Krishnaswami Aiyangar, J.
1. The disputes which have given rise to these appeals relate to a fund in Court standing to the credit of O.S. No. 33 of 1924 on the file of the Sub-Court, Kumbakonam. It is a sum of Rs. 2,983-2-6 representing the value of the share of one Adamsa Rowther in a rice mill situated in Pandaravadai village. Adamsa died in 1919 involved in debts, but he had left considerable properties in and round Pandaravadai. He appears to have carried on a business in Saramban in the F. M. S., which was after his death taken over by his son-in-law, Abdul Rahiman, and continued by him. Kadir Bacha was a brother of Adamsa who has figured prominently in the arrangements made by Adamsa's heirs for the discharge of his debts. These heirs, were Noor Muhammad and Muhammad Ibrahim his sons, Mohideen Bivi a daughter, and Zuleka Bivi his second wife. A major portion of his properties was transferred by them to their uncle Kadir Bacha on 28th May, 1922, by a deed which shows that except for a comparatively small amount, the consideration of Rs. 35,000 was the undertaking by the transferee to pay and discharge the debts of the deceased. There were also certain other transfers by the heirs, but for the purpose of these appeals it will be sufficient if we refer in particular to the one on 5th August, 1923, of Adamsa's interest in the rice mill to his son-in-law Abdul Rahim. It may at once be mentioned that this transfer is attacked by the appellant in C.M.A. No. 420 of 1935 as a nominal one, not intended to pass title to the property, but was brought about solely for the purpose of screening it from the creditors and for the secret benefit by the heirs.
2. At the time of this transfer there were admittedly disputes regarding the rice mill, Adamsa's heirs claiming his half share, his partner Mandia Esumsa vigorously denying it. After his purchase, steps were apparently taken by Abdul Rahim to assert his rights against Esumsa, and they resulted in criminal proceedings between the parties which were finally settled by a reference to arbitration. An award was passed on 9th December, 1923, by which Esumsa and his son were directed to pay a sum of Rs. 3,000 and odd to Abdul Rahim. This amount was however not paid, and it therefore became necessary for Abdul Rahim to institute O.S. No. 33 of 1924 for the recovery of the money. While the suit was pending Mohideen Bivi his wife died and thereafter the feelings between him and her brothers became strained, so much so that Noor Muhammad felt it necessary to institute criminal proceedings against Abdul Rahim. These proceedings, it is clear from the complaint QQ, had reference to a claim against Abdul Rahim due to a withholding by him of certain valuable securities appertaining to Adamsa's estate including a business letter relating to a rice mill in India which was obviously none other than the mill at Pandaravadai. A settlement was ultimately arrived at on 16th March, 1927, evidenced by a writing Ex. PP signed by Abdul Rahim, Noor Muhammad and Kadir Bacha. By it Abdul Rahim undertook to pay Rs. 1,000, and 50 to Noor Muhammad in full settlement of the pronote and dealings of Adamsa and to give a transfer of the rice mill in favour of Kadar Bacha, who was at this date on terms of cordiality with Noor Muhammad. In pursuance of this compromise, Abdul Rahim executed the transfer on 17th March, 1927, conveying his interest in the rice mill then under litigation in O.S. No. 33 of 1924, for an alleged consideration of Rs. 3,000. Thereupon, Kadir Bacha brought himself on the record in place of Abdul Rahim, and finally obtained a decree by consent for a sum of Rs. 2,900, against which a sum of Rs. 2,983-2-6 has been deposited into Court on 29th October, 1929, by the judgment-debtors but not before the issue of process in execution. As we have said the true ownership of this fund is the question that has to be decided in the appeals. Kadir Bacha having died on 29th November, 1929, his heirs claimed payment to themselves. This claim is opposed by Minakshi Aiyar who is the appellant in C.M.A. No. 420 of 1925.
