JUDGMENT : ( 1. ) THIS is a plaintiffs appeal under section 96 of the Code of Civil Procedure against the judgment and decree dated 5-8-1961 passed by the Second Additional District Judge, Jabalpur, dismissing his suit (Civil Suit No. 27-Aof 1960 ). ( 2. ) THE brief facts of the case are that Seth Ramkumar (plaintiff), who is now dead and whose legal representative has been brought on record, had filed Civil Suit No. 5-B of 1951 against respondent-defendants 2 to 5 (respondent No. 2 Jayantilal is also dead and his legal representatives have been brought on record) who were defendants in that suit. The said suit was decreed on 9-9-1954 for Rs. 24. 877/8/ and Rs. 2,969/1/- were awarded on account of corresponding costs. The copy of the decree is Ex. P-1. In execution of the decree, the plaintiff on 12-10-1954 secured attachment of a house No. 696 located on plot No. 111 in Wright Town, Jabalpur. On 19-10-1954, respondent No. 1 (defendant No. 1) filed an objection under Order 21, rule 58 of the code of Civil Procedure contending inter alia that he was donee of the attached property by virtue of the gift deed dated 4-3-1954 executed in his favour by his grand-mothers Smt. Jadao Bai and Smt. Ujjam Bai, who had also delivered possession to him. These two ladies had purchased the said property from jayantilal (deceased) through a registered sale deed dated 27-1-1948 for a consideration of Rs. 61,350 with delivery of possession. Accordingly, he prayed for release of the house from attachment. The case was registered as Misc. Judicial Case No. 25 of 1954. The executing Court Vide its order dated 4-5-1957 (Ex. P. 2) released the house from attachment by allowing the objection. ( 3. ) THE plaintiff filed the present suit under Order 21, rule 63 of the Code of Civil Procedure and the plaint purported to be under section 53 of the transfer of Property Act also as against the aforementioned order for a declaration that the suit house is liable to attachment and sale in execution of the decree obtained by him. His allegations are contained in para. 4 (a) and (b)of the plaint to the effect that the suit house continues to be the property of jayantilal (defendant No. 2) and also under his possession. The alleged saledeed dated 27-1-1948 (Ex. 1. His allegations are contained in para. 4 (a) and (b)of the plaint to the effect that the suit house continues to be the property of jayantilal (defendant No. 2) and also under his possession. The alleged saledeed dated 27-1-1948 (Ex. 1. D-12) of the suit house for Rs. 61,350 by said jayantilal in favour of Smt. Ujjam Bai and Jadao Bai of the firm of M/s mohanlal Hargovind was a fictitious, sham, bogus and collusive transaction brought into existence as a camouflage to save the property from being sold. According to the plaint allegation, the transaction in favour of the Predecessors intitle of Shravan Kumar (defendant No. 1) did not convey any right, title or interest to them in the said property. Detailing the alleged fraud, the plaintiff pleaded that Jayantilal (defendant No. 2) was under heavy debts in the year 1947 and the deed of mortgage dated 21-9-1947 (Ex. 1-D-9) was surreptitiously brought into existence for an estensible loan of Rs. 50,000 and to keep the transaction secret, the said deed was not got registered. Though according to the contents of the mortgage deed (Ex. 1-D-9) the loan was to be repaid after one year, but in the absence of any demand for return of the same, Kamod chand (defendant No. 3) came to Jabalpur in the year 1948 and on the basis of the authority derived from an invalid power of attorney dated 20-1-1948 (Ex. 1-D-5) from Jayantilal (defendant No. 2) executed an agreement of sale on 24-1-1948 (Ex. 1 D-11 ). Later on, the agreement was implemented by execution of a registered sale deed dated 27-1-1948 (Ex. 1 D-12) for the alleged consideration of Rs. 61,350, including Rs. 50,000 alleged to have been paid for the mortgage. It was further alleged that payment of Rs. 50,000 on 21-9-1947 and a further payment of Rs. 20,000 on 26-9-1947 was, as a matter of fact, only a show. Even if it may be assumed that money was at all paid, it was taken back by Smt. Ujjam Bai and Jadao Bai in the form of hundies from jayantilal (defendant No. 2 ). The plaintiff further asserted that inspite of the sale, the property (suit house) remained in possession of the said Jayantilal. Thus, according to him, the transaction of sale Vide Ex. The plaintiff further asserted that inspite of the sale, the property (suit house) remained in possession of the said Jayantilal. Thus, according to him, the transaction of sale Vide Ex. 1-D-12 was fraudulently brought into existence to delay and defeat the creditors of Jayantilal (defendant No. 2) and his brothers. Therefore, according to him, such property is liable for attachment and sale in the execution of his decree. ( 4. ) THE suit proceeded ex parte as against the defendant 2 to 5 and only defendant No. 1 Shravan Kumar contested it. According to him, defendant No. 2 Jayantilal had requested for a loan of Rs. 70,000 from the firm m/s Mohanlal Hargovind, Since the firm did not agree to advance the loan without security, the said defendant proposed mortgage of the suit property, on which condition it was agreed by the firm to advance the loan of Rs. 50,000. Besides that, an additional loan of Rs. 20,000 was also agreed to be advanced against hundies. The defendant No. 2 Jayantilal executed a mortgage deed of the suit property dated 21-9-1947 (Ex. l-D-9) but the deed could not be registered since