Decided on September 26,1974

Kesava Bhatt Appellant
PARVATHI Respondents


GEORGE ABRAHAM VADAKKEL ,J. - (1.) THE lower courts concurrently found that Ext.A -1 settlement deed whereby the father of the defendants pur­ported to gift his properties to the defendants 'is a sham and collusive document.'Ext.A -3 judgment in O.S.No.14 of 1962 on the file of the Sub Court,Kasaragod shows that the plaintiff obtained a money -decree on a promissory note executed by the father of defendants in 1951 and renewed from time to time,the last of the renewal being on 9th June 1960.Ext.A -1 was executed on 17th March 1960.In execution of the decree in O.S.No.14 of 1962 the plaintiff attached the standing crops in the plaint pro­perties,and the defendants,thereupon,preferred a claim petition on the basis that the properties have been gifted to them by their father as per Ext.A -1.The claim was upheld by the execution court by Ext.A -2 order.This necessitated the present suit wherein the plaintiff prayed for a declaration that Ext.A -1 settlement deed is fraudulent and that it was brought about to dupe and defraud the plaintiff.The plaintiff also prayed for setting aside Ext.A -1 settlement deed.The trial court decreed the suit in terms of the plaint,and the lower appellate court confirmed the same.
(2.) THE only point urged before me is that the suit is not maintainable for the reason that it is not a representa­tive suit as contemplated by the last paragraph of section 53(1)of the Transfer of Property Act,1882.The first paragraph of section 53(1)provides that a 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,and the last paragraph thereof on which reliance is made by the appellants makes it obligatory on the part of a creditor,if he institutes a suit 'to avoid 'the transfer on the grounds mentioned in the first paragraph,to institute the same on behalf of,or for the benefit of,all the creditors.The only question,therefore,that has to be considered is whether the suit out of which this appeal arises,is a suit solely and wholly 'to avoid 'a 'voidable 'transfer. A colourable transfer or sham transfer is not intended or meant to operate between the parties to the document,and is therefore no transfer at all.A real and genuine transfer is valid between the parties to the transaction,though it can be avoided by a creditor,who thereby is defeated or delayed,if the transfer is made with intent to defeat or delay the creditors of the transferor.Such avoidance may be by instituting a suit or in some other manner,as for example,by attaching the property as still belonging to the transferor,whereby the creditor claims to treat the transfer as void.See Abdul Shukoor Saheb v .Papa Rao A.I.R.1963 S.C.1150.The last paragraph of section 53 would be attracted only where the creditor chooses to file a suit to 'avoid 'a transfer which is 'voidable 'at his instance,and is,therefore,valid as between the transferor and the transferee till it is avoided.Where the transferee is a mere benamidar and the transfer is only a colourable one intended only as a mask or to screen off the property there is no need to avoid the same.The Supreme Court decision above mentioned is authority for the proposition that a creditor,who in most cases will be a stranger,being unable to know whether the transfer is a real one or a sham one,is entitled to raise alternatively all the pleas open to him,viz .,that the transfer is sham or a pretended sale without consideration and not intended to pass title to the nominal purchaser,and,in the alternative,that even if it were a real transaction supported by consideration and intended to pass title to the plaintiff,still the same is a fraud upon the creditors and,therefore,is voidable at his instance.
(3.) IN paragraph 7 of the plaint the plaintiff's case is that the 'gift deed impugned is not a true and genuine tran­saction,but is brought about by the defendants in fraudulent collusion with each other only to dupe and to defraud the 1st defendant's creditor,the plaintiff ' ;.The word fraudulent occurs in some other passages also in the plaint.The plaintiff also excuses himself for not filing the suit as a representative one on the ground that he is the sole creditor;( whether this is a sufficient excuse or not does not arise for consideration in this case,and I am not deciding that question)on which there is a sharp cleavage of opinion "see the discussion in N.Rajyalakshmamma v .K.Rajamma A.I.R.1973 A.P.126 where the decision of this court in State Bank v. A.K.Nanan A.I.R.1967 Kerala 171 is dissented from.How­ever,I am not prepared to hold that the plaint proceeds solely on the basis that the transfer is,though fraudulent,a real one.It certainly is also on the basis that the gift deed is ˜not a true and genuine transaction 'and that it is a 'collusive 'one.The evidence adduced appears to have been directed to substantiate the case that the transfer is not a real transfer.The trial court has observed that the defendants have no case that the evidence adduced on the side of the plaintiff would disclose a real transfer under Ext.A -1,and that their only attempt was to debar the plaintiff from adducing evidence in support of his case that.Ext.A -1 is a sham document as contrary to pleadings.Nor was any arguments advanced before me that the evidence discloses a real transfer and not a sham one.The argument was that the evidence cannot be looked into,in the absence of pleadings and issues.I am afraid that the above argument is without any substance.The trial court raised two issues on the question of maintainability of the suit:Issue 3 "whether the suit is not maintainable in view of Order 1,Rule 8 of the C.P.C."and Issue 5 "whether the suit as brought is maintainable " ;.The plaintiff being entitled to plead,in the alternative that Ext.A -1 settlement deed,if real,is one voidable at his instance,or that it is a sham document,at the evidence stage,he is free to adduce evidence in support of one or the other of the pleas,and confine his case to one of them.The plaintiff in this case has not chosen to develop his case that Ext.A -1 settlement is a fraudulent transaction though a real one,so that Issue 3 became an irrelevant or imma­terial issue.The only other issue on this question is Issue 5,on which the burden of proof was upon the defendants to establish that the suit is not maintainable.This,they can discharge only by proving that the settlement deed is a real one,upon proof of which Issue No.3 would be a material issue.Defendants have not established that Ext.A -1 is a real transfer,and the plaintiff has,as already,stated,proved that it is a sham one.;

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