Judgment.- This Second Appeal is filed by the 1st defendant against the judgment and decree of the Subordinate Judge of Chingleput who reversed the decision of the trial Court dismissing the suit brought by the respondents for a declaration of their title to the suit property and for the recovery of possession thereof. The facts material for the purpose of this enquiry are as follows: One Damodara Mudali executed a sale deed Ex. P-1 in favour of the appellant conveying his divided half share in the suit house for a stated consideration of Rs. 600-0-0 on 9th June, 1935 and had it registered on 3rd October, 1935. The vendor took the same property on lease from the vendee evidenced by the original of Ex. D-1, dated 3rd October, 1935. A creditor of Damodara attached the suit house in execution of a decree which he obtained against him. The 1st defendant in the present suit intervened with a claim petition but his claim was disallowed on the ground that, the sale was effected with a view to defraud the creditors. The defeated claimant, did not bring a suit to set aside the claim order as the decree debt was satisfied out of the sale proceeds of other properties belonging to Damodaram. Subsequently, the present plaintiffs instituted a suit O. S. No. 176 of 1936 against the present 1st defendant, that is the vendee under Ex. P-i and the widow and mother of Damodara (Damodara having died by that time) for an injunction restraining them from interfering with the plaintiff’s possession on the allegations that Damodara and the plaintiffs were members of an undivided joint family and that on the death of Damodara the plaintiffs got the suit property by survivorship. This suit was ultimately dismissed as it was found that Damodara on the date of Ex. P-1 was divided from the plaintiffs and that the plaintiffs were not in possession of the property at the time of the suit. It is not necessary for me to refer to some other litigation in respect of the same property as that has no bearing on the controversy in the present appeal. Having failed there, the plaintiffs laid this action for the reliefs mentioned above with the averments that Ex. It is not necessary for me to refer to some other litigation in respect of the same property as that has no bearing on the controversy in the present appeal. Having failed there, the plaintiffs laid this action for the reliefs mentioned above with the averments that Ex. P-1 was a sham and nominal document not intended to convey title and that they were entitled to the properties as the reversioners to the estate of Damodara. The suit was resisted mainly on the plea that the sale deed Ex. P-1 was a genuine one and that the plaintiffs could not put forward any claim thereto. The trial Court dismissed the suit holding that Ex. P-1 evidenced a real transaction and that it was not a nominal document executed in fraud of creditors. On appeal the lower appellate Court in disagreement with the trial Court found that Ex. P-1 was executed with a view to defraud the creditors. In the result, it decreed the suit. It may be stated that the learned Subordinate Judge had not kept in view the distinction between a sham and fictitious document under which no title was intended to pass and a real document executed with intent to defraud creditors. Having regard to this fact, I had to call for a finding when the appeal came on for hearing for the first time in September, 1951, as to whether Ex. P-1 was a mere sham document under which no title was intended to pass to the vendee and therefore a mere nullity or whether it was a document by which legal title was intended to vest in the vendee with the object of defrauding the creditors. The finding submitted by the learned Subordinate Judge is that the intention of Damodara was not to defraud his creditors but that his object was only to retain the suit property for himself and make the creditors proceed against the other properties, that consequently Ex. P-1 was not intended to convey legal title to the 1st defendant and that it was merely a sham document. I will presently show that this finding is not borne out by the evidence on record and is also self-contradictory and is therefore not entitled to any weight. I propose to consider the evidence afresh and give a decision on this question on the materials before me. In support of this appeal, Mr. I will presently show that this finding is not borne out by the evidence on record and is also self-contradictory and is therefore not entitled to any weight. I propose to consider the evidence afresh and give a decision on this question on the materials before me. In support of this appeal, Mr. Natesan on behalf of the appellant contended that in view of the finding of the learned Subordinate Judge that there were no creditors at all in fraud of whom this document is said to have been executed, the only conclusion that could have been reached by the learned Subordinate Judge was that Ex. P-1 evidenced a genuine transaction and could not be impeached on the ground that it was entered into with a view to defraud the creditors. I do not think that I can accede to this argument having regard to the fact that there is evidence to show that there were some creditors at the time of the execution of Ex. P-1 to defeat whom the document is said to have been executed and that the finding given in all the prior litigations was that this document was executed with intent to defraud the creditors. It was