he had no time on that day. The loan of Rs. 20,000 was advanced on 26-9-1947. A few days before the expiry of four months the firm asked the defendant No. 2 Jayantilal for repayment of the loan amount or to get mortgage deed registered. On this, defendant No. 2 Jayantilal informed the firm that he was unable to repay the loan amount and suggested sale of the suit property. He sent his brother, defendant No. 3, Kamodchand with a power of attorney authorising him to alienate the said property. As the period of four months was expiring on 25-1-1948 and there was no sufficient time to get the sale-deed executed, defendant No. 3 Kamodchand was asked to execute an agreement of sale which he did on 24-1-1948 after settlement of account. The total amount due was Rs. 61,350 which included principal amount of Rs. 60,000 (as out of the loan of Rs. 20,000 a sum of Rs. 10,000 was repaid) plus Rs. 1,350 as interest. The agreement of sale (Ex. 1-D-11) is dated 24-1-1948. A few days later, on 27-1-1948 the sale-deed (Ex. 1-D-12) was executed for the aforementioned amount in relation to the suit property. 61,350 which included principal amount of Rs. 60,000 (as out of the loan of Rs. 20,000 a sum of Rs. 10,000 was repaid) plus Rs. 1,350 as interest. The agreement of sale (Ex. 1-D-11) is dated 24-1-1948. A few days later, on 27-1-1948 the sale-deed (Ex. 1-D-12) was executed for the aforementioned amount in relation to the suit property. Defendant No. 1 Shravan kumar denied the fact that the firm M/s Mohanlal Hargovind had any knowledge about the indebtedness of defendant No. 2 Jayantilal. He further denied that the sale-deed was either bogus or sham and also any part of the loan was taken back by the firm. It was also denied that the sale transaction was entered into to delay and defeat the creditors of defendant No. 2 Jayantilal. The answering defendant asserted that the sale transaction was for good consideration and hence valid and possession of the suit property was also delivered to and taken by Smt. Jadao Bai and Ujjam Bai in pursuance of that sale. He is the donee of the suit property by virtue of the registered gift deed (Ex. 1-D-16)dated 4-3-1954 executed in his favour by them. Thus, the defendant No. 1 denied the claim of the plaintiff and pleaded for dismissal of the suit. ( 5. ) THE trial Court was of the opinion that the sale-deed (Ex. 1-D-12)cannot be attacked on the ground of sham transaction or entered into to defraud the creditors. In this view of the matter, the said Court held that the suit property ceased to be belonging to defendant No. 2 Jayantilal on 27-1-1948 on account of the sale of the said property effected in favour of Smt. Jadao Bai and Smt. Ujjam Bai. It, therefore, held that it was not liable for attachment and sale in execution of the decree obtained by the plaintiff in Civil Suit No. 5-B of 1951 against Jayantilal and others. Accordingly the suit was dismissed. The plaintiff has now come up before this Court in the present appeal. ( 6. ) HAVING heard learned counsel of the parties, we are of opinion that this appeal must fail. The first point argued by the learned counsel for the appellant was that the defendant No. 2 Jayantilal was very heavily indebted. We must say that the evidence led by the plaintiff-appellant on this point is rather vague. ( 6. ) HAVING heard learned counsel of the parties, we are of opinion that this appeal must fail. The first point argued by the learned counsel for the appellant was that the defendant No. 2 Jayantilal was very heavily indebted. We must say that the evidence led by the plaintiff-appellant on this point is rather vague. In the plaint neither the names of the creditors nor the details of the extent of indebtedness in respect of each creditor has been mentioned. According to the evidence of Ratanchand (P. W. 1), defendant No. 2 Jayantilal was indebted to the extent of about Rs. I lac in the months of August/september, 1947 while the assessment of indebtedness given by Pyarelal (P. W. 2) and mishrilal (P. W. 3) in their evidence relates to an amount of Rs. 2 lacs to 2 1/2 lacs. Pyarelal (P. W. 2) has given the names of two creditors, namely, Dhanya kumar and Sampatlal, both belonging to Katni to whom defendant No. 2 jayantilal had to pay Rs. 1 lac and Rs. 60,000 to Rs. 70,000 respectively. But these two creditors have not been examined as witnesses to prove those debts. The explanation offered on behalf of the plaintiff for non-examination is denial of opportunity by the trial Court to examine them. We are not satisfied with the explanation nor is it borne out from the record. The evidence of Rajaram (P. W. 4) is similar to that of the aforesaid witnesses except that he mentions the name of another creditor Bansilal also for the amount of Rs. 12,000 by virtue of a decree. This Bansilal has also not been examined by the plaintiff. Thus, on the basis of the oral evidence, we hold that the plaintiff has succeeded in proving the following indebtedness only: (a) about Rs. 20,000 payable to Seth Ramkumar (plaintiff); (b) about Rs. 10,000 payable to Seth Ratanchand (P. W. 1); (c) about Rs. 6,000 payable to Mishrilal (P. W. 3); and (d) about Rs. 2,000 payable to Pyarelal (P. W. 2 ). Our attention was also invited towards one decree viz. , Ex.-P-3 and the judgments Ex.-P-5 and Ex. P-6 against Jayantilal and others. As regards Ex. P-3, it is a decree dated 17-9-1949 for about Rs. 2,000 in Civil Suit No. 38-B of 1948. Ex. P-5 is the judgment dated 28-8-1942 decreeing a claim for about rs. Our attention was also invited towards one decree viz. , Ex.