JUDGMENT George Abraham Vadakkel, J. 1. The lower courts concurrently found that Ext. A-1 settlement deed whereby the father of the defendants purported to gift his properties to the defendants 'is a sham and collusive document.' Ext. A-3 judgment in O.S. No. 14 of 1962 on the file of the Sub Court, Kasaragod shows that the plaintiff obtained a money-decree on a promissory note executed by the father of defendants in 1951 and renewed from time to time, the last of the renewal being on 9th June 1960. Ext. A-1 was executed on 17th March 1960. In execution of the decree in O.S. No. 14 of 1962 the plaintiff attached the standing crops in the plaint properties, and the defendants, thereupon, preferred a claim petition on the basis that the properties have been gifted to them by their father as per Ext. A-1. The claim was upheld by the execution court by Ext. A-2 order. This necessitated the present suit wherein the plaintiff prayed for a declaration that Ext. A-1 settlement deed is fraudulent and that it was brought about to dupe and defraud the plaintiff. The plaintiff also prayed for setting aside Ext. A-1 settlement deed. The trial court decreed the suit in terms of the plaint, and the lower appellate court confirmed the same. 2. The only point urged before me is that the suit is not maintainable for the reason that it is not a representative suit as contemplated by the last paragraph of section 53 (1) of the Transfer of Property Act, 1882. The first paragraph of section 53 (1) provides that a transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed, and the last paragraph thereof on which reliance is made by the appellants makes it obligatory on the part of a creditor, if he institutes a suit 'to avoid' the transfer on the grounds mentioned in the first paragraph, to institute the same on behalf of, or for the benefit of, all the creditors. The only question, therefore, that has to be considered is whether the suit out of which this appeal arises, is a suit solely and wholly 'to avoid' a 'voidable' transfer. 3. The only question, therefore, that has to be considered is whether the suit out of which this appeal arises, is a suit solely and wholly 'to avoid' a 'voidable' transfer. 3. A colourable transfer or sham transfer is not intended or meant to operate between the parties to the document, and is therefore no transfer at all. A real and genuine transfer is valid between the parties to the transaction, though it can be avoided by a creditor, who thereby is defeated or delayed, if the transfer is made with intent to defeat or delay the creditors of the transferor. Such avoidance may be by instituting a suit or in some other manner, as for example, by attaching the property as still belonging to the transferor, whereby the creditor claims to treat the transfer as void. See Abdul Shukoor Saheb v. Papa Rao A.I.R. 1963 S.C. 1150. The last paragraph of section 53 would be attracted only where the creditor chooses to file a suit to 'avoid' a transfer which is 'voidable' at his instance, and is, therefore, valid as between the transferor and the transferee till it is avoided. Where the transferee is a mere benamidar and the transfer is only a colourable one intended only as a mask or to screen off the property there is no need to avoid the same. The Supreme Court decision above mentioned is authority for the proposition that a creditor, who in most cases will be a stranger, being unable to know whether the transfer is a real one or a sham one, is entitled to raise alternatively all the pleas open to him, viz., that the transfer is sham or a pretended sale without consideration and not intended to pass title to the nominal purchaser, and, in the alternative, that even if it were a real transaction supported by consideration and intended to pass title to the plaintiff, still the same is a fraud upon the creditors and, therefore, is voidable at his instance. 4. In paragraph 7 of the plaint the plaintiff's case is that the 'gift deed impugned is not a true and genuine transaction, but is brought about by the defendants in fraudulent collusion with each other only to dupe and to defraud the 1st defendant's creditor, the plaintiff'. The word fraudulent occurs in some other passages also in the plaint. 4. In paragraph 7 of the plaint the plaintiff's case is that the 'gift deed impugned is not a true and genuine transaction, but is brought about by the defendants in fraudulent collusion with each other only to dupe and to defraud the 1st defendant's creditor, the plaintiff'. The word fraudulent occurs in some other passages also in the plaint. The plaintiff also excuses himself for not filing the suit as a representative one on the ground that he is the sole creditor; (whether this is a sufficient excuse or not does not arise for consideration in this case, and I am not deciding that question) on which there is a sharp cleavage of opinion see the discussion in N. Rajyalakshmamma v. K. Rajamma A.I.R. 1973 A.P. 126 where the decision of this court in State Bank