The court emphasized the importance of bona fide exercise of a creditor's right to avoid a transfer under Section 53 of the Transfer of Property Act.

Sadasiva Aiyar, J.

1. The plaintiff is the appellant. He porabaped the plaint lands 44 cents., besides two other properties, for Rs. 500, on the 9th April 1901 under Exhibit A from Subramaniya Asari who was then involved in debt. The three properties were worth Rs. 1,200 and it is found by both the lower Courts that the conveyance to the plaintiff was intended to defraud the creditors of Subramaniya Asari. The Court of first instance held that the sale was a sham transaction but the lower Appellate Court held that it was intended to be a real transaction (though also intended to defeat the creditors) and that the whole of the consideration was paid.

2. As regards the defendants sale-deeds it was for Rs. 275 executed by the same Subramaniya Asari in August 1912, about 16 months after the plaintiff obtained his sale-deed. The defendants sale deed related only to the plaint item of 44 cents and the purchase money was Rs. 275. Out of this amount of Rs. 275, Rs. 75 was due on a mortgage of the plaint-property itself to a third person and the defendant undertook to pay it. The lower Appellate Court finds that he did not pay it. It may, therefore, be taken that the defendant purchased the equity of redemption of the plaint-property for Rs. 200. He paid the whole of the Rs. 200, according to the finding of the Munsif which has not been dissented from by the lower Court. The said Rs. 200 included a sum of Rs. 57-8 0 due to the first defendant himself under a Small cause decree obtained against Subramaniya Asari secured on immoveable property other than the plaint-property. The lower Appellate Courts found that the plaintiffs sale-deed was intended to be acted upon, that the plaintiff did get possession and that the defendant dispossessed him evidently as soon as the defendant obtained his sale-deed 16 months afterwards. The question which has to be considered on these fasts is, whether the plaintiff has got a title which will avail against the defendants title.

3. I am not inclined to decide the question on the mere possessory title whish may be set up on the plaintiffs behalf, as it raises the large question considered in Narayana Row v. Dharmachar 26 M. 514, which is, no doubt, in the plaintiffs favour, so far as the principals of that decision may be applicable to the facts of this case. The second defendant, being the son of the first defendant whose rights are shared by the second defendant. I have been using the term defendant" shortly to denote the first defendant.

4. The defendant relies upon Section 53 of the Transfer of Property Act, and contends that the plaintiffs transfer is voidable, at his (defendants) option as he is a person defrauded, defeated or delayed by the sale-deed in the plaintiffs favour. Now, Section 53 classifies the persons who may be defrauded by a transfer as follows: (1) a prior transferee for consideration; (2) a subsequent transferee for consideration; (3) a Co-owner having an interest in the property; (4) other persons having an interest in the property, and (5) creditors of the transferor. Now, the defendant can some in only under either of the two Classes (2) and (5), namely, either as a subsequent transferee for consideration, or as a creditor of the transferor. If he contends that he can avoid the transfer to the plaintiff as a subsequent transferee of Subramaniya Asari, he would have to establish that the prior transfer was intended to defeat his subsequent transfer. It is very difficult for a subsequent transferee to establish that a prior registered transfer deed was intended to defeat his subsequent transfer. Whatever may be the case in England where deeds of sale need not be registered, under the Indian Law most of the deeds of transfers relating to immoveable property have to be registered; registration is, prima facie, sufficient notice to subsequent transferees. A subsequent transferee with notice of the prior transfer would clearly be in a very difficult position when he seeks to esta