KOTTARATHIL PUTHIYAPURAYIL POKKER Vs. BALATHIL PARKUM CHANDRANKANDI KUNHAMAD

JUDGEMENT

(1.) In this case the Lower Appellate Court seems to me to have erred in supposing that unless the contested sale-deed, Exhibit V, is merely a sham transaction, the present suit is not maintainable. The ruling quoted, Palaniandi Ghetty v. Appavu Chettiar if examined, does not support such a view; nor does the later Full Bench ruling Subramania Iyer v. Muthia Chettiar (1917) I.L.R. 41 M. 612 : 33 M.L.J. 705 which considered the same question, and to which I Was a party.

(2.) What was decided in these cases was this : that, where the validity of an alienation is impugned on the ground that it offends against Section 53 of the Transfer of Property Act, that alienation must be upheld until it is set aside in proceedings properly instituted for the purpose. The exact nature of the proceedings which should be instituted was not determined. In Palaniandi Chetty v. Appavu Chettiar Coutts Trotter, J., expressed the opinion that a creditor suing to set aside an alienation on this ground, must do so on behalf of all creditors, unless (as in the case before us) he was a judgment creditor who had taken attachment in execution of his decree. This view was dissented from by the other learned Judge, Seshagiri Aiyar, J., and the Full Bench expressly left the point undecided. No other light is thrown on the nature of the proceedings by either judgment.

(3.) What we have therefore to consider is whether the present suit should be treated as one properly instituted for the purpose of setting aside the assignment deed, Exhibit V.