3. Minakshi Aiyar's claim arises out of an attachment of the identical fund in execution of the decree obtained by him in O.S. No. 32 of 1925, on the file of the Sub-Court of Ramnad. This suit was one filed by his father Ayyavu Aiyar for the recovery of a stun of Rs. 16,000 or thereabouts due on dealings between him and the deceased Adamsa. The heirs of Adamsa as also his brother Kadir Bacha were joined as defendants the claim so far as the latter was concerned being based on his undertaking to pay a sum of Rs. 5,500 to Ayyavu Aiyar, contained in the sale deed of 28th May, 1922, already referred to. On the death of Ayyavu Aiyar pending the suit, Minakshi Aiyar his minor son, was substituted in his place. On 10th September, 1927, a decree for Rs. 16,369-5-6 was passed against the heirs of Adamsa, and for a portion of it, namely, for Rs. 7,788-14-0, Kadir Bacha was made liable. Kadir Bacha discharged his liability by payment of a sum of Rs. 9,945-14-0 into Court, part of the sale proceeds of a property which he had purchased from Adamsa's heirs as already mentioned. There still remained a balance of over Rs. 11,000 to be realised, and execution of the decree had therefore to be taken out. There was first a transmission of the decree to the Tanjore Sub-Court, and later the decree was transferred to the Sub-Court, Kumbakonam, the very Court which held in its custody though to the credit of a different suit, namely, O.S. No. 33 of 1924, the sum of Rs. 2,983-2-6 referred to above. E.P. No. 172 of 1929 is the execution petition of Minakshi Aiyar, seeking attachment and payment out of the money as being an asset of Adamsa on the allegation that the transfer first to Abdul Rahim and afterwards to Kadir Bacha was not supported by consideration and was but an attempt by Noor Muhammad and the other heirs of Adamsa to keep the property in the names of relations, so as to evade the creditors, and secure it for themselves after the disputes were over. An attachment was accordingly made on 9th October, 1929. The opposing claimants were the legal representatives of Kadir Bacha - he seems to have died on 29th November, 1929 - who filed E.A. No. 163 of 1930 contesting the attachment on the ground that the fund in Court absolutely belonged to them and not to Adamsa's heirs who had according to them no interest whatever in it. The Sub-Judge who heard both the petitions together has dismissed E.P. No. 172 of 1929 and allowed E.A. No. 163 of 1930 holding that both the transfers the first to Abdul Rahim, and the second in favour of Kadir Bacha, were real and not merely colourable transactions, and that the money truly belonged to Kadir Bacha, and after his death to his heirs who have since sold their right to one Dawood Mohideen. Minakshi Aiyar the decree-holder has preferred these appeals C.M.A. Nos. 420 and 421 of 1935 against the said order.
4. This is a somewhat long narrative, but it is necessary to set it out in order to understand the nature of the dispute. It will be seen that the lower Court as the custody Court held the fund to the credit of O.S. No. 33 of 1932 and was at the same time moved to execute the decree in O.S. No. 32 of 1925 passed by the Ramn ad Sub-Court but transmitted to it for execution. A preliminary objection to the maintainability of these appeals was taken by the respondents' learned Advocate. The argument if we followed it rightly was this. Under Order 21, Rule 52, Civil Procedure Code, any question of title or priority between the decree-holder and any other person not being the judgment-debtor claiming to be interested in the attached property by virtue of any assignment, attachment or otherwise has to be determined by the custody Court. It was said that the Kumbakonam Sub-Court which was the custody Court had no doubt jurisdiction to determine the question but it could do so only in O.S. No. 33 of 1924 in which the money was realised and brought into Court, and not in O.S. No. 32 of 1925 in which the appellant was seeking execution. Even if the Court purports to have dealt with it in O.S. No. 32 of 1925 it must be deemed to have done so only in O.S. No. 33 of 1924 as it is in respect of that suit alone the Court can be regarded as the custody Court. Proceeding on this footing it was next urged that the order under appeal must be deemed to have been made in O.S. No. 33 of 1924, a suit to which neither Minakshi Aiyar nor his father Ayyavu Aiyar was a party, for the purpose of Section 47, Civil Procedure Code and, not being a party he had no right of appeal under that section, nor under Order 43, Rule 1, which contains no provision for an appeal in favour of a stranger such as Minakshi Aiyar was. We are clear that there is no substance in this objection. The order in question was one undoubtedly made in O.S. No. 32 of 1925 as the cause title to it plainly shows, and was at any rate allowed to be so made without any objection by the respondents. It is now too late to permit such a purely technical objection to be raised. We may also observe that all that the rule directs is that the custody Court should be the Court to determine the dispute and the lower Court had, in our opinion, sufficient jurisdiction as it had the fund in its custody. We see no warrant in the Code, for holding that the dispute must be or must be deemed to have been dealt with and determined only in the one suit rather in the other, so long as it is the custody Court that has enquired into it. We are accordingly of opinion that under Section 47, Civil Procedure Code, which we hold is applicable to this case, the appellant has a right of appeal, and overrule the preliminary objection.