-P-3 and the judgments Ex.-P-5 and Ex. P-6 against Jayantilal and others. As regards Ex. P-3, it is a decree dated 17-9-1949 for about Rs. 2,000 in Civil Suit No. 38-B of 1948. Ex. P-5 is the judgment dated 28-8-1942 decreeing a claim for about rs. 10,370/9 in Civil Suit No. 3-B of 1942. Ex. P-6 is the judgment in Civil suit No. 5-B of 1951 in pursuance of which a decree for Rs. 24,877/8/- was secured by the plaintiff and put into execution, giving rise to the present litigation. A perusal of these documents makes it clear that the decree (Ex. P-3)and the decree in relation to the judgment (Ex. P-6) are subsequent to the sale transaction and, therefore, have no significance. The decree in relation to the judgment (Ex. P-5) no doubt would be earlier to the sale transaction, but there is no evidence that it was outstanding in the year 1947 as not satisfied. Thus, the total amount of indebtedness comes to Rs. 38,000 in the year 1947. ( 7. ) THE second and the most important point raised for consideration on behalf of the plaintiff was that the sale transaction dated 27-1-1948 (Ex. 1-D-12)by defendant No. 2 Jayantilal in favour of Smt. Jadao Bai and Smt. Ujjam Bai of the firm M/s Mohanlal Hargovind was sham and bogus, which was entered into to delay and defeat the creditors. If it is held that that was so, the suit must be decreed. At the outset, we would like to mention that the learned counsel appearing for the plaintiff tried to rely mainly on the oral and documentary evidence adduced by defendant No. 1 rather than his own as is evident from the record of the case that the plaintiff has not adduced satisfactory evidence in support of his case. But before we proceed to discuss the evidence, we would much like to enunciate the rule which should govern the decision of the point. ( 8. ) IN our opinion, fraud like any charge of a criminal offence, whether made in civil or criminal litigation, must be established beyond reasonable doubt. A finding as to the fraud cannot be based on suspicion and conjectures. Therefore, the circumstantial evidence must be such so as to create no doubt in the mind. ( 8. ) IN our opinion, fraud like any charge of a criminal offence, whether made in civil or criminal litigation, must be established beyond reasonable doubt. A finding as to the fraud cannot be based on suspicion and conjectures. Therefore, the circumstantial evidence must be such so as to create no doubt in the mind. The burden of proof to establish it lies on the party who alleges fraud. We are supported in our view point by a decision of the Privy Council in Hansraj gupta and others v. Dehra Dun Mussoorie Electric Tramway Co. Ltd. (AIR 1940 PC 98 ). The relevant passage reads as under : "the party alleging fraud is bound to establish it by cogent evidence and suspicion cannat be accepted as proof. Unless therefore the proved circumstances are incompatible with the hypothesis of the person charged with fraud having acted in good faith, they canot be accepted as affording sufficient proof of fraud. " To summarise the contentions advanced by the learned counsel for the plaintiff in support of his point were (i) the mortgage deed dated 21-9-1947 (Ex. l-D-9)was fictitious and consideration of Rs. 50,000 shown in the deed was not paid8. Similarly the cheque of Rs. 20,000 was brought into existence to make a show of consideration (ii) such a huge amount would not have been advanced to the defendant No. 2 Jayantilal without any enquiry about his indebtedness; (iii) the mortgage deed (Ex. D-1-9) was not registered which shows the element of fraud, as no one would keep such a document unregistered except with an idea to keep it secret so that no one could know about it. The idea was deliberate and it was not done inadvertently; (iv) there was no reasonableness to obtain agreement of sale (Ex. 1-D-11); (v) the power of attorney by defendant No. 2 Jayantilal in favour of defendant No. 3 Kamodchand did not specifically authorise Kamodchand to sell the suit property and on that account the sale-deed was invalid ; (vi) Inspite of sale of the suit property by defendant No. 2 Jayantilal in favour of Smt. Jadao Bai and Ujjam Bai, he continued to be in possession of the same which shows colourable nature of the transaction; (vii) Defendant No. 2 Jayantlal was carrying on business in different names; (viii) Defendant No. 2 Jayantilal returned Rs. 70,000 to the firm M/s. Mohanlal Hargovind by executing hundies in favour of the said firm from time to time; (ix) within a short period the entire property was dispossed of; (x) Defendant No. 1 Shravan Kumar did not in his written-statement state that he was a bona fide transferee under section 53 of the Transfer of Property Act; (xi) There was denial of opportunity to examine Dhanyakumar, Sampatlal and Banshilal, creditors, to prove debts and (xii) There were outstanding decrees against defendant No. 2 Jayantilal at the time of the transaction of the suit property. ( 9. ) WE shall deal with each submission referred to above separately with reference to the evidence on record. As regards the first point, Manilal (D. W. 8)Munim of the firm M/s Mohanlal Hargovind, has deposed that defendant No. 2 jayantilal, who was a shroff in the Imperial Bank of India, Jabalpur branch, made a request to the firm for a loan of Rs. 70,000 against the suit property. He assessed the value of the suit property to be Rs. 60,000 and agreed to advance a loan of Rs. 50,000 against the mortgage of the said property and Rs. 20,000 on hundies. Shri