JUDGMENT Shiv Dayal, J. This first appeal arises out of a suit instituted by the attaching decree-holder under Order 21, Rule 63 of the Code of Civil Procedure. One Surat Singh was indebted to Badrilal Plaintiff. On Surat Singh's death his estate consisting of a house and some Zamindari property came in the hands of his widow Kasturi Bai. On January 18, 1946, Badrilal instituted a suit for the recovery of Rs. 2,200 against Kasturi Bai in the Court of District Sub-Judge, Ujjain, (Civil Suit No. 139 of Samvat 2002). A decree was passed in favour of Badrilal on June 28, 1948 against Kasturi Bai, to the extent of the estate received by her from her deceased husband. The decree was transferred to the Court of Civil Judge, First Class, Shajapur, for execution. In Execution Case No. 270 of 1952 Badrilal got the suit house and land attached. An objection petition was filed under Order 21, Rule 58 of the Code of Code of Civil Procedure by Ramgopal and Ramchandra Appellants before us. They succeeded and the property was released from attachment. The objection petition was based on a sale deed dated January 22, 1947, whereby Ramgopal and Ramchandra had purchased the suit property from Kasturi Bai. Aggrieved by the order releasing the property from attachment, this suit was instituted by Badrilal against Ramgopal and Ramchandra, successful objectors; and Kasturi Bai, the third Defendant. The learned trial Judge held that the sale in favour of Ramgopal and Ramchandra was fictitious. He, therefore, held that the sale deed dated January 22, 1947 was ineffective so far as the Plaintiff was concerned. It is against this judgment and decree that the Defendants Ramgopal and Ramchandra have come up to this Court in appeal. Shri Gokhale, Learned Counsel for the Appellants first of all made an endeavour to show that the property, which was attached by the decree-holder Respondent did not belong to deceased Surat Singh and was, therefore, not liable to attachment. But this objection cannot be heard because there is no such allegation either in the written statement nor in the memorandum of appeal here. Kedarmal, P. W. 1 stated that the property belonged to Surat Singh and he was not cross-examined on this point. The main question in this appeal is whether the sale in favour of the Appellants was a fictitious one. Kedarmal, P. W. 1 stated that the property belonged to Surat Singh and he was not cross-examined on this point. The main question in this appeal is whether the sale in favour of the Appellants was a fictitious one. I quite see that in the Court below some confusion existed all along and Section 53 of the Transfer of Property Act was referred to. That section really applied to a transfer where a sale is valid and effective for all purposes until it is set aside on the ground that the same was made with intent to defraud or delay the creditors of the transferor. Such a transfer is void at the option of the creditors who are defrauded; it is otherwise valid and binding on the transferee. On the other hand, there are cases of colourable transfers or benami transfers which are merely sham; they are not meant to be operated between the parties. So called transfers of the second category are no real transfers although they appear to be so. The two categories should never be confused. In the first case there is a transfer, valid and operative although voidable at the option of the creditors; while in the second case there is no transfer but the property is merely shown as transferred often for the purposes of defrauding creditors. This distinction is sometimes lost sight of. The difference is distinct though it is often slurred, as observed by Sir Lawrence Jenkins in Mina Kumari Bibi v. Bijoy Singh 44 1 A 72 = ILR 44 Cal 662. In the present case the allegations in the plaint clearly indicate that the Plaintiff asserted the sale in favour of the Appellants to be fictitious and sham transaction. It is stated in paragraph 4 of the plaint "Uprokt prativadi sankhya 3 prapya dhan wasul nahin hone dene ho mirt Surat Singh ki chhodi hui sampatti Makan, zamindari, tatha krish bhumi ka antaran pharzi wa numayishi ker diya". Defendants Nos. 1 and 2 were alleged to be related to the third Defendant and then it was asserted that a consideration passed for the sale; "koi pratiphal bhi wastaw men diya liya nahin gaya". Defendants Nos. 1 and 2 were alleged to be related to the third Defendant and then it was asserted that a consideration passed for the sale; "koi pratiphal bhi wastaw men diya liya nahin gaya". The recitals in the sale deed as regards consideration are: (1) she had to repay her own detail; (2) she was in need of expenses for agricultural purposes; (3) for her own subsistence and (4) for the maintenance and betrothal of her daughter's son, resided with her. After hearing Shri Gokhale I see no case for disturbing the finding of fact reached by the learned trial Judge that the sale was a fictitious one and that it was without consideration. At the time of the execution of the sale deed nothing was paid by the transferees to the transferor. It was vaguely stated therein that the price had already been paid by the vendees; "zare saman Rs. 6,500 Chhe hazar panch sau rupeye abd azin tamam was kamal berun adalat registry mushtariyan ki janib se maine wasul pa liya hai". It is not mentioned on what date, at what place, in what manner was the price paid. It is also not shown why the price was paid before the execution of the sale deed. There is no satisfactory evidence on the record to prove that Kasturi Bai was indebted to the vendees. The latter did not produce their books of account. According to Kishore Singh, D. W. 2, who is Kasturi Bai's son-in-law, stated to the Court that the creditors used to make entries in their books. Siddhnath Jagannath D. W. who was produced by the Defendants had attested the sale deed but his statement in the Court was that no money was paid in his presence to Kasturi Bai at any time. Siddhnath D. W. stated that Rs. 4,000 were paid by Ramgopal and Ramchandra to Kasturi Bai but in cross-examination he admitted that no money was counted in his presence nor was any receipt passed at that time. He further stated that Ramgopal and Ramchandra gave her, at the same time, a statement of previous account. No such account has been produced. Ramchandra Defendant examined himself but he made no endeavour to prove any previous debt. He further stated that Ramgopal and Ramchandra gave her, at the same time, a statement of previous account. No such account has been produced. Ramchandra Defendant examined himself but he made no endeavour to prove any previous debt. It is also found in the statement of Siddhnath D. W. that even after the sale Kasturi Bai continued to reside and always resided in the suit house itself. These facts lead to the irresistable conclusion that the transfer was not real; it was only show of a transfer. Shri Gokhale then urges that the trial of the suit was defective and incomplete as no issue was framed by the trial Judge as to want of legal necessity. In my opinion, this contention has no substance. In fact the question of legal necessity or otherwise is of no importance, once it is held that there was no real transfer. This appeal is, therefore, dismissed with costs. Appeal dismissed