5. Coming now to the merits, it is necessary before entering on a discussion of the facts to advert to a point of law which has found favour with the learned Subordinate Judge. He has held that an executing Court cannot, having regard to the ruling in Palaniappa Chettiar v. Subramania Chettiar (1924) 48 M.L.J. 419 : I.L.R. 48 Mad. 553 go into the question whether the fund in Court really belonged to Adamsa's heirs and only stood benami in the name of Kadir Bacha. According to him the person whose name appears as the decree-holder must be held to be the person really entitled to the fruits of the decree and whatever claims Adamsa's heirs or creditors may have against Kadir Bacha in other proceedings, in execution proceedings the plea of benami cannot be accepted. He therefore came to the conclusion that it was Kadir Bacha's heirs who were entitled to draw the amount in Court. After carefully considering the decision reported in Palaniappa Chettiar v. Subramania Chettiar (1924) 48 M.L.J. 419 : I.L.R. 48 Mad. 553 and Order 21, Rule 16 of the Civil Procedure Code on a construction of which, it is based, we are unable to agree with the view taken by the learned Subordinate Judge. It may be sound policy to discourage benami transactions in general tending as they very often do, to the effective concealment of fraud to the embarrassment of Courts. But unless statutorily bound, the Court must continue to do its duty of unravelling the truth however cleverly hidden by false or fictitious trappings, and administer justice according to the true rights of parties such as they may be found to be on enquiry. It may again be a desirable end to thwart the attempt frequently made by unscrupulous debtors to throw obstacles in the way of a successful litigant realising the fruits of his decree, and prevent the Court from being side-tracked into a long and tedious enquiry having the effect of delaying or defeating a bona fide decree-holder. Even if such were the obvious purpose of the obstruction, the Court must still do its duty by holding the enquiry and get at the truth, subject no doubt to such rules of procedure as the legislature has laid down. In the present instance, we find nothing in the language of Order 21, Rule 16, lending support to the view that the Subordinate Judge has taken. By that rule the transferee of a decree by assignment in writing or by operation of law is entitled to apply for execution of the decree subject to the conditions mentioned in the section. The question may arise by way of a corollary, and did arise in Palaniappa Chettiar v. Subramania Chettiar (1924) 48 M.L.J. 419 : I.L.R. 48 Mad. 553 whether any person other than the transferee can apply under the section. In that case a person who claimed to be the real owner of a decree which had been, it was found at his instance, transferred to his agent, made the application, and it was held that he had no right to make it, as Order 21, Rule 16 did not give him the right. Srinivasa Aiyangar, J., observed:
It seems to me that Order 21, Rule 16 is perfectly clear on the point. It speaks of the decree being transferred by assignment in writing or by operation of law, and provides that in such cases the transferee may apply for execution. When the statute speaks of 'an assignment in writing' and 'the transferee' the proper construction of the words would necessitate our holding that the transferee referred to is the transferee named as such in the assignment in writing. To hold otherwise would be not to give proper effect to the words of the statute.
6. As explained by the learned Judge the decision purports merely to give effect to a principle implicit in the language of the rule which in terms recognises a right in the transferee only to apply for execution and it was held that he alone and none other, whatever his true position or right may be, that could take advantage of the rule for the purposes of execution. With that proposition we are inclined respectfully to agree, but we must however express our dissent to certain other observations which occur at pp. 558 and 559 of the report if by them the learned Judge intended to lay down as a universal rule that it is not open to the Court in execution to enquire into questions of benami, and adjust the rights of parties according to its findings. The observations are these:
It is also clear that the Civil Procedure Code did really intend to prevent benamidars coming, in and making applications to the Court on the general basis of the law relating to benami transactions.... It would lead to very serious consequences if we should allow the law of benami to have any operation with regard to suits and proceedings and records of Court and if only on that ground, it would be desirable to disallow any such contention.
