Lullubhai Shah, Kt., Acting C.J.
1. The plaintiffs in this case sued for a declaration that the sale-deed passed by defendant No. 1 to defendant No. 2 on January 4, 1921, was hollow and executed with the intention to defraud the plaintiffs and that therefore it was null and void. Plaintiff No. 1 had obtained a decree against defendant No. 1 in April 1921 and was a decree-holder against defendant No. 1 at the date of the suit. Plaintiff' No. 2 was a creditor but had not obtained a decree. It appears from the evidence that the plaintiff stated that the suit was on behalf of all the creditors of defendant No. 1. Defendant No. 1 did not appear to contest the suit. Defendant No. 2 contended that he was a true and bona fide purchaser for value, and that the deed was not executed with intention to defraud the plaintiffs. The first issue framed was : 'Is the sale-deed (Exhibit 17) dated January 4, 1921, executed to defraud and delay the plaintiffs and other creditors of the defendant No. 1 ?' Though defendant No. 2 contended in the written statement that lie was a bona fide purchaser for value, no issue appropriate to cover that plea was raised. But the second issue raised was: ' Are the plaintiffs entitled to the declaration as sought for ?' On the evidence the learned Judge found that there was no consideration, for the sale and that it was a nominal deed passed by the defendant in favour of defendant No. 2 who was his brother-in-law and that defendant No. 2 was nut in a position to buy the property of, that value. The learned Judge found in fact that the whole transaction was not real but hollow. The learned Judge was of opinion that as the suit was under Section 53 of the Transfer of Property Act that finding would not avail the plaintiff in the suit and accordingly dismissed the suit.
2. The plaintiffs have appealed to this Court. It is urged in support of this appeal that the finding of fact recorded by the lower Court on evidence is correct and that in view of that finding it should he declared that the sale-deed is void as against the creditors of defendant No. 1. It is contended that in view of that finding the conditions necessary to Invite the application of Section 58 are all satisfied, and that there in no reason why the suit should be defeated on such technical considerations as the lower Court hay accepted. On behalf of the respondents, the original defendants, it is not disputed and it cannot be disputed on the evidence, that thin transfer was effected by defendant No. 1 in favour of defendant No. 2 without any consideration. The mere fact that the plaintiffs succeeded in showing that it was really a hollow transaction does nut prevent the Court from considering whether the conditions of Section 53 are satisfied. It is clear that the plaintiffs are the creditors of defendant No. 1 and the effect of this transfer is to prevent the property from being reached by creditors. If this document stands, the property would not be available to the creditors of defendant No. 1 and the effect of the transfer would be to defeat or delay the creditors of defendant No. 1. Though in the written statement a point was made that defendant No. 2 was a transferee in good faith and for consideration, there was no issue on that point raised in the lower Court, and it is clear that there is no need for that issue because consideration cannot be proved. Having regard to the relationship between defendant No. 1 and defendant No. 2 and the circumstances under which the document came to be transferred, good faith also is out of question. The mere fact that the transaction is hollow does not make it less a transfer of immovable property within the meaning of Section 53. We think, therefore, that the lower Court was wrong in dismissing the suit. We allow this appeal, reverse the decree of the trial Court and declare the document dated January 4, 1921, between defendant No 1 and defendant No. 2 to be void as against the plaintiffs and other creditors of defendant No. 1.
3. Plaintiffs to have their coats from the defendants.