Parmanand Bhai, who controls the firm, had given his consent for the advance of the loan in that manner. Shri B. V. Shukla, Advocate, who is legal advisor of that firm, (D. W. 1) has stated in his evidence that he prepared a draft which was scribed by his clerk Dinbandhu Tiwari on 21-9-1947. The execution and attestation of the mortgage deed (Ex. 1-D-9) on 25-9-1947 have been proved by the evidence of Shri Shukla, Advocate (D. W. 1), Manilal (D. W. 8) and Harihar Vyas (D. W. 9 ). It may be mentioned that in the plaint the mortgage deed has been shown as dated 21-9-1947, but as there is no dispute that the said deed is dated 25-9-1947 and, therefore, it has to be held that it was executed on that date. Thus, the execution of the deed has been satisfactorily proved. The connected point that now arises for consideration is whether the consideration of Rs. 50,000 in the deed was at all paid or not and similarly with regard to Rs. 20,000 which were advanced on hundies. Thus, the execution of the deed has been satisfactorily proved. The connected point that now arises for consideration is whether the consideration of Rs. 50,000 in the deed was at all paid or not and similarly with regard to Rs. 20,000 which were advanced on hundies. It is clear from the evidence of Kachayashwant Kavle (1 D. W. 2), a clerk in the State Bank of india (previously known as Imperial Bank of India) by production of the statement of accounts from the said bank (Ex. 1 D-31 that the firm M/s Mohanlal hargovind drew a cheque bearing No. ba 01220 dated 25-9-1947 for Rs. 50,000 (Ex. 1 D-8) and cheque bearing No. ba 01223 dated 26-9-1947 for Rs. 20,000 (Ex. 1 D-10) and these cheques were cashed in the month of September, Babaldas (D. W. 10 ). Head Cashier of the firm M/s Mohanlal Hargovind produced the extracts of the account-book of the firm and proved the entries relating to rs. 50,000 (Ex. 1-D-33) and Rs. 20,000 (Ex. 1-D-34) in the kachhi rokar. Thus, an advance of Rs. 70,000 (Rs. 50,000 + Rs. 20,000) was in fact paid and the deed was not an ostensible one. Thus, we hold that the two cheques were cashed by defendant No. 2 Jayantilal and both the transactions were not made merely to make a show of considerations but they were real ones. ( 10. ) THE second point, relates to advance of such a huge amount in favour of defendant No. 2 Jayantilal without any enquiry about his indebtedness, which would not be done in the ordinary course of business and that shows that there was motive behind the transaction. It is an admitted fact that no enquiry was made before advancing the loan, but in our opinion, as we would presently show, from the evidence of the plaintiffs witnesses, defendant No. 2 Jayantilal had good financial position at the relevant time and, therefore, non-making of enquiry cannot be attributed to any oblique motive. Pyarelal (P. W. 2) has admitted in, his evidence that defendant No. 2 Jayantilal had good financial position in the year 1947. Similarly, Rajaram (P. W. 4) has stated that Jayantilal was a shroff in the Imperial Bank of India, which shows his status. If he would have been in a bad financial position he could not have held that office. Similarly, Rajaram (P. W. 4) has stated that Jayantilal was a shroff in the Imperial Bank of India, which shows his status. If he would have been in a bad financial position he could not have held that office. He further stated that the solvent position of Jayantilal could not be doubted, manilal (D. W. 8), Head Munim of the firm M/s Mohanlal Hargovind has stated that he was not aware of the indebtedness of Jayantilal in the year 1947 and he did not make any enquiry since he entertained no suspicion. He knew that Manilal had coal Deposits at many places and, therefore, he may have been in need of money for that business. This part of his statement was attacked by the learned counsel for the plaintiff on the ground that in the sale deed (Ex. 1 d-12) dated 27-1-1948 there is no mention for which money would have been required. In our opinion, the criticism is baseless since the sale deed was effected for repayment of Rs. 60,000 out of Rs. 70,000 together with interest amount. The fact remains that Jayantilal had large coal business which he sold for Rs. 1,000,00 in favour of the firm M/s Mohanlal Hargovind and the entry in that regard is in the kachchi rokar of the firm (Ex. 1 D-100) dated 16-4-1948. Sale of the coal business corroborates the testimony of Manilal (D. W. 8) regarding his belief. We, therefore, see no reason to doubt his testimony, more so when the plaintiffs own witnesses speak about the sound financial position of jayantilal. In the circumstances, even if no enquiry was made about the financial position of Jayantilal before advancing the loan to him by the firm of m/s Mohanlal Hargovind, we are of the opinion that that omission cannot be called wilful as there was no need for that and, therefore, is of no consequence. ( 11. ) THE third point that the mortgage deed (Ex. 1 D-9) was deliberately not registered so as to keep the transaction a secret has been negatived by the evidence of Manilal (D. W. 8) and Shri Shukla Advocate (D. W. 1) who have stated that the mortgage deed was executed on 25-9-1947 at 9. 