8.1987 is void as against the plaintiff and other creditors, if any, of the 1st defendant. in view of the fact that a.s. no. 213 of 1992 is allowed for the failure of the plaintiff to produce the additional document in the trial court, the appellant will suffer costs in the appeal. in a.s. no. 289 of 1995 also, the appeal is dismissed subject to the modification in the form of the decree without any order as to costs in the facts and circumstances of the case.