Judgment :- The decree-holder in O.S. No. 981 of 1108 on the file of the District Munsiff of Kottayam is the appellant before this Court. The suit was for money based upon a deed of hypothecation. The amount sued for was sought to be realised by sale of the hypotheca as also from the other properties of the debtor who was impleaded in the suit as the first defendant. Subsequent to the deed of hypothecation sued upon, the debtor, first defendant, executed a document Ext.1 called a partition deed in favour of the second defendant who is his wife as also his son by an earlier wife who is impleaded as the third defendant. All the properties of the first defendant were transferred to defendants 2 and 3 under this document which refers to a list of moveables and of certain debts to be discharged by the donees. Defendants 2 and 3 were impleaded in the suit on the ground that they were interested in the hypotheca that was sought to be sold in the case. That interest obviously arose on account of Ext. 1. Soon after the suit was filed, the plaintiff applied for and obtained an attachment before judgment of four items of immovable property included in Ext. 1. The attachment was levied in the year 1108. After notice, the rule was made absolute. In due course a decree was passed in the case. Nothing was done in respect of this attachment until the year 1122 when the second defendant came to court with a petition called a claim under 0.21, R.56 of the Travancore Civil Procedure Code objecting to the attachment and claiming title to items 3 and 4 in the schedule to the attachment order as her own, she having obtained tittle thereto under Ext. 1. The learned Munsiff found that the petition was not maintainable as a claim because the party objecting to the attachment was the second defendant in the case and claims under 0.21, R.56 can be made only by strangers. The learned Munsiff, however, considered the petition as an objection by a party under S. 40 of the Travancore Civil Procedure Code. Considering the objection as one under S. 40, the learned Munsiff found that Ext.1 which is the basis of the objection was a sham transaction and dismissed the objection. The learned Munsiff, however, considered the petition as an objection by a party under S. 40 of the Travancore Civil Procedure Code. Considering the objection as one under S. 40, the learned Munsiff found that Ext.1 which is the basis of the objection was a sham transaction and dismissed the objection. Against the order of the learned Munsiff, a Civil Miscellaneous Appeal was filed in the District Court of Kottayam. That was C.M.A. No. 63 of 1123 of the Kottayam District Court. The learned judge in considering that C.M.A. did not agree with the Munsiff that Ext.1 was a sham transaction. The learned judge found, believing the evidence of the witnesses examined in the case, that the properties to whose attachment objection was raised by the second defendant were in her possession and on the view that the only question for consideration in a claim is one of possession, the learned judge upheld the objection and allowed the Civil Miscellaneous Appeal. This Second Appeal is preferred by the plaintiff decree-holder against the order passed by the learned District Judge. 2. The view taken by the learned Munsiff that Ext.1 is a sham transaction is erroneous and cannot be upheld because even according to the plaintiff decree-holder, Ext.1 was an effective transaction and it did operate to create some interest in favour of defendants 2 and 3 and it was on that basis that defendants 2 and 3 were impleaded in the suit as persons having some interest in the hypotheca which was sought to be sold. The transaction will be a sham only if it is of no effect at all. A transaction which is in fraud of creditors is a real transaction, not a sham transaction. The view of the learned District Judge that in this case the only question to be considered is one of possession is also erroneous. The transaction will be a sham only if it is of no effect at all. A transaction which is in fraud of creditors is a real transaction, not a sham transaction. The view of the learned District Judge that in this case the only question to be considered is one of possession is also erroneous. Unlike the case of a claim by a stranger to the proceedings under 0.21, R.56, where the question really is one of possession by the claimant on his own account and not on behalf of the judgment-debtor, wherein an original suit will lie by the aggrieved party to establish the right that he claimed, in the case of an objection by a party to the proceedings to the attachment of the properties, that objection is to be regarded as a question arising for consideration under S.40 of the Civil Procedure Code and in that case not merely the question of possession but the question of title also must be adjudicated and decided and that is why in the case of an objection by a party against the order passed by the first court there will be an appeal and a second appeal. It is not known how regarded as an order under S.40, a Civil Miscellaneous Appeal was filed before the District Court. The proper procedure would have been to file an appeal. But that irregularity of procedure is immaterial in the present case as no objection is taken by any party based on that circumstance and no question of jurisdiction arises. 3. The attachment before judgment was applied for by the party and issued by the court on the basis that the hypotheca was insufficient to satisfy the plaintiff's claim. The apprehension of the plaintiff has proved to be true, because the hypotheca was afterwards sold and the proceeds of the sale have been found to be insufficient to satisfy the claim of the decree-holder. Ext.1 under which the debtor, the first defendant, appears to have assigned all his properties in favour of defendants 2 and 3 does not make provision for discharge of the debt due to the decree-holder. It might have been a secured debt. But there was yet the possibility of the security proving insufficient and need arising for resort to the other properties of the debtor. It might have been a secured debt. But there was yet the possibility of the security proving insufficient and need arising for resort to the other properties of the debtor. No provision having been made for discharge of the debt due to the decree-holder under the deed of hypothecation, the transfer made in favour of defendants 2 and 3 under Ext.1 is prima facie in fraud of creditors. It is not disputed that besides the decree-holder there were other creditors of the first defendant. It is not also necessary that in order that, a transfer may be in fraud of creditors there should be more than one creditor. Even if a transaction is directed to defrauding one creditor alone, it would still be one in fraud of creditors voidable by the creditor sought to be defrauded or delayed. 4. The learned counsel for the respondent contended that if the transaction evidenced by Ext.1 is in fraud of creditors, the transaction would only be voidable and not void that any creditor who seeks to get any relief against the properties comprised in that voidable transfer must file a separate suit to have the transfer set aside. This contention cannot be accepted. A Full Bench of five judges of the Madras High Court in Ramasami Chettiyar v. Mallappa Reddiar (ILR 43 Mad. 760 FB) presided over by Wallis, C.J., as he then was, decided that to avoid a transfer which is voidable under S.53 of the Transfer of Property Act, it is not necessary that a separate suit should be filed and that it is enough that a creditor or creditors at whose instance the transfer is voidable repudiate the transfer by an unequivocal declaration in that regard. This case was followed by Venkitaramana Rao, J. in Ramaswami Naicker v. Lakshmana Kudumber (A.I.R. 1936 Mad. 408) where, as in this case, what the creditor did to repudiate the voidable transfer made by the debtor was to attach the property, the subject-matter of the transfer, as still belonging to the judgment-debtor. The conduct of the decree-holder in attaching property transferred under a transaction voidable under S.53 was regarded as a sufficient repudiation and unequivocal declaration to repudiate within the meaning of the Full Bench decision in 43 Madras. The conduct of the decree-holder in attaching property transferred under a transaction voidable under S.53 was regarded as a sufficient repudiation and unequivocal declaration to repudiate within the meaning of the Full Bench decision in 43 Madras. We are in respectful agreement with the view held in the abovesaid Madras cases and we hold that the subject-matter of transfer in this case has been available to the decree-holder for attachment as property belonging to the judgment debtor, the first defendant, notwithstanding the gratutious transfer under Ext.1 in favour of his wife and son. The above considerations lead us to the conclusion that the objection to the attachment raised by the second defendant ought to be rejected, that the order passed by the learned District Judge upholding the objection should be set aside and that passed by the learned Munsiff be restored though not for the reasons relied upon by him. The Second Appeal is, therefore, allowed with costs throughout. Allowed.