Deoki Nandan, J.
1. This is a plaintiff's Second Appeal in a suit for declaration that the property in suit, which is in the nature of agricultural land, is not liable to attachment and sale in execution of decree in Suit No. 131 of 1962 against the second defendant. The plaintiff and the second defendant are brothers. The land was sold for an ostensible consideration of Rs. 500/- by a registered sale deed, dated the 14th Sept. 1962 during the pendency of the said Suit No. 131 of 1962 by the second defendant to the plaintiff. After the decree in Suit No. 131 of 1962 the land was attached in execution Case No. 64 of 1966 and the plaintiff's objection under Order 21, Rule 58, C. P. C. being unsuccessful, he filed the suit giving rise to this Second Appeal.
2. The defence was that the sale deed was a fraudulent and sham transaction, and that the plaintiff and the second defendant lived jointly and the land in suit continued to be in their -joint possession. One detailed analysis and appraisal of the evidence on the record, the trial court held that the sale deed in favour of the plaintiff was a fictitious and sham transaction and had not been acted upon and had been made to defeat the claim of the first defendant and that the land continued to be in possession of the second defendant and was thus neither owned nor possessed by the plaintiff. The lower appellate Court confirmed the decree of the trial court and the finding recorded by it. It held that the ostensible consideration for the sale was grossly inadequate and that no payment of sale consideration was made and the sale transaction was not genuine, that the plaintiff and the second defendant lived jointly and the land was also continued to be jointly held and possessed by them.
The lower appellate Court further held that suit for money having been filed by the first defendant against the second, the latter transferred his entire holding for a grossly inadequate and fictitious consideration, and the only possible inference was that the transaction was fraudulent within the meaning of Section 53 of the T. P. Act and was made to defeat the creditor and that both the transferor and the transferees were parties to the fraud. In the end of its judgment the lower appellate Court reiterated that the sale deed was a sham and fictitious transaction, and that it was also the fraudulent transaction within the meaning of Section 53 of the T. P. Act.
3. Mr. R. P. Singh, learned counsel for the plaintiff-appellant, could not assail the concurrent findings of the two courts below that the consideration for the sale was grossly inadequate or that the transaction was sham and fictitious. But he urged that the finding that the sale deed was fraudulent within the meaning of Section 53 of the T. p. Act could be arrived at only in a suit by the creditor and unless it was so avoided by such suit, the transaction was good and valid. He emphasised that a transfer in fraud of creditors is voidable under Section 53 of the T. P. Act and until avoided by suit, which is of a representative character on behalf of all the creditors, the transfer is good and valid. He relied upon Ram Rai Singh v. Lal Chandra Pratap Singh. AIR 1941 Oudh 205 and contended that even a transfer without valuable consideration as a gift has to be proved to be fraudulent before it could be avoided under Section 53 of the T. p. Act, the mere fact of the execution of such a transfer or mere fact of its execution in anticipation of a decree, which may be passed or in anticipation of execution proceedings, is not necessarily a transfer made without intent to defraud, defeat or delay a creditor.
4. On the facts found by the two courts below in the present case, the question so raised by Mr. R. P. Singh does not call for a decision. It is sufficient for the purpose of the present case that the transfer was found to be sham and fictitious. The result of the fact found by the two courts below is that a transfer was only a make believe. In fact, no transfer took place and the property remained where it was. If that was so it was not necessary to invoke Section 53 of the T. P. Act at all for [holding that the property was liable to attachment and sale in execution of the decree in suit No. 131 of 1962 against the second defendant, as notwithstanding the apparent transfer, the property in fact continued to belong and remain in possession of the second defendant.
5. I may, however, observe that the object of making the transfer was obviously, in the facts of the case, to avoid the taking of the property in execution of the money decree in that suit and on the facts found the second defendant purported to transfer his entire holding. Such transfer is clearly fraudulent within the meaning of Section 53 of the T. P. Act and the lower appellate court cannot be blamed for having recorded tha' finding. As to avoiding the sale bv an act to the first defendant it is sufficient to note that the first defendant did get the property attached in execution of the money decree in his favour against the second defendant and he did succeed in avoiding the sale, inasmuch, as the objection to the attachment, which was filed by the first defendant (plaintiff ?) under Order 21, Rule 58 of the Civil P. C. failed and that led to the suit giving rise to the present Second Appeal. Under the circumstances, it cannot be said that the first defendant could not put forth the provisions of Section 53 for deciding the plaintiff's suit. There is nothing in the decision of the Oudh Chief Court in the case of Ramraj Singh (AIR 1941 Oudh 205) (supra) which may run counter to this position, of law.
6. The appeal fails and is dismissed with costs.