This Second Appeal is filed by the 1st defendant against the judgment and decree of the Subordinate Judge of Chingleput who reversed the decision of the trial Court dismissing the suit brought by the respondents for a declaration of their title to the suit property and for the recovery of possession thereof. The facts material for the purpose of this enquiry are as follows: One Damodara Mudali executed a sale deed Ex. P-1 in favour of the appellant conveying his divided half share in the suit house for a stated consideration of Rs. 600-0-0 on 9th June, 1935 and had it registered on 3rd October, 1935. The vendor took the same property on lease from the vendee evidenced by the original of Ex. D-1, dated 3rd October, 1935. A creditor of Damodara attached the suit house in execution of a decree which he obtained against him. The 1st defendant in the present suit intervened with a claim petition but his claim was disallowed on the ground that, the sale was effected with a view to defraud the creditors. The defeated claimant, did not bring a suit to set aside the claim order as the decree debt was satisfied out of the sale proceeds of other properties belonging to Damodaram. Subsequently, the present plaintiffs instituted a suit O. S. No. 176 of 1936 against the present 1st defendant, that is the vendee under Ex. P-i and the widow and mother of Damodara (Damodara having died by that time) for an injunction restraining them from interfering with the plaintiff’s possession on the allegations that Damodara and the plaintiffs were members of an undivided joint family and that on the death of Damodara the plaintiffs got the suit property by survivorship. This suit was ultimately dismissed as it was found that Damodara on the date of Ex. P-1 was divided from the plaintiffs and that the plaintiffs were not in possession of the property at the time of the suit. It is not necessary for me to refer to some other litigation in respect of the same property as that has no bearing on the controversy in the present appeal. Having failed there, the plaintiffs laid this action for the reliefs mentioned above with the averments that Ex. P-1 was a sham and nominal document not intended to convey title and that they were entitled to the properties as the reversioners to the estate of Damodara.

The suit was resisted mainly on the plea that the sale deed Ex. P-1 was a genuine one and that the plaintiffs could not put forward any claim thereto. The trial Court dismissed the suit holding that Ex. P-1 evidenced a real transaction and that it was not a nominal document executed in fraud of creditors. On appeal the lower appellate Court in disagreement with the trial Court found that Ex. P-1 was executed with a view to defraud the creditors. In the result, it decreed the suit.

It may be stated that the learned Subordinate Judge had not kept in view the distinction between a sham and fictitious document under which no title was intended to pass and a real document executed with intent to defraud creditors. Having regard to this fact, I had to call for a finding when the appeal came on for hearing for the first time in September, 1951, as to whether Ex. P-1 was a mere sham document under which no title was intended to pass to the vendee and therefore a mere nullity or whether it was a document by which legal title was intended to vest in the vendee with the object of defrauding the creditors. The finding submitted by the learned Subordinate Judge is that the intention of Damodara was not to defraud his creditors but that his object was only to retain the suit property for himself and make the creditors proceed against the other properties, that consequently Ex. P-1 was not intended to convey legal title to the 1st defendant and that it was merely a sham document. I will presently show that this finding is not borne out by the evidence on record and is also self-contradictory and is therefore not entitled to any weight. I propose to consider the evidence