JUDGMENT

Baguley, J - It is unnecessary to set out the facts at length; because I agree with the decision of the lower appellate Court,--though, I fear, I must add that I agree with him for reasons quite different from the ones which he sets forward as the basis of his decision. The question to be decided is whether the appellant firm has proved that the transfers in question were made with intent to defeat or delay the creditors of Daw Shwe Sein. I may note here that in this particular case it seems that the appellant firm is the only creditor who has been referred to, and it has been strongly urged that the intent which is necessary to make a transfer invalid under Section 53, T.P. Act, must be one made with intent to defeat creditors generally, and not one particular creditor. In the present case, so far as the record goes, it would seem that the appellant firm was at the time of the transfer the only creditor, and, in consequence, it represented in itself the whole body of creditors. Therefore it would be quite permissible for it to sue by itself as representing the whole body of creditors.

2. As regards the point raised--although not exactly decided--by the learned District Judge at the end of his judgment, viz., that the suit is not maintainable in its present form in view of the new amendment to Section 53, T.P. Act, which states that a suit of this nature shall be instituted on behalf of or for the benefit of all the creditors, I would draw the learned Judge's attention to a passage from the judgment of the Hon'ble the Chief Justice in a similar case passed in Amir Khatoon v. Abdul Jabber Second Appeal No. 244 of 1932, which has not been reported. The facts in that case are very similar to the facts in the present case. No objection was raised to the maintainability of the suit under Section 53, T.P. Act, in its present form, but it was raised for the first time, as in the present case, in appeal, and in the present case I may note that the point was not raised in the memorandum of appeal, but seems to have been put forward in argument. The passage to which I refer runs as follows:

In the present case the appellant elected to go to trial without alleging in her written statement, or raising, by way of an issue, that the suit as framed was not maintainable by reason of Section 51, T.P. Act.... Having failed upon the merits at the trial the appellant in the Court of appeal raised for the first time the plea that the suit as framed was not maintainable, because it was brought by the plaintiff in his individual capacity and not ,on behalf of the general body of creditors. In my opinion it was too late for the appellant to late that plea for the first time in the appellate Court. Having elected to go to trial upon the footing that the plaintiff was entitled to bring the suit against nor, and having been content that the suit should be heard on the merits upon that basis, she was not entitled in the appellate Court to claim that the suit as framed was not maintainable by reason of Section 53, T.P. Act.

3. This suit therefore has got to be decided on its merits on the facts. It was for the appellant firm to prove that these transfers were made with intent to defeat or delay the creditors. It must be remembered that this intention has got to be proved. As was pointed out by their Lordships of the Privy Council in Maniklal Mansukbhai v. Bijoy Singh Dudhoria 1921 P.C. 69, in matters of this description, it is essential to take care that the decision of the Court rests not upon suspicion, but upon legal grounds established by legal testimony. In the case with which their Lordships were dealing the suspicion was indeed very, very great. Although on paper the appellant had a complete title, on six definite points mentioned in the judgment of the High Court of Calcutta and on certain other points raised in the appeal before the Board, there was grave suspicion that the transfer was not what it professed to be: nevertheless the Lordships