The main legal point established in the judgment is the application of Section 53 of the Transfer of Property Act to determine the voidability of a sale intended to defeat and delay creditors.

Wallis, J.

1. The question whether the sale in favour of the defendant, Exhibit II, is voidable at the instance of the vendors creditors depends on the inference to be drawn from a number of circumstances attending the sale. The plaintiffs had obtained a decree in the High Court against Madarsa Rowthar and Sheik Davood on the 21st October 1902. On the 22nd January 1903 a petition was put in for transfer of the decree to the Subordinate Judges Court of Negapatam for execution, and on the 25th March 1903 and the 26th March 1903 two execution petitions were put in the Subordinate Judges Court for execution, Exhibits B and B1, praying for the arrest of the defendants in the suit and for the attachment of their properties including the property which is the subject of the present suit. In support of these petitions an affidavit, Exhibit B2, was sworn by the plaintiffs agent on the 20th March 1903 and filed on the 28th March 1903, in which it was alleged that some of the properties were mortgaged and that the defendants in the suit were trying to sell the scheduled properties, to discharge only the mortgage-debt and to appropriate the balance. The Court ordered the attachment of certain houses but not of the lands, as the Revenue Registers had not been filed; and on the 2nd April the plaintiffs agent swore another affidavit, Exhibit B4, stating that the defendants having come to know of the execution proceedings, were, with a view of defrauding the decree-holders, selling the lands in Ottathattai village to the present defendant, that the stamp paper had been purchased, and that the sale deed was being written. The affidavit was filed on the 3rd April 1903. As to the fact of the sale the deponents information was correct. The sale deed Exhibit II was executed on the 2nd April at Negapatam and presented for registration at Tirupundi, ten miles off, next day by Madarsa Rowthar, the senior vendor, and execution was admitted by the other vendors on the 5th April.

2. Now the defendants story is that he had been in treaty for the purchase of these lands as far back as October 1902 before the date of the plaintiffs decree. I am, however unable to accept his evidence on this point. It seems to me highly improbable that the defendant, who was an employee of the South Indian Railway on a small salary, and had been investing his modest savings for over twenty years in small purchases of land in the Conjeeveram Taluq of the Chingleput District, should, of his own accord, have embarked upon purchases of lands in the Tanjore District so far beyond his means as the event has proved. Between 1883 and 1902 Exhibits VII series show that he had made purchases for Rs. 2,644 in all, the largest single purchase being for Rs. 1,500 in 1899, whereas in this transaction he becomes, as will be seen, a purchaser for Rs. 17,500. However this may be, the evidence that he was negotiating for the purchase of these lands in October 1902 seems to me untrustworthy. H is story is that the sale went off because of a difference as to price; and as corroboration he produces two stamped papers of eight annas each which he says he purchased before a price had been settled. This seems to be most improbable. Old stamped papers are easily procurable, and in the present cases they were purchased from a stamp vendor who is also the writer of the sale deed Exhibit II. The story of the 2nd defence witness that he fixed Rs. 16,000 as the price without troubling to ascertain what was due on the mortgage also seems to me most improbable. As pointed out by the Advocate-General, he is an intimate friend of Annarnalai Chetty who is the person most interested in the whole transaction, as will be seen, and he has to make admissions which affect his credit as a witness. Further it must be remembered that in cases of this kind local sympathies are apt to be with the debtors and their transferee and against persons in the position of the plaintiffs.

3. In my opinion we must put aside