Harun-UL-Rashid, J .

1. Substantial questions of law formulated in the second appeal at the time of admission are as follows:

i) Whether on the facts pleaded and the circumstances proved in the case taken along with the admissions of the plaintiff himself, the transaction evidenced by Ext.A2 could at all be found to be a sham transaction and whether the decision of the lower court is sustainable?

ii) Whether the plaintiff is entitled in law to raise any claim of title and possession when the major portion of the properties (plaint B schedule being only a lesser part of it) were acquired by the State from the possession of the defendant, comspensation in respect of the the acquired portion was paid to the defendant without any protest from the plaintiff?

iii) It is brought out in evidedence that the transaction evidenced by Ext.A2 forms part and parcel of mutual transfers between the plaintiff, his father, Easwaran Namboodiri, the defendant and their brothers, Govindan Namboodiri and Kesavan Namboodiri, all of which has taken place on 13.2.1981. Under such circumstances whether the plaintiff is at all entitled to contend that one of such mutual transfers alone evidenced by Ext.A2 is a sham transaction?

iv) Whether the plaintiff is barred in law from contending that the transaction evidenced by Ext.A2 is a sham transaction in view of the decision in O.S.No.101/87 as affirmed by A.S.No.65/89 whereunder it was found that the other transactions entered into on 13.2.1981 between the plaintiff, his father and other brother and of which the plaint transaction forms a part are found to be real and genuine?

v) The motive with which the transaction evidenced by Ext.A2 was resorted to being admittedly to defeat the ceiling provisions of Kerala Reforms Act, which is prima facie opposed to public policy, whether the plaintiff is entitled to any reliefs in a court of law?

During the course of hearing the following substantial questions of law are formulated:

i) Whether mutual execution of documents as part of family settlement is not sufficient consideration for the documents executed by one in favour of the other?

ii) Whether the consideration in a family settlement being expectation that such an arrangement or settlement will result in establishing or ensuring amity and goodwill among the relations, in such situation whether Ext.A2 can be termed as a sham document?

iii) If a document (Ext.A2 in this case) is treated as sham, and on the faith of that document other documents are executed, will not the whole scheme of family settlement fail?

2. The defendant in O.S.No.63 of 1987 on the file of the Munsiff Court, Payyannur is the appellant. The appeal is directed against the judgment and decree in A.S.No.20 of 1993 on the file of the Sub Court, Payyannur. Suit was filed for a declaration that sale deed dated 13.2.1981 is executed as a sham document and was not intended for the enjoyment of the property by the defendant and for recovery of plaint 5 schedule property excluding 15 cents. The trial court held that the sale deed executed by the plaintiff in favour of the defendant was not intended to dispose of the beneficial interest therein and therefore as per Section 81 of the Indian Trust Act the defendant had to hold the property for the benefit of the plaintiff from the date of Ext.A2 sale deed. The court held that Ext.A2 sale deed was executed by plaintiff in favour of the defendant on 13.2.1981 as a sham transaction and that by the repeal of Section 81 of the Indian Trust Act and as per Section 7 of the Benami Transaction (Prohibition) Act, 1988 though the transaction was not intended to be acted upon the interest of the plaintiff automatically transferred to the name of the defendant and therefore the plaintiff is not entitled to get a declaration as prayed for For the above said reasons the trial court dismissed the suit. The appellate court held that the benefit of the Benami Transaction (Prohibition) Act is not available to the defendant