JUDGMENT P. Janaki Amma, J. 1. The appellants in these two Second Appeals are alienees certain properties from one Thommi Mathew who has been adjudicated insolvent by an order dated 26th November, 1965, in I.P.No. 7 of 1964. The properties of the insolvent now vest in the official receiver. The official receiver filed two petitions I.A. 2968/66 and I.A. 2869/66 for declaration that two documents of sale Ext. P-1 dated 17th May 1961 and Ext. P-2 dated 9th January 1961 executed by Thommi Mathew are sham documents and that the properties covered by them belonged to the insolvent. The vendees under the documents contested the claim. The insolvency court as also the District Judge, Kottayam in appeal overruled the objections and held that the documents did not convey title to the vendees. These Second Appeals are preferred against the above decision. 2. The insolvent Thommi Mathew was a chitty foreman. In the petition field on 16th September 1964 for adjudicating him as insolvent he mentioned 19 items of debts which came to a total of Rs. 41,350. The debts included 5 decrees obtained against him, one of them being O.S. 198/1123 (M.E.) The other decrees are of the years 1961, 1962 and 1963. The remaining items of debts are amounts due to the subscribers under chitty. The only item of property mentioned in the petition is a purayidom having an extent of 27 cents and valued by him at Rs. 1,500. After the vesting order the official receiver filed the above petitions alleging that Exts. P-1 and P-2 are sham transactions and that title and possession of the items mentioned therein were retained by the insolvent. The vendee under Ext. P-1 is the husband of the insolvents wifes sister, while the vendee under Ext. P-2 is the brother of the insolvents wife. Ext. P-1 mentions a consideration of Rs. 3,000 and states that Rs. 2,500 has been received by the insolvent from the vendee on previous occasions and that Rs. 500 was paid in cash on the date of the document. The whole of the consideration under Ext. P-2 namely, Rs 2,000 is made up of amounts which the insolvent is alleged to have borrowed from the vendee on previous occasions. 2,500 has been received by the insolvent from the vendee on previous occasions and that Rs. 500 was paid in cash on the date of the document. The whole of the consideration under Ext. P-2 namely, Rs 2,000 is made up of amounts which the insolvent is alleged to have borrowed from the vendee on previous occasions. The main contention put forward on behalf of the appellants is that the applications were not maintainable as they were filed beyond two years of the dates of the documents. According to the appellant the documents could be challenged only under section 53 of the Transfer of Property Act. The courts below however held that the transactions came under the purview of section 4 of the Insolvency Act and that petitions were therefore maintainable. 3. The point to be considered is whether the applications filed were maintainable in the courts below. 4. The question has been raised in a number of cases as to whether in the case of a document of transfer which apparently conveys title but where the transferor retains possession and control over the property and the parties never intended that the document should be acted upon, it is necessary to avoid the transfer by filing a suit under section 53 of the Transfer of Property Act and whether the court has power to decide the real character of the document in a petition filed under section 4. In Muthiriyen v. Official Receiver, A.I.R. 1943 Mad. 252 the Madras High Court while considering the question observed: "The law is fairly clear that in matters of this kind section 53 is not exhaustive and that applications can be made under section 4 where the petitioner asserts that the transaction which he wishes to set aside is a sham and nominal one. It is therefore no impediment to the reception of this application by the court under section 4 that the alienation in question was more than two years before the insolvency."� 5. A Full Bench of the Bombay High Court had occasion to deal with the question in Padamsi Premchand v. Laxman Vishnu, A.I.R. 1949 Bombay 129 (F.B.). It is therefore no impediment to the reception of this application by the court under section 4 that the alienation in question was more than two years before the insolvency."� 5. A Full Bench of the Bombay High Court had occasion to deal with the question in Padamsi Premchand v. Laxman Vishnu, A.I.R. 1949 Bombay 129 (F.B.). After discussing the provisions of section 4 and section 53 of the Provincial Insolvency Act corresponding to sections 4 and 54 of the Kerala Act, Chagla, C.J. dealt with the question as follows: "In this particular case the Receiver challenged these three deeds of transfer on the ground that they were not intended to transfer the real interest of the insolvent in the properties. Therefore, on the allegation of the Receiver no title passed under these deeds of transfer to the transferee. In our opinion transactions which are challenged on the ground of their being fictitious or nominal do not fall within the ambit of section 53. If they do not fall within the ambit of section 53, then section 4 is wide enough to confer upon the Insolvency Court jurisdiction to decide whether these transactions were in fact nominal or fictitious."� The principles underlying the above decisions should be followed in applying the provisions of section 4 of the Kerala Insolvency Act also. 6. The further question is whether the transactions under Exts. P-1 and P-2 were real or fictitious. There is no doubt that where execution of a document is admitted the onus is on the person who challenges the transaction as sham to prove that no consideration passed under it. That the vendee is a near relation and that the transaction was on the eve of filing of an insolvency petition are not by themselves sufficient to rebut the presumption that the consideration mentioned in the document was actually paid. But payment of consideration being a matter within the exclusive knowledge of the vendor and vendee, a stranger who challenges the document can prove his case by bringing out circumstances which belie the case of passing of consideration. Coming to the facts of the present case, the insolvent here was a foreman of a chitty. He owed amounts to a number of persons. That he was in embarrassing circumstances is clear from the fact that suits were filed against him near about the date of execution of Exts. Coming to the facts of the present case, the insolvent here was a foreman of a chitty. He owed amounts to a number of persons. That he was in embarrassing circumstances is clear from the fact that suits were filed against him near about the date of execution of Exts. P-1 and P-2. The vendees under Exts. P-1 and P-2 are close relations of the insolvent. The recital in Ext. P-1 is that out of the consideration of Rs. 3,000, Rs. 2,500 was covered by payments already made. Only the balance is recited as paid in cash on the date of the document. In Ext. P-2 the whole of the consideration of Rs. 2,000 is made of amounts which the vendee is stated to have paid to the vendor on different occasions previously. None of these payments is borne out by any receipt or other documents. The account books of neither the vendor or the vendees are available. Both the vendees when examined in court admitted that they had no bank balance on the relevant dates. There are no definite materials to show that they were in a position to pay the consideration. On the side of the official receiver four witnesses have been examined. All of them swear that the properties are in the possession of the insolvent and that the income thereof is being taken by him. No independent evidence oral or documentary has been produced to show that the vendees have been taking the income of the property. It is the admitted case that the insolvent still resides in one of the properties transferred to the vendee under Ext. P-2. The explanation of the vendee that the he has allowed his sister to stay in the house and that the insolvent stays there only occasionally is insufficient to rebut the testimony of P.W.s. 1 to 4 that the insolvent is residing in the property. The only item of property not covered by Exts. P-1 and P-2 and retained by the insolvent was worth only Rs. 1,500 as is seen from the petition filed by the insolvent. The necessary inference is that Exts. P-1 and P-2 were executed by the insolvent by way of preparation for the filling of the insolvency petition and in order to screen away his properties from the reach of the creditors. 1,500 as is seen from the petition filed by the insolvent. The necessary inference is that Exts. P-1 and P-2 were executed by the insolvent by way of preparation for the filling of the insolvency petition and in order to screen away his properties from the reach of the creditors. The insolvency court and the District Court were therefore justified in holding that Exts. P-1 and P-2 are only nominal transactions conveying no title to the vendees. Section 4 of the Insolvency Act applies to the transactions. The decisions of the courts below do not require interference. These Second Appeals therefore fail and are dismissed with costs.