30 A. M. and at that time defendant No. 2 Jayantilal spoke that he had to attend the bank and it be got registered after some days. 30 A. M. and at that time defendant No. 2 Jayantilal spoke that he had to attend the bank and it be got registered after some days. Whatever may be in the mind of Jayantilal, but there is nothing on record to suggest collusion on the part of the firm m/s Mohanlal Hargovind. Looking to the financial position and status in the bank of Jayantilal he could be relied upon and in doing so there was nothing wrong. Relying upon the evidence of the aforementioned two witnesses we are inclined to hold that the non-registration of the mortgage deed has not been proved by the plaintiff to be a deliberate act on the part of the firm M/s mohanlal Hargovind. It was pointed out to us that Jayantilal in his evidence has stated that he remained in Jabalpur upto the middle of January, 1948 except for a break of 8 or 10 days. He had been drawing hundies for various amounts during the period from the firm M/s Mohanlal Hargovind which is evident from the kachchi rokar entries (Ex. 1 D-39, Ex. 1 D-40, Ex. 1 D-41 and Ex. 1 D-42 ). Therefore, it is surprising that nobody thought of registration of the mortgage deed. The explanation offered by Manilal (D. W. 8), Head Munim of the firm, is that he always thought that although the deed has not been registered but still Jayantilal would send the money on getting information. Jayantilal has stated that he had started living in Bombay for the treatment of his mother sometime from January, 1948. He was a known person and there was no abnormality in his conduct for not registering the mortgage deed although he remained in Jabalpur for a few months after the execution of the said deed. ( 12. ) THE fourth point is that there was no reasonableness in securing agreement of sale (Ex. 1 D-11) for the suit property when under the terms of mortgage-deed (Ex. 1 D-9) the period of repayment was one year. ( 12. ) THE fourth point is that there was no reasonableness in securing agreement of sale (Ex. 1 D-11) for the suit property when under the terms of mortgage-deed (Ex. 1 D-9) the period of repayment was one year. Shri Shukla, advocate (D. W. 1) has stated that registration should be done within four months of the execution of the mortgage-deed, otherwise the document would cease to be security for the loan, and he in the capacity of legal advisor to the firm M/s Mohanlal Hargovind had informed them that either the loan should be recovered or the mortgage deed be got registered before expiry of four months. Manilal (D. W. 8) Head Munim of the firm, has stated that after receiving information from Shri Shukla (D. W. 1) he had sent a message to jayantilal for repayment of the loan or to get the mortgage deed registered. He has further deposed that thereafter defendant No. 3 Kamodchand met him and informed that Jayantilal was unable to repay the loan and, therefore, saledeed should be executed for which he had power of attorney (Ex. 1 D-13 ). In the circumstances, the firm agreed to purchase the suit property for the amount which was recoverable from Jayantilal. According to him, after accounting it was found that Jayantilal was required to repay Rs. 50,000 of the mortgage and rs. 10,000 but of Rs. 20,000 since Rs. 10,000 he had already repaid. Besides that, he had to pay Rs. 1,350 towards interest. Thus, the total amount due was rs. 61,350. According to Shri Shukla (D. W. 1), the final talk about the sale took place on 24-11-1948, i. e. , on the last day of the expiry of four months period since the deed was executed on 25-9-1947 and as the necessary stamps could not be made available so soon for the sale-deed, it was suggested to kamodchand to execute an agreement of sale. Thus, in our opinion, there was no unreasonableness in securing the agreement of sale (Ex. 1 D-11) in relation to the suit property. ( 13. ) THE fifth point submitted for consideration was that the defendant no. 3 Kamodchand, brother of Jayantilal did not have the authority to sell the suit property and, therefore, the sale effected by him on 27-1-1948 vide saledeed (Ex. T-D-12) in favour of Smt. Jadao Bai and Ujjam Bai was invalid. ( 13. ) THE fifth point submitted for consideration was that the defendant no. 3 Kamodchand, brother of Jayantilal did not have the authority to sell the suit property and, therefore, the sale effected by him on 27-1-1948 vide saledeed (Ex. T-D-12) in favour of Smt. Jadao Bai and Ujjam Bai was invalid. We perused the power of attorney (Ex. l-D-13) and found that it was a general one and not special. the said document is widely worded and includes an authority to sell the suit property on behalf of Jayantilal. Therefore, we do not find any defect in the said power of attorney as alleged and hold that the sale cannot be held invalid on the count. In this connection we would like to refer at this stage to the decision of this Court in Smt. Jadao Bai and another v. Ratanchand and others (First Appeal No. 165 of 1953jdecided on 30th June 1958.), (Ex. 1 D-1), in which the same mortgage and sale had been attacked, although by other creditors, on those very grounds pleaded in the present case by another creditor (plaintiff.) In that case, this Court held that there was nothing sinister in the mortgage transaction and subsequent sale of the suit property. That suit was instituted under Order 21, rule 63 and the same was dismissed. That earlier judgment can certainly be looked into for the persuasive purpose that the transactions were not to defraud the creditors. ( 14. ) TO substantiate the plea of fraud the sixth point contended on behalf of the plaintiff was that inspite of the sale of the suit property, defendant No. 2 jayantilal remained in possession of the same which shows colourable nature of the transaction motivated by some oblique motive. The submission