(KROVI) SUBBA RAO Vs. (DHULIPALA) NARASIMHAM

JUDGEMENT

(1.) THE plaintiff is the appellant here and he lost his suit because both the lower Courts have found as a fact that the document on which he relied as showing his title to the property was not merely a voidable instrument as being executed to defraud creditors, though a real transfer properly made, but was a. colourable transaction throughout leaving all the beneficial interest of possession in the property in the assignor. That being so, it would be covered not merely by the Full Bench decision in Bamaswami Chettiar V/s. Mallappa Reddiar [1920] 43 Mad. 760 but it would be covered by my own judgment in Palaniandi Chetty V/s. Appavu Chettiar [1916] 30 M. L. J. 565 where I guarded myself expressly by saying that had the transaction been a merely colourable one the plaintiff would not have succeeded in his action. THE further point that I held, that in cases where the transaction was not void, but merely voidable the plaintiff's remedy was merely to bring proceedings for the express purpose of setting aside the transaction for the benefit of himself and all other creditors, has been disapproved by the Full Bench, and all that is necessary to point out is that the Full Bench decision on that point does not arise in this appeal. From that point of view it is obvious that there were ample materials for the learned Judges below to find as they did, and this second appeal involves, as so many second appeals do, when you get to the real point, a mere question of fact with which I have no jurisdiction to deal. THE second appeal must be dismissed with costs of the 4 respondent.