Shiv Dayal, J.

This first appeal arises out of a suit instituted by the attaching decree-holder under Order 21, Rule 63 of the Code of Civil Procedure.

One Surat Singh was indebted to Badrilal Plaintiff. On Surat Singh's death his estate consisting of a house and some Zamindari property came in the hands of his widow Kasturi Bai. On January 18, 1946, Badrilal instituted a suit for the recovery of Rs. 2,200 against Kasturi Bai in the Court of District Sub-Judge, Ujjain, (Civil Suit No. 139 of Samvat 2002). A decree was passed in favour of Badrilal on June 28, 1948 against Kasturi Bai, to the extent of the estate received by her from her deceased husband. The decree was transferred to the Court of Civil Judge, First Class, Shajapur, for execution. In Execution Case No. 270 of 1952 Badrilal got the suit house and land attached. An objection petition was filed under Order 21, Rule 58 of the Code of Code of Civil Procedure by Ramgopal and Ramchandra Appellants before us. They succeeded and the property was released from attachment. The objection petition was based on a sale deed dated January 22, 1947, whereby Ramgopal and Ramchandra had purchased the suit property from Kasturi Bai. Aggrieved by the order releasing the property from attachment, this suit was instituted by Badrilal against Ramgopal and Ramchandra, successful objectors; and Kasturi Bai, the third Defendant. The learned trial Judge held that the sale in favour of Ramgopal and Ramchandra was fictitious. He, therefore, held that the sale deed dated January 22, 1947 was ineffective so far as the Plaintiff was concerned. It is against this judgment and decree that the Defendants Ramgopal and Ramchandra have come up to this Court in appeal.

Shri Gokhale, Learned Counsel for the Appellants first of all made an endeavour to show that the property, which was attached by the decree-holder Respondent did not belong to deceased Surat Singh and was, therefore, not liable to attachment. But this objection cannot be heard because there is no such allegation either in the written statement nor in the memorandum of appeal here. Kedarmal, P. W. 1 stated that the property belonged to Surat Singh and he was not cross-examined on this point.

The main question in this appeal is whether the sale in favour of the Appellants was a fictitious one. I quite see that in the Court below some confusion existed all along and Section 53 of the Transfer of Property Act was referred to. That section really applied to a transfer where a sale is valid and effective for all purposes until it is set aside on the ground that the same was made with intent to defraud or delay the creditors of the transferor. Such a transfer is void at the option of the creditors who are defrauded; it is otherwise valid and binding on the transferee. On the other hand, there are cases of colourable transfers or benami transfers which are merely sham; they are not meant to be operated between the parties. So called transfers of the second category are no real transfers although they appear to be so. The two categories should never be confused. In the first case there is a transfer, valid and operative although voidable at the option of the creditors; while in the second case there is no transfer but the property is merely shown as transferred often for the purposes of defrauding creditors. This distinction is sometimes lost sight of. The difference is distinct though it is often slurred, as observed by Sir Lawrence Jenkins in Mina Kumari Bibi v. Bijoy Singh 44 1 A 72 = ILR 44 Cal 662.

In the present case the allegations in the plaint clearly indicate that the Plaintiff asserted the sale in favour of the Appellants to be fictitious and sham transaction. It is stated in paragraph 4 of the plaint "Uprokt prativadi sankhya 3 prapya dhan wasul nahin hone dene ho mirt Surat Singh ki chhodi hui sampatti Makan, zamindari, tatha krish bhumi ka antaran pharzi wa numayishi ker diya". Defendants Nos. 1 and 2 were alleged to be related