7. The language here employed is very wide, suggesting as it does that it would be proper to ignore a plea of benami if it tends to affect suits, proceedings and records of Court. The facts of the case itself did not, so far as we could see, call for such a sweeping observation and we are unable with the utmost respect, to treat it as any better than an obiter dictum. The learned Judge himself in this connection refers in support of the proposition, only to Section 66, Civil Procedure Code, which in terms limits the prohibition to an attack on the title of the person claiming title under a purchase certified by the Court, and expressly saves the right of a third person to proceed against the property ostensibly sold to the certified purchaser if in fact and in truth it is liable to satisfy a claim of such third person against the real owner. We cannot see any warrant in the provisions of the Code for enlarging the prohibition so as to cover suits and proceedings or the records of Court in general. To do so would result in many cases in the promotion and not in the suppression of fraud. Provisions of this character restrictive as they are of the rights of parties and the jurisdiction of the Courts, should, we think, be strictly construed, and ought not to be extended beyond the plain language of the rule. In this connection it would be apposite to quote the observations of the Privy Council in Mussumat Buhuns Kowur v. Lalla Buhooree Lall (1872) 14 M.I.A. 496 :
It is well known that benami purchases are common in India, and that effect is given to them by the Courts according to the real intention of the parties. The legislature has not, by any general measure, declared such transactions to be illegal; and therefore, they must still be recognised and effect given to them by the Courts except so far as positive enactment stands in the way, and direct a contrary course.
8. After referring to the enactment contained in Section 260 of the Code of 1859 corresponding to Section 66 of the present Code, and stating that it was clear and definite and was confined to a suit against the certified purchaser their Lordships went on to say:
The present suit which is the converse of that pointed at in the section, is not within the words or scope of it.
It would be especially unsafe so to construe the Act as by inference to import into it a prohibitory enactment which would exclude any enquiry into the truth in any suit between the parties.
9. Though their Lordships were dealing with a suit, we think there can be no difference in the principle to be applied whether it is a suit, or an execution proceeding, and we accordingly hold that there is no legally valid objection to an enquiry into the merits of the present case.
10. Coming to the facts, the transfer by Adamsa's heirs to Abdul Rahim is evidenced by Ex. A, and the one by Abdul Rahim to Kadar Bacha by Ex. III. As we have already said Adamsa died in. 1919 in embarrassed circumstances though he left considerable properties. Kadar Bacha the brother, and Abdul Rahim the son-in-law were among the persons who would obviously take an interest in winding up the affairs of the deceased and help the heirs to make the necessary arrangements. Both of them were and have been on terms of the utmost cordiality with Noor Muhammad the eldest son who in his turn would naturally look up to them for help and guidance. It is true that there were differences between him and Abdul Rahim in 1927, but the nature of the disputes as disclosed in the complaint Ex. QQ and in settlement PP only emphasises the degree of confidence that previously existed between them. In 1922 sale-deeds of parcels of Adamsa's properties seem to have been executed. The most important among them was Ex. B the transfer in favour of Kadar Bacha comprising the major portion, as we have already said, of the properties of Adamsa; but the rice mill was not among the items included. That was due very probably to the fact that the other partner Esumsa was, though improperly, disputing the claims of the heirs. If therefore they were minded to save something for themselves out of the wreck, it is not improbable that Kadar Bacha and Abdul Rahim would readily lend themselves to such a scheme. While this circumstance cannot be ignored, it is by itself in our opinion of little value as a basis for a decision. The learned Sub-Judge has found that Ex. A is supported by consideration, though that finding is expressed in terms which suggest that it was not an absolute one but given only for the purposes of the proceedings before him. However that may be, we are unable to share his view on this point, in view of the circumstances to which we shall presently advert. It is unfortunate that the learned Judge failed to pay sufficient attention to what we consider to be the most material evidence in the case, namely, the evidence afforded by the account books maintained by Kadar Bacha and by the conduct of the parties concerned.