is devoid of any substance. No doubt, Jayantilal after the sale of the - suit property stayed in that accommodation, but the period was short and for that he paid rent. This fact is clear from the extracts of kachcha rokar entries (Ex. 1-D 38)of the firm M/s Mohanlal Hargovind. The extracts show credit entries as rent of the bungalow for the month? of February, March, April and May to August, 1948 paid by Jayantilal. There is documentary evidence on record in proof of that the accommodation was subsequently allotted to different Government servants in pursuance of various allotment orders from time to time (Ex. The extracts show credit entries as rent of the bungalow for the month? of February, March, April and May to August, 1948 paid by Jayantilal. There is documentary evidence on record in proof of that the accommodation was subsequently allotted to different Government servants in pursuance of various allotment orders from time to time (Ex. 1-D 15)dated 15-6-1949, Ex l-D-18, Ex-1d-19, dated 1-5-1954, Ex-d-20, dated 3-5-1954, ex. ID 21, dated 5-5-1954, Ex. 1d-16, dated 16-4-1956, Ex. 1d-23, dated 1-5-1956, Ex. 1d-24, dated 5-4-1956, Ex. 1d-25, dated 10-5-1956,ex. ID-26, dated 14-10-1949, Ex. ID 27, dated 23-8-1949 and Ex. 1-D 28 dated 20-6-1949: These allotment order have been addressed to the firm M/s Mohanlal Hargovind and to defendant No. 1 Shravan Kumar as he had become owner of the suit property on the basis of the gift. There are receipts for realization of rent on record (Ex. 1d-29 and Ex-1-D30 ). The statement of account of the State Bank of India of the firm M/s Mohanlal Hargovind showing some entries about the deposit of rent received is Ex. 1d-31. We, therefore, hold that Jayantilal had parted with his possession after sale of the suit property in favour of the transferees, who became owner thereof with possession. ( 15. ) IT would suffice to say for the seventh point that no inference of fraud against the creditors can be drawn because defendant No. 2 Jayantilal was carrying on business in various names such as Dhanwant Brothers, Majumdar and Co. and Anil Brothers. ( 16. ) AS regards the eight point, which was raised on behalf of the plaintiff, we must say that it is to show that the sum of Rs. 70,000/- which was paid by two cheques was returned by defendant Jayantilal by executing hundies in favour of the firm M/s Mohanlal Hargovind from time to time. According to the learned counsel for the plaintiff, the transaction of the mortgage of the suit property was nothing but entered into to defraud the creditors and to save the said property somehow or the other. It is no doubt true that Jayantilal took advances from the firm M/s Mohanlal Hargovind on the basis of hundies but the copies of the account book of the firm in relation to the advances on the basis of hundies do not show that Jayantilal returned the amount to the firm out of the sum of Rs. 70,000. It is no doubt true that Jayantilal took advances from the firm M/s Mohanlal Hargovind on the basis of hundies but the copies of the account book of the firm in relation to the advances on the basis of hundies do not show that Jayantilal returned the amount to the firm out of the sum of Rs. 70,000. Learned counsel appearing on behalf of the plaintiff referred to us extracts from kachcha rokar of the firm M/s Mohanlal Hargovind viz. , Ex-1d-17, Ex. ID 39, Ex. 1d-40, Ex. 1d-41 and Ex. 1d-42. A perusal of these documents would show that Ex. ID-17 relates to drawing of Rs. 21,200 by Jayantilal as advance on the basis of four hundies and the firm issued a cheque no. 01219 dated 25-9-1947 Ex. ID-39 shows that Mujumdar and Co. gave two hundies worth Rs. 20,600 and two cheques No. BA2 01226 and BA 2 01228 both dated 1-10-1947 for that amount were issued in favour of the company. Ex-1 D-40 shows that three hundies were given to the firm by Majumdar and Co. and a cash payment of Rs. 17,400 was made Ex. 1d-41, is an entry relating to advance of Rs 21,000 in lieu of four hundies and a cheque No. BA 11808 dated 30-11 1947 was issued. Ex. 1d-42 is the entry dated 5-11-1947 for the advance of Rs. 15,400 on the basis of 2 hundies. There is no evidence on record to show that these cheques were not cashed. The burden was on the plaintiff to prove that the money which was received by Jayantilal from the Bank was ever returned to the firm M/s Mohanlal Hargovind, which he utterly failed to do. In fact there is no evidence on record nor any suggestion was made about the return of money. We are, therefore, convinced that these documents are of no use for holdings about the return of any amount out of Rs. 70,000 taken by Jayantilal. ( 17. ) OUR attention was also invited to kachchi rokar debit side entry (Ex. 1d-37) dated 24-3-1948 of the firm M/s Mohanlal Hargovind relating to sale of the suit property in favour of Smt. Jadao Bai and Smt. Ujjam Bai and the absence of credit side entry in that. 70,000 taken by Jayantilal. ( 17. ) OUR attention was also invited to kachchi rokar debit side entry (Ex. 1d-37) dated 24-3-1948 of the firm M/s Mohanlal Hargovind relating to sale of the suit property in favour of Smt. Jadao Bai and Smt. Ujjam Bai and the absence of credit side entry in that. With the consent of the learned counsel for the plaintiff we saw the original rokar and found that there is an entry but the same was omitted while filing extracts of other entries. The only defect then pointed out was that the entry was not made on one and the same date or on a later date. May be, but, in our opinion, since we have held on