next, argued that the object in entering into the transaction being a fraudulent one and the reason for the non-fulfilment of the fraud being not the locus penitentiae of the fraudulent grantor but the intervention of the Court, the transferor cannot invoke the aid of the Court to recover the property transferred by him. According to him, it is only when an illegal transaction is not carried out due to repentance on the part of the transferor and not due to the intervention of third parties that the transferor would be entitled to claim the recovery of the property through Court. In support of this proposition reliance was placed by him on Muthuraman Chetti v. Krishna Pillai1, and also on the opinion expressed by Pritchard, J., in Bigos v. Bousted2. I do not think that Muthuraman Chetti v. Krishna Pillai1, carries the appellant very far. All that was laid down there was that the rule that a person in pari delicto cannot recover is applicable not only to cases where contemplated fraud is completely carried out but to cases where there has been substantial part performance of the same as well. All that was laid down there was that the rule that a person in pari delicto cannot recover is applicable not only to cases where contemplated fraud is completely carried out but to cases where there has been substantial part performance of the same as well. Undue weight cannot be attached to the remarks at page 74 of the Report which run thus: "Turning to the facts here, we do not iind a case when a party to a fraudulent transaction relented before anything was done in pursuance of the intended fraud and the unlawful compact was in no way carried out." These remarks should be understood only with reference to the context in which they are used. No doubt the judgment of Pritchard, J., in Bigos v. Bousted2, supports to a greater extent the position taken up by Mr. Natesan. The following observations of the learned Judge at page 100 of the report are pertinent: "I confess that there was a time when I thought it would be right to apply to the facts of this case the reasoning of the decision in Taylor v. Bowers3, but having considered all the authorities, I do not take that view. I think that what is to be extracted from the authorities may be treated as follows: I think that they show, first, that there is a distinction between what may, for convenience, be called the repentance cases, on the one hand, and the frustration cases, on the other hand. If a, particular case may be held to fall within the category of repentance cases I think the law is that the Court will help a person who repents, provided his repentance comes before the illegal purpose has been substantially performed. If I were able in this case, to take the view that the defendant has brought himself within that sphere of the authorities, it might well be that I would have been able to help him by saying that his repentance had come before the illegal purpose had been substantially performed but I do not take that view. I think, however, that this case falls within the category of cases which I call the frustration cases." I do not think I can share this view of the learned Judge. I think, however, that this case falls within the category of cases which I call the frustration cases." I do not think I can share this view of the learned Judge. It is not only opposed to the rule of law contained in section 84 of the Indian Trusts Act but to the principles enunciated in the Privy Council decision in Petheperumal Chetty v. Muniandy Servai4, which has been followed by the Full Bench of this Court in Venkataramayya v. Pullayya5. In Pethaperumal Chetti v. Muniandy Servai4, in order to defeat the claim of an equitable mortgagee to certain property the predecessor-in-interest of the plaintiff and another member of the joint Hindu family executed a document purporting to be a sale of the property in favour of the predecessor-in-interest of the defendant. But the equitable mortgagee succeeded in getting a declaration that his mortgage could be enforced against the property covered by the last conveyance in priority to the last-mentioned conveyance as the transferee under the sale-deed was aware of the existence of the equitable mortgage. The claim arising under the mortgage was subsequently satisfied. In a suit filed by the transferor for the recovery of the property purported to have been conveyed under the sale deed the defence put forward was that as the grantor was in pari delicto his successor-in-interest could not recover the property although the fraud was not successfully carried out. This objection was overruled and a decree was granted. The Privy Council repelled the contention that if the plaintiff was allowed to recover the property in dispute and if the maxim in pari delicto potior est conditio possidentis were not rigorously applied to such cases, much confusion would be imported into the law in the following words:- "The answer to that is that the plaintiff, in suing to recover possession of his property is not carrying out the illegal transaction but is seeking to put everyone, as far as possible, in the same position as they were in before that transaction was determined upon. It is the defendant, who is relying upon the fraud, and is seeking to make a title to the lands through and by means of it And despite his anxiety to effect great moral ends, he cannot be permitted to do this. It is the defendant, who is relying upon the fraud, and is