v. A. K. Nanan A.I.R. 1967 Kerala 171 is dissented from. However, I am not prepared to hold that the plaint proceeds solely on the basis that the transfer is, though fraudulent, a real one. It certainly is also on the basis that the gift deed is not a true and genuine transaction' and that it is a 'collusive ' one. The evidence adduced appears to have been directed to substantiate the case that the transfer is not a real transfer. The trial court has observed that the defendants have no case that the evidence adduced on the side of the plaintiff would disclose a real transfer under Ext. A-1, and that their only attempt was to debar the plaintiff from adducing evidence in support of his case that. Ext. A-1 is a sham document as contrary to pleadings. Nor was any arguments advanced before me that the evidence discloses a real transfer and not a sham one. The argument was that the evidence cannot be looked into, in the absence of pleadings and issues. I am afraid that the above argument is without any substance. The trial court raised two issues on the question of maintainability of the suit: Issue 3 "whether the suit is not maintainable in view of Order 1, Rule 8 of the C.P.C. " and Issue 5 "whether the suit as brought is maintainable". The plaintiff being entitled to plead, in the alternative that Ext. The trial court raised two issues on the question of maintainability of the suit: Issue 3 "whether the suit is not maintainable in view of Order 1, Rule 8 of the C.P.C. " and Issue 5 "whether the suit as brought is maintainable". The plaintiff being entitled to plead, in the alternative that Ext. A-1 settlement deed, if real, is one voidable at his instance, or that it is a sham document, at the evidence stage, he is free to adduce evidence in support of one or the other of the pleas, and confine his case to one of them. The plaintiff in this case has not chosen to develop his case that Ext. A-1 settlement is a fraudulent transaction though a real one, so that Issue 3 became an irrelevant or immaterial issue. The only other issue on this question is Issue 5, on which the burden of proof was upon the defendants to establish that the suit is not maintainable. This, they can discharge only by proving that the settlement deed is a real one, upon proof of which Issue No. 3 would be a material issue. Defendants have not established that Ext. A-1 is a real transfer, and the plaintiff has, as already, stated, proved that it is a sham one. 5. It was said by Raman Nayar, J. (as he then was) in Skaria v. Joseph 1965 K.L.T. 341 at 351 relied on by the lower courts: "But if a creditor who is defeated or delayed thereby, has a right to sue to avoid a transfer which is real though fraudulent, a creditor defeated or delayed by a transfer which is sham and nominal should all the more have the right to sue in order to establish that the transfer should not stand in the way of his recovering his debt from the property in question. It is true that such a creditor can ignore the sham transfer as a mere nullity. But that he can do so does not mean that he cannot sue to establish his right to do so, in other words, his right to treat the transfer as void thus avoiding the transfer. It is true that such a creditor can ignore the sham transfer as a mere nullity. But that he can do so does not mean that he cannot sue to establish his right to do so, in other words, his right to treat the transfer as void thus avoiding the transfer. And it seems to me that, if section 53 of the Transfer of Property Act was not really intended to apply to a sham transfer, it could only have been because a right of suit is given by section 42 of the Specific Relief Act. ". (Section 42 of the Specific Relief Act, 1877 correspondents to section 34 of the present Specific Relief Act, 1963). In other words, a creditor is entitled to clear the cloud on his debtor's title to his (debtor's) property, created, no doubt, by the debtor himself, so that the creditor can enforce payment of his debt by compelling payment of the same out of the debtor's property, which at present day, generally constitutes the only means of recovering the debt. Shortly put, an attaching-creditor who is defeated in claim proceedings, is entitled to establish his right to proceed against the property in dispute, by establishing that in spite of the purported transfer, the property is still of his judgment-debtor. Such a suit, being not one to avoid a valid (though 'voidable') transfer, the last paragraph of section 53 of the Transfer of Property Act would not be attracted to it. To this effect is the decision of this Court in Sumathi v. Kunjupennu Bhargavi 1974 K.L.T. 77 where Sadasivan, J. said:- "Where the suit is based on the allegation that the transfer is a sham, bogus or fictitious transaction, the case does not come under section 53 of the Transfer of Property Act and the suit need not be brought in a representative character". 6. The suit is maintainable. The second appeal is devoid of any merit. The same is dismissed with costs.