appreciation of the evidence that the sale was real, the difference in dates with regard to the entry would be of no consequence. ( 18. ) THE nineth point related to disposal of the entire property by Jayantilal within a short period. That may be so, but in the absence of any evidence that Jayantilal was heavily indebted was within the knowledge of any member of the firm M/s Mohanlal Hargovind and he was selling the entire property to defraud the creditors, the purchase of the suit property could not be held as an act of help on the part of the firm M/s. Mohanlal Hargovind, to Jayantilal in deceiving his creditors to save the property from falling into their clutches. We may also point out that no question was put by the plaintiff to the defendants witnesses about the knowledge of alleged various debts. ( 19. ) THE tenth point was that defendant No. 1 Shravan Kumar did not in his written statement plead that he is a bona fide transferee under section 53 of the Transfer of Property Act and, therefore, all the pleas raised by him to protect the suit property from attachment and sale in execution of the decree cannot be considered. We do not agree with the contention. It is true that such a plea has not been raised in the written statement, but that would not affect the merit of his case as we have already held that the sale in favour of smt. Jadao Bai and Smt. Ujjam Bai of the firm M/s Mohanlal Hargovind was not ostensible and they had become owners of the suit property. Jadao Bai and Smt. Ujjam Bai of the firm M/s Mohanlal Hargovind was not ostensible and they had become owners of the suit property. The defendant No. 1 being donee by virtue of the gift executed in his favour by Smt. Jadao Bai and Smt. Ujjam Bai and so long as the original sale in favour of these two ladies could not be held invalid, omission on the part of defendant no. 1 Shravan Kumar to raise the said plea in his pleading would be of no consequence. ( 20. ) THE arguments in relation to the eleventh point centered round the denial of opportunity by the trial Court to the plaintiff to examine three of his witnesses (creditors) namely, Dhanyakumar, Sampatlal and Banshilal in support of his case to prove heavy indebtedness of Jayantilal. The record of the case shows that the plaintiff either did not pay process or when the witness did not come in compliance with the order of the Court to give his evidence, no efforts were made by the plaintiff to secure his presence by issuance of a warrant. Having failed to do so, the plaintiff must thank himself and no blame can be laid against the trial Court in denying him an opportunity to examine those witnesses. ( 21. ) THE last and the twelfth point that was canvassed before us was that there were outstanding decrees against Jayantilal at the time of the transaction of the suit property. In this connection our attention was drawn to the decree dated 17-9-1949 (Ex. P-3) for Rs. 2000 and the decree in pursuance of the judgment (Ex. P-6) dated 9-9 1954 in Civil Suit No. 5-B of 1951 for Rs. 24,877/8-But both the decrees are subsequent to the date 27-1-1948, i. e. , the date of the sale of the suit property and, therefore, cannot be taken into consideration for deciding the controversy of the present suit. The third decree referred to is in pursuance of the judgment (Ex. P-5) dated 28-8-1942 passed in Civil Suit No. 38 of 1942 for Rs. 10,370/2/9. No doubt the decree for Rs. 10,370/2/9 is of an anterior date to the sale, but there is no evidence that the said decree was still outstanding in the year 1947. ( 22. ) WE were referred to certain citations at the bar. P-5) dated 28-8-1942 passed in Civil Suit No. 38 of 1942 for Rs. 10,370/2/9. No doubt the decree for Rs. 10,370/2/9 is of an anterior date to the sale, but there is no evidence that the said decree was still outstanding in the year 1947. ( 22. ) WE were referred to certain citations at the bar. But each case has to be decided on its own facts. In support of our point of view, we would like to mention a passage from Quinn v. Leathern (1901 AC 495 p. 506) which reads as under: ". . . . Now, before discussing the case of Allen v. Flood ( (1898) AC 1) and what was decided therein, there are two observations of a general character which I which to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to bs proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that- may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical cade, whereas every lawyer must acknowledge that the law is not always logical at all. My Lords, I think the application of these two propositions renders the decision of this case perfectly plain, notwithstanding the decision of the case of Allen v. Flood. " Learned counsel for the plaintiff relied upon the case of Picha Moopanar v. Velu Pillai and another (AIR 1947 Mad. 203.)5. The facts of that case are entirely different from those of the present case. In that case, in a partition between father and his two sons, no property was allotted to the father. All the properties were divided between the two sons. The debts of the father were distributed between the two sons and the sons were directed to pay them off separately. In that case, in a partition between father and his two sons, no property was allotted to the father. All the properties were divided between the two sons. The debts of the father were distributed between the two sons and the sons were directed to pay them off separately. In those circumstances, it was held that the provision for payment of debts though made in the deed was