seeking to make a title to the lands through and by means of it And despite his anxiety to effect great moral ends, he cannot be permitted to do this. And further, the purpose of the fraud having not only not been effected, but absolutely defeated, there is nothing to prevent the plaintiff from repudiating the entire transaction, revoking all authority of his confederate to carrv out the fraudulent scheme, and recovering possession of his property. The decision of the Court of Appeal in Taylor v. Bowers1, and the authorities upon which this decision is based, clearly establish this. Symes v. Hughes2, and In re Great Berlin Steamboat Company3 are to the same effect. And the authority of these decisions, as applied to a case like the present, is not in their Lordships opinion, shaken by the observations of Fry, L.J., in Kearley v. Thompson."4 The statement contained in the subsequent portion of the judgment that it is only when a contemplated fraud was effected that a fraudulent transferor would forfeit the right to seek the assistance of a Court to get back the property he has parted with furnishes a complete answer to the contention put forward by Mr. Natesan. It is evident from these observations that there is no foundation for the distinction between the fraud not being carried out on account of the repentance of the grantor and the frustration of the fraud through the intervention of Courts or third parties. In my opinion, in judging whether a fraudulent grantor can recover the property he had parted with, with the aid of the Court, the test is whether the fraud has been perpetrated or whether there has been a substantial part performance of it and not whether it was due to the penitence of the fraudulent grantor or whether it fell through on account of the intervention of a Court or third parties. Pethaperumal Chetti v. Muniandy Servai5, was followed by a Full Bench of this. Court in Venkataramayya v. Pullayya6. What happened there was this. With a view to cheat his son a Hindu father transferred an item of joint family property in favour of his daughter. Subsequent to this he filed a suit for partition of family properties in which the property covered by the sale deed was not included. Court in Venkataramayya v. Pullayya6. What happened there was this. With a view to cheat his son a Hindu father transferred an item of joint family property in favour of his daughter. Subsequent to this he filed a suit for partition of family properties in which the property covered by the sale deed was not included. When objection was taken to it by the son in his written statement to this exclusion, the father agreed to include this property for partition and asked for its being allotted to his share. Ultimately the matter was compromised and the property was allotted to his share and he recovered possession thereof from his son. Shortly thereafter the maternal grandson that is the transferee’s son filed a suit for the recovery of the property in dispute. The defence to the suit was that the sale in favour of his daughter was a benami transaction entered into for the purpose of cheating his son. The question arose whether it was open to the ist defendant to plead his own fraud. The answer given by the Full Bench was in the affirmative. It took the view following Pethaperumal Chetti v. Muniandy Servai5, that in order to deprive a fraudulent grantor of his right to recover the property with the assistance of a Court, the intended fraud must have been effected or at least there must have been a substantial part performance of the intention to defraud. The learned Judges expressed the opinion that a mere fraudulent intention as evidenced by the impeached document, was not sufficient. I may also refer to section 84 of the Indian Trusts Act. The rule enacted in that section is in conformity with the principles embodied in the decisions quoted above. The learned Judges expressed the opinion that a mere fraudulent intention as evidenced by the impeached document, was not sufficient. I may also refer to section 84 of the Indian Trusts Act. The rule enacted in that section is in conformity with the principles embodied in the decisions quoted above. Section 84 runs thus: "Where the owner of a property transfers it to another for an illegal purpose and such purpose is not carried into execution, or the transferor is not as guilty as the transferee, or the effect of permitting the transferee to retain the property might be to defeat the provisions of any law, the transferee must hold the property for the benefit of the transferor." On this statutory provision and the principles enunciated in Pethaperumal Chetti v. Muniandy Servai5, followed in Venkata Ramayya v. Pullayya6, and in other rulings to which 1 need not allude here, my conclusion is that so long as the contemplated fraud is not carried out or at least there has been no substantial part performance of it, the grantor although in pari delicto is entitled to invoke the assistance of a Court for the recovery of the properties he has parted with irrespective of the fact whether the frustration of the fraud was the result of the locus penilenliae of the transferor or clue to other causes. I therefore reject the contention based on the theory pro-pounded by Pritchard, J., in Bigos v. Bousted1, and find that the plaintiffs can get a decree for the recovery of the property if otherwise they are entitled to do so. The next submission made by Mr. Natesan is that if