11. The consideration for Ex. A was Rs. 2,000 according to the recital in it, out of which Rs. 700 is said to have been in cash, the balance having been previously paid for discharging the balance of the debts due to (1) Vidwan Rajagopalachariar, (2) Chidambaram Chettiar, and (3) Govindaswami Chetti. By Ex. B dated 28th May, 1922, provision had already been made for payment of these debts, among others, by Kadar Bacha the purchaser undertaking out of the consideration payable for the sale, to discharge them. It is argued for the appellant that the recitals of consideration in Ex. A are all false, made with a view to lend a colour of reality to a purely fictitious and sham transaction. There is force in the argument, for we find from the evidence that neither Abdul Rahim the alleged purchaser nor Noor Muhammad or any of his co-heirs appear to have made any of the payments which discharged these debts. As regards the first of these debts it was Ibrahimsa the purchaser of a portion of the land conveyed to Kadar Bacha under Ex. B that paid Rs. 3,000, and Kadar Bacha himself the balance of Rs. 20, both payments being endorsed on the document on 10th November, 1922. For the second of the debts, it was Kadar Bacha who paid the whole of it on 19th June, 1923. It is not quite clear who made the payment in respect of the third defendant, though there is the evidence of the creditor's clerk to the effect that Noor Muhammad and Abdul Rahim made it. This evidence we hesitate to accept as it is based merely on memory, uncorroborated by the entries in the account books of the creditor. Abdul Rahim between whom and Noor Muhammad the old friendly relationship seems to have been re-established has no doubt sworn that he did pay to Noor Muhammad Rs. 1,300 in instalments prior to Ex. A and Rs. 700 in cash on the date of the document. He has deposed that he brought Rs. 2,000 from the F.M.S. when he came to his village about the time of the transaction but had to admit that he kept accounts which would show it but which he did not produce. In the absence of his account books which would afford the best evidence on the point we think it would be unsafe to act on the uncorroborated testimony of this witness who is obviously interested in supporting his brother-in-law Noor Muhammad. Noor Muhammad himself was kept out of the box, and it is apparent that he did not like to face cross-examination on several matters to which he has been a party, and for which he alone could give a satisfactory explanation. Dawood Sa an attestor of Ex. A, speaks to Noor Muhammad's admission of the receipt of the consideration, but he was a working partner and clerk of Kadar Bacha who if the appellant's case is true was in the conspiracy with Noor Muhammad. To the same effect is the evidence given by another attesting witness who is a brother-in-law of Abdur Rahim. Neither of these two persons can be regarded as independent witnesses not subject to the influence of Abdul Rahim or Kadar Bacha. On this evidence it cannot be said that consideration for Ex. A has been made out, and we must accordingly differ from the learned Sub-Judge on this point. The learned Judge also says that there is nothing to indicate that the payments were made from out of the estate of Adamsa. But the more important circumstance is that Abdul Rahim is not shown to have paid. If Kadar Bacha or Noor Muhammad paid the money why did they, instead of Abdul Rahim, do so? What interest had they at the time? If we remember that the assets of Adamsa were with Noor Muhammad or Kadar Bacha and that Kadar Bacha, very likely, took over the property not for the purpose of owning it for himself, but for the purpose of putting the affairs of Adamsa in order by paying his debts, there is nothing unreasonable in the argument that the consideration really came from Adamsa's estate. We are unable to follow the argument of the learned Judge that because Adamsa was in involved circumstances, no payment could have been made by his heirs or from his considerable estate.
12. The learned Judge is of opinion that it has not been satisfactorily explained why this benami or fraudulent transaction had been made; and has said that because a man was in involved circumstances it did not follow that he could not execute any sale deeds. We think that these observations are unsound and irrelevant. For, the purpose of the transaction, is not difficult to find. It was none other than to defeat the appellant who was a creditor entitled to recover a large sum of money, to the knowledge of all the parties concerned, and this is indeed the appellant's case. Abdul Rahim himself made the somewhat significant admission in his evidence, namely, 'Noor Muhammad told me that he owed large debts and that attempts were being made to sue him and attach the properties and asked me to purchase the mill.'
13. If in these circumstances he took the property without paying any consideration for it, the inference is too obvious to require any further explanation. Further a person in involved circumstances may legitimately sell his property if he acts bona fide but if his object is to defeat his creditors the sale is liable to be set aside for the benefit of the creditors.
