VELAMA Vs. RAYA SHENOY

JUDGEMENT

(1.) This appeal is by the first defendant from the decrees of the courts below setting aside a document, Ext. D-1 executed in her favour by the second defendant, her husband. The Trial Court found on Issue No. 2 which reads: .

(2.) The allegations in Para.3 and 6 in the plaint show that the document was impeached on the ground that it was in fraud of creditors. It is specifically so stated in the first sentence in Para.3 and the relief claimed was for setting aside the document. There was no declaration sought that the document was sham. The learned Munsiff had also not come to the conclusion that the document was a sham one. In these circumstances, the lower appellate court had clearly erred in assuming that the Munsiff had held that the document was a sham one and in thinking that the allegations in the plaint were that the document was a sham one.

(3.) The learned Judge has apparently proceeded on the basis that if the allegations in the plaint were that the document was in fraud of creditors, the action should have been brought as a representative one. He has however not considered the question. Counsel for the appellant has raised this point again before me. I do not think that it is necessary to send the case back to the lower appellate court for a decision on this question since the point raised is a pure question of law.