The main legal point established in the judgment is that the plaintiff had the right to attach the properties under O.XXXVIII R.5 before the decree, and the provisions of S.53 of the Transfer of Property Act and S.42 of the Specific Relief Act were applicable.

1. The plaintiff in these three cases is the same person. So is the 1st defendant. The 2nd defendant in each case is a son of the 1st defendant, and the suits were brought to make the properties gifted by the 1st defendant, to these three sons available for satisfying a decree obtained by the plaintiff against the 1st defendant.

2. In A.S. No. 374 of 1124 (from O.S. No. 103 of 1117 of the District Court, Alleppey) this court passed a preliminary decree directing the 1st defendant (who was the 1st defendant there as well) to account to the plaintiff (who was the 2nd plaintiff there) for the latter's share of the profits from about 130 acres of wet land (the Somathuram lands as they have been called) of which the 1st defendant was in sole possession and enjoyment but in a substantial share of which it found that the plaintiff had a leasehold right. This was on 17-11-1953. The accounting was to be from 1118 M.E. (1942-43 A.D.) till the date of the passing of the final decree, and the suit went back to the trial court for passing a final decree after ascertaining the profits for this period. The suit was then transferred of the Sub-Court, Alleppey where it was heard as O.S. No. 44 of 1957. On 23-12-1957, the trial court passed a final decree for Rs. 2 lakhs and odd in favour of the plaintiff. However, on appeal to this court, the amount was reduced to Rs. 1,61,000/- and odd. Meanwhile, in July and August 1956, the 1st defendant had executed the deeds, Exts. P3 to P6, purporting to gift about 130 acres of wet land (not the Somathuram lands) in separate portions to his four sons. On getting to know of this, the plaintiff had on 8-10-1956, made an application, Ext. P-12, to the trial court praying for attachment before judgment of the properties covered by the gift deeds on the allegation that these deeds were sham and nominal transactions and that the 1st defendant was proceeding to dispose of all his properties with intent to obstruct and delay the execution of the decree that was to be passed against him in the suit. A conditional attachment under sub-rule (3) of R.5 of O.XXXVIII of the Code was also sought. This was ordered, and, it would appear, effected on the same day. In December 1956 and January 1957, three of the four sons (the IInd defendants in the present suits & the appellants herein) preferred the claims, Exts. P10, P11 & P13 to the properties attached and prayed that the properties be released from the attachment. For some reason or other, the application for attachment and the claims were being posted along with the suit itself, and, on 23-12-1957, the date on which it pronounced the final judgment in the suit, the court made an order dismissing the application for attachment before judgment and raising the conditional attachment already effected on the ground that it was O.XXI R.42 and not O. XXXVIII R.5 that really applied and that the application for attachment should have been made to the executing court. It did not, however, as it perhaps should have done, decline to adjudicate on the claims, but, on the contrary on the same day allowed the claims although the reason it gave was that the attachment was raised by the order made in the application for attachment before judgment. On 22-12-1958, just within a year of the order allowing the claims, the plaintiff brought the present suits praying:

(1) That the claim orders be set aside;

(2) that a declaration be given that the gifts were sham and nominal and that the properties still belonged to the 1st defendant and were attachable for his debts and that therefore the attachment levied by the plaintiff was valid; and

(3) in the alternative, in case the gifts are found to be real, then that they be declared to be fraudulent transfers, made with intent to defeat and delay the creditors of the 1st defendant, and therefore void as against the creditors.

The suits, I may add, were brought on behalf of all the creditors of the 1st defendant with leave obtained under