1. Several contentions are raised by Mr. Sesha Ayyangar for the appellant, but before considering them it is necessary to know whether the sale in favour of he plaintiff by defendant 3 evidenced by Exhibit B, was a nominal transaction or a real one. The Subordinate Judge, in para. 6 of his judgment, says:
there is no question about the sale to the plain-tiff being nominal, the only position taken up being that it was executed in fraud of creditors.
2. It is difficult to see how the Subordinate Judge came to make the remark that there was no question about the sale to the plaintiff being nominal. The plaintiff averre in his plaint that the sale was found to be nominal in O.S. 177 of 1912. The defendant, in his written statement, also stated that the sale was only a nominal one. In the written statement, in O.S. 177 of 1912 the defendant specifically pleaded that
the sale was colourable and not supported by consideration and was never intended to be operative, and never became operative, and was executed with a view to defraud creditors.
3. The District Munsif, on an examination of the evidence, found that the sale was a colourable or a nominal sale: vide Ex. D. On appeal the District Judge of Tinnevelly held, affirming; the decision of the District Munsif that Exhibit B was a colourable transaction (Exhibit 1). The second appeal by the plaintiff was dismissed: vide Ex. D-l. In the light of the contentions and findings in O.S. 177 of 1912 it is difficult to see how the learned Subordinate Judge came to make the remark: that 'there is no question about the sale to plaintiff 1 being nominal.' The Subordinate Judge has not considered the pleadings and the evidence in the case, and it is necessary, for a proper disposal of the case that there should be a definite' finding as to whether the sale evidenced by Ex. B is a nominal transaction and whether the transaction was a fraudulent one intended to defeat the creditors of the vendor. If the transaction is nominal certain considerations would arise. If it is a real but a fraudulent one, and if the plaintiff aided and abetted defendant 3 in the fraud, certain other considerations would arise. If it is only a voidable transaction under Section 53 some-other considerations would arise. I, therefore, direct the Subordinate Judge to record a finding on the following issues.
(1) Whether the sale under Exhibit B was intended to be a nominal transaction.
(2) Whether the sale under Ex. B was a real one intended to defraud or defeat or delay creditors.
(3) Whether the plaintiff aided and abetted defendant 3, the vendor, in trying to defeat, defraud or delay the latter's creaitors.
4. The finding, will be returned within one month from the date of the receipt of this order. Objections in seven days thereafter.
5. [In compliance with the order contained in the above judgment the Subordinate Judge of Tinnevelly submitted the following]
6. Issues 1 and 2-As there is an entire absence of evidence of such enjoyment and possession by plaintiff 1 in this case, I must come to the conclusion that the transaction in question was only a colourable and nominal one. Issue, 1 is, therefore, found in the affirmative and Issue 2 in the negative.
7. Issue 3.-Under the circumstances, it must be presumed that plaintiff 1 raided and abetted defendant 3 in his attempt to defraud his creditors by bringing into existence such a nominal sale deed, even though there is no direct evidence in the case to show that any-particular creditor was defeated or delayed or defrauded as the result of the combined action of plaintiff 1 and defendant 3. My finding on issue 3 is in the affirmative.