absolutely illusory and the partition was fraudulently entered into with a view to defraud the creditors. Hence this case has no application to the present one. The second case referred was that of Bachan Singh Har-nam Singh v. Banarsi Basa Hari Ram and another (AIR 1961 Pun. 361) in which the Division Bench of Punjab High Court observed as under: "it is perfectly correct, as contended by the appellant, that, however, suspicious a transaction, the Courts decision must always be based on legal grounds, legally brought on the record, and it must never rest on suspicions or on the Courts mere moral convictions; and the burden of successfully assailling the transaction also initially lies on the creditors. It is, however, equally settled that when the creditors have established facts, which show the prima facie intention of the debtor to defeat or delay the creditors. It is then for the debtor to meet the case made out and to explain the facts. In this connection, it has to be borne in mind, that, according to general law, a man is presumed to intend the natural consequences of his acts, and further, that, fraud, from its very nature, has necessarily to be established by circumstantial evidence. The facts which militate against the bona fides of a transaction and whose cumulative effect establishes fraud, are many and varied, and unexplained secrecy is, by and large, considered to be a badged of fraud, whereas notoriety might well rebut a presumption of fraud. Though all facts are to be considered cumulatively, yet the facts that the debtor-transferee (transferor) is in embarrassed circumstances (proceedings for attachment of his property having been initiated) and the transaction is between close relations. Though all facts are to be considered cumulatively, yet the facts that the debtor-transferee (transferor) is in embarrassed circumstances (proceedings for attachment of his property having been initiated) and the transaction is between close relations. Who are otherwise not shown to be inimical to each other, may constitute good prima facie evidence of fraudulent intention; this would be still more so, when the entire property has been transferred by the debtor and no reliable evidence of the bona fides of the transferee has been placed on the record. " We may mention that in the above mentioned case the transaction was between close relative and no reliable evidence of the bona fides of the transferee was placed on record. So the said decision on those facts cannot be made applicable to the present case. But the earlier part of para. 5 of the judgment has laid down the rule of law with which we concur. The third judgment referred was of the Supreme Court in C. Abdul Shukoor Saheb v. Arja Papa Rao ( AIR 1963 SC 1150 ). Even this case is distinguishable on facts. In that case there were substantial debts and no substantial property was there to discharge them. A pressure was exerted on the defendant by the creditors immediately prior to the impugned sale and which in the normal course of events would be relevant for proving that the sale was effected in order to put the property beyond the reach of the creditors by converting it into cash. The last important fact in that case was that though the properties were at Vizianagaram, the document was registered at Madras and the suggestion made to the plaintiff was that this was meant as a measure of secrecy to keep the alienation away from the knowledge of the creditors. ( 23. ) LEARNED counsel for defendant No. 1 cited three cases of the Privy council, namely. ( 23. ) LEARNED counsel for defendant No. 1 cited three cases of the Privy council, namely. Naba Kishore Mandal v. Upendra Kishore Menda (AIR 1922 PC 39); Kalyan mai V. Ahmad Uddin Khan and another (AIR 1934 PC 208) and Chandra Kishore Tewari and others v. Deputy Commissioner of Lucknow in Charge of Court of Wards and another (AIR 1949 PC 207)in support of his submission that in every appeal it in incumbent upon the appellant to show some reason why the judgment appealed from should be disturbed ; there must be some balance in his favour when all the circumstances are considered to justify the alteration of the judgment that stands. In our opinion, the burden to show that the suit property was capable of being attached was on the plaintiff and he failed to tender evidence to prove that the transaction was defective. Even before us, learned counsel for the plaintiff for his submissions mainly relied upon the evidence of the contesting defendant no. 1. But we are of opinion that the said defendant from his evidence, both oral and documentary, has established his case successfully. ( 24. ) IN the present case, on the basis of the discussion made above, we affirm the conclusions reached by the trial Court in paras. 32 and 33, of its judgment which read as under: "it was in the usual course that firm Mohanlal Hargovind agreed to advance loan to jayantilal. The transaction is certainly not bit by section 53 of the Transfer of Property act. Jadao Bai and Ujjam bai were transferees in good faith and for good consideration. The conclusion is that the sale-deed cannot be attacked either as sham transaction or as a transaction entered into to defraud creditors. The property had ceased to be that of Jayantilal on 27-1-1948. It was not liable to be attached. The plaintiff cannot get the declaration sought. " ( 25. ) FOR the reasons stated above, this appeal fails and is dismissed with costs. Counsels fee as per schedule or a certificate, whichever is less. Appeal dismissed.