the object in executing a sale deed was to defraud the creditors it must be considered to be a fraudulent transfer which has to be avoided and not a sham and colourable transaction not intended to convey title which need not be set aside. In support of this he cited to me the judgment of Krishnan, J., in The Secretary of State for India v. Dadi Reddi Nagiah2. That judgment does lend support to this contention of Mr. In support of this he cited to me the judgment of Krishnan, J., in The Secretary of State for India v. Dadi Reddi Nagiah2. That judgment does lend support to this contention of Mr. Natesan, But the other learned Judge Ayling, J., remarked thus: “I speak thus cautiously, because we have not had the benefit of any argument contra and the words are open to the construction placed upon them by the learned District Judge.” The dictum laid down by Krishnan, J., is opposed to a Bench decision of this Court in Swaminatha Aiyar v. Rukmani Ammal3. In Palaniandy Chetti v. Appavu Chettiar4 a Bench of this Court consisting of Coutts Trotter and Seshagiri Ayyar, JJ., called for a finding whether a document executed with a view to defraud the creditors was merely a colourable one leaving the real beneficial enjoyment with him who purported to transfer it or a real one meant to effect a real transfer of the property from the transferor to the transferee. The decision in Pethaperumal Chetti v. Muniandi Servai5, also seems to be opposed to what is stated by Krishnan, J., in The Secretary of State for India v. Dadi Reddi Nagiah2. In the last mentioned case it was observed that if the transaction impeached was a benami one not intended to be operative as between the grantor and the grantee the successor-in-interest of the grantor could recver the property without asking for the cancellation of the document. It looks to me that the proposition was too broadly stated by Krishnan, J., in that decision. In my opinion, whether a sale deed was a sham and simulated one not intended to convey any title or whether it was a real one intended to pass title to the transferee thereunder depends upon the animus transferendi at the time when the parties entered into the transaction and each case has to be decided with reference to the documents and the surrounding circumstances. Nor is there any substance in the contention of Mr. Veeraraghava Aiyar that in all cases of fraudulent transfers intended to defraud the creditors they should be presumed to be mere sham and bogus transactions not intended to be operative between the grantor and the grantee. Nor is there any substance in the contention of Mr. Veeraraghava Aiyar that in all cases of fraudulent transfers intended to defraud the creditors they should be presumed to be mere sham and bogus transactions not intended to be operative between the grantor and the grantee. This leads me to the question whether the document in this case is a mere paper transaction under which no legal title passed to the transferee and the beneficial interest was retained by the transferor or whether it was a real document intended to be given effect to. On a consideration of the evidence on record and the surrounding circumstances, the only reasonable conclusion I can arrive at is that Ex. P-1 was not a mere fictitious or a bogus document but was a document intended to be operative and to be given effect to. It was a real transaction which was acted upon as can be seen from the following circumstances. On the death of Damodara the vendor who occupied the house subsequent to Ex. P-1 as a tenant under Ex. D-1, his widow and his mother were not living in the house as spoken to by P.W. 2. It is evident from the admission of P.W.1 the next friend of the plaintiffs that the 2nd defendant to whom the property was leased out under Ex. D-20 occupied the house after the demise of Damodara. She categorically stated that she came to know about this impeached document when there was a talk that the and defendant was occupying the house. It is also in evidence that the 1st defendant paid kist for the suit property. All these circumstances clearly indicate that under the document Ex. P-1 legal title was intended to pass and was meant to be an operative one and that effect was given to this document subsequently. The next question is that if this document was not a mere sham and colourable transaction but a real one, could the plaintiffs ask for a mere declaration that they are entitled to the property without asking for the avoidance of that document? In my judgment, they cannot do it. The document not being void but only voidable will be valid till it is set aside and the plaintiffs without having it avoided cannot recover the property. In my judgment, they cannot do it. The document not being void but only voidable will be valid till it is set aside and the plaintiffs without having it avoided cannot recover the property. In this case there is no prayer tor setting aside the sale deed and the reliefs asked for are the declaration mentioned above ana recovery of possession of the property. Consequently, they cannot recover possession of the property from the 1st defendant. It follows that the reliefs asked for cannot be granted and the suit has to be dismissed. The decision of the lower appellate Court decreeing the suit is unsustainable. Hence the appeal is allowed. In the circumstances of this case, I direct the parties to bear their own costs throughout. No leave. K.S. --------- Appeal allowed.