1. The only question argued by appellant before me is that of res judicata because of the decision in O.S. No. 151 of 1917 on the file of the Court of the Second Additional District Munsif of Coimbatore and A.S. No. 21 of 1918 on the file of the Court of the Subordinate Judge of Coimbatore.
2. In O.S. No. 151 of 1917 the present 1st defendant, the alienee, sued to establish her claim to the property sold to her by her brothers, which the present plaintiff had attached as the property of one of the brothers. The present plaintiff therein Contended that the sale was fraudulent and voidable under Section 53 of the Transfer of Property Act. On appeal A.S. No. 21 of 1918 the Subordinate Judge held that the sale was not an absolute sham, and that, as regards the plea of fraudulent transfer, the present plaintiff could not urge that in defence, without first suing to have the sale set aside, and there is no doubt that the law then stod so. Vide Palaniandi Chetti v. Appavu Chettiar (1916) M.L.J. 565 and Sub-ramania Ayyar v. Muthia Chettiar (1918) 41 Mad. 612. That Court, therefore, refused to go into the question of fraudulent transfer and on the technical point repelled the present plaintiff's defence and decreed the suit.
3. It is plain then that the decision in A. Section No. 21 of 1918 only decided that the sale was not a sham, and refused to decide whether it was a fraudulent transfer. Plaintiff's present suit to declare that the sale is a fraudulent transfer and have it set aside, was filed in accordance with the law as correctly laid down then by the Subordinate Judge in A. Section No, 21 of 1918 and it was filed while that law was still in force and before it had been upset by the Full Bench ruling in Ramaswami Chettiar v. Mallappa Beddiar (1920) 43 Mad. 760.
4. There is no point in arguing that the law when plaintiff filed suit must be deemed to have been the law as subsequently laid down in Bamaswami Chettiar v. Mallappa Beddiar (1920) 43 Mad. 760. If plaintiff's suit was not res judicata on this ground when it was filed, no change in the law can make it res judicata after it was filed.
5. It was contended that since the sale ex hypothesi fraudulent was voidable by plaintiff, his avoidance is sufficient in law to destroy 1st defendant's rights under it and renders the suit unnecessary. I confess myself unable to understand this argument or to conceive how 1st defendant's rights can be affected by a unilateral act of plaintiff.
6. It is quite clear to me that since no decision on the question whether the sale was a fraudulent transfer or not was given in A. Section No. 21 of 1918, no question of res-judicata on that point arises in this suit. Nor is there any question of res judicata as regards the form of the suit, since it is still, under the present law, open to plaintiff to bring his suit in the present form to avoid the sale.
6. The more important contention put forward is that, though the question of the sham nature of the document is ret, judicata and though the question of its fraudulent nature was the only question still open for trial, both the lower Courts have in fact decided that it was a sham and not a fraudulent transfer and have thus erred materially in law in re-trying a dead issue. The language of both Courts by insufficiently distinguishing between a sham transaction which passes no interest and a fraudulent transaction which does not pass an interest, no doubt lends some support to the contention. But in a careful perusal of the lower Court's judgment and its final conclusion that the sale was a 'fraudulent' one, I see no reason to remand the suit for a fresh finding. There is sufficient in the judgment of the lower Appellate Court on which to base its finding that the sale considered as a transfer was even so in fraud of creditors and, therefore, voidable.
7. I am not prepared to interfere, and dismiss this appeal with costs.