(Krovi) Subba Rao vs (Dhulipala) Narasimham and Others

Coutts-Trotter, C. J.

The plaintiff is the appellant here and he lost his suit because both the lower Courts have found as a fact that the document on which he relied as

showing his title to the property was not merely a voidable instrument as being executed to defraud creditors, though a real transfer properly made,

but was a. colourable transaction throughout leaving all the beneficial interest of possession in the property in the assignor. That being so, it would

be covered not merely by the Full Bench decision in Bamaswami Chettiar v. Mallappa Reddiar [1920] 43 Mad. 760 but it would be covered by

my own judgment in Palaniandi Chetty and Others Vs. M.V. Appavu Chettiar and Others, where I guarded myself expressly by saying that had

the transaction been a merely colourable one the plaintiff would not have succeeded in his action. The further point that I held, that in cases where

the transaction was not void, but merely voidable the plaintiff''s remedy was merely to bring proceedings for the express purpose of setting aside

the transaction for the benefit of himself and all other creditors, has been disapproved by the Full Bench, and all that is necessary to point out is that

the Full Bench decision on that point does not arise in this appeal. From that point of view it is obvious that there were ample materials for the

learned Judges below to find as they did, and this second appeal involves, as so many second appeals do, when you get to the real point, a mere

question of fact with which I have no jurisdiction to deal. The second appeal must be dismissed with costs of the 4th respondent.