14. As regards Ex. 111, we may observe that it. was executed while O.S. No. 32 of 1925 was pending, in pursuance of the arrangement evidenced by Ex. PP to which we have already referred. This was an adjustment of the disputes between Noor Muhammad and Abdul Rahim in regard to what formed a part of Adamsa's estate. The settlement was we think that Noor Muhammad should have it back for himself. Kadar Bacha, Noor Muhammad and Abdul Rahim were all at Saramban in the F.M.S. at the time, and Kadar Bacha was espousing the cause of Noor Muhammad against Abdul Rahim, as is evident from QQ the criminal complaint from which it is apparent that Noor Muhammad had been acting in close consultation with Kadar Bacha. He was also a signatory to the settlement deed itself. Further there was no occasion or need at the time for Abdul Rahim to make a sale of the mill to Kadar Bacha and none is even hinted at in Ex. PP. It only speaks of a transfer to be made in favour of Kadar Bacha. On the very next day the transfer Ex. III was executed with recitals of consideration making it appear that it was a sale for Rs. 3,000. It is very unlikely that Kadar Bacha had any money in his hands, and much more unlikely that he would have desired to invest such a large sum of money on a property under litigation. It is unfortunate that the evidence of neither Kadar Bacha nor of Noor Muhammad is available, as the one died before the trial and the other purposely kept out of the witness box. They are the persons whose evidence would be most valuable for a decision of the case. We think however that whatever doubts there may still be in the appellants' case are all dispelled by the account books of Kadar Bacha which furnish cogent and almost conclusive evidence of the true nature of the transaction. In these books there are various credits and debits to an account opened in the name of Noor Muhammad and covering the period between July, 1922, and April, 1929. The entries relate to the receipt of rents from the lands conveyed under Ex. B, to the price realised by sale of a portion of these lands by Kadar Bacha under Ex. N on 12th December, 1927, and to the payment into Court in O.S. No. 32 of 1925 of Rs. 9,945-14-0 in discharge of his liability under the decree. Except on the footing that in spite of Ex. B, Noor Muhammad continued to be the owner, it is impossible to understand these entries. What is still more remarkable, is the existence of entries in the books showing that right from the beginning, from August, 1923, onwards, expenses incurred in connection with O.S. No. 33 of 1924 were all debited to Noor Muhammad and this system continues even after the so-called purchase by Kadar Bacha in March, 1927. The inwardness of the two transactions Exs. A and III plainly appears from these accounts. They unmistakably point to the fact that neither Abdul Rahim nor Kadar Bacha was the real owner and that the real owner was no other than Noor Muhammad. It was on this footing that the parties appear to have dealt with each other as between themselves whatever blinds they thought it expedient to adopt towards the outside world in general and the creditors in particular. It is impossible to get rid of the effect of the entries in the accounts by saying that they merely throw some doubt on the nature of Exs. A and III, or finding in spite of them that consideration must be held to have passed and so they must be held as genuine transactions. The criticism that these documents were not challenged by the appellant or his father in O.S. No. 32 of 1925, is meaningless; for, in a money suit such as it was, no occasion could arise for impugning them till after decree. Nor can we see any point in the observation that Kadar Bacha would not have taken a sham or colourable transfer during the pendency of the suit when the heirs of Adamsa were also parties to it. Kadar Bacha was a close relation in whom Adamsa's heirs had implicit trust, and it would have been by no means easy to find another person who would be a willing instrument for effectuating the fraud and at the same time be loyal enough not to take advantage of it for his own benefit later. Differing from the learned Sub-Judge we hold that both Exs. A and III represent benami transactions brought about for the purpose of helping Noor Muhammad and the other heirs to retain for themselves the value of the property seemingly conveyed under them and that the decree-holder in O.S. No. 32 of 1925 is entitled to obtain satisfaction out of the fund in Court standing to the credit of O.S. No. 33 of 1924. We accordingly accept both the appeals, allowing E.P. No. 172 of 1929, and dismissing E.A. No. 163 of 1930 with costs here and in Court below, one set in C.M.A. No. 420 of 1935. The costs paid by the appellant to the Court guardian for fees and purchase of printed papers will be included.