JUDGMENT: Narain Sinha. S. K. Jha, J., This appeal by defendant no. 1 has been placed before me for hearing, as two learned Judges of this Court have differed not on a question of law but purely on an appraisal of the evidence adduced in this case. U. C. Sharma, J. on an appreciation of the evidence, has come to the conclusion that the appeal be allowed while V. Mishra, J. has concluded that the appeal be dismissed with costs. 2. This appeal has been filed by defendant no.1 since the trial court had decreed the suit. The impugned judgment and decree was passed by the learned subordinate Judge, Jamshedpur, in Title Suit no. 61 of 1969 on the 22nd of December, 1973. By this judgment the trial court has found that the subject matter of the properties involved in the suit belongs to defendant no.2 and that defendant no. 1 had no interest there in. The suit premises are comprised of a coal depot holding situate at Gosala, I Town, Jamshedpur, together with the building there on. It may be worth while to mention at the outset that the suit was filed under the provisions of Order 21 Rule 63 of the Code of Civil Procedure (hereinafter to be referred to as the 'Code'). 3. Although the facts have been concisely stated in the judgment of V.C. Sharma, J., it is worth while to take note of some facts having a bearing on the decision of the question at hand. The plaintiff respondent, inter alia, had filed a Money Suit no. 104 of 1967 for realisation of Rs. 42,000/-against defendant no 2. In that suit the plaintiff took steps for attachment of the property in question before judgment. The properties were attached. Thereafter, defendant no.2 allegedly got a claim case under Order 38 Rule 8 of the Code filed by defendant no. I against the aforementioned attachment. Defendant no. 1 sought to make out a case in the claim case that he had purchased the properties in question for a consideration of Rs. 4,000/-by a registered sale deed dated 7th August, 1967 in pursuance of a previous agreement between them. It is pertinent to take note of a very important fact here that the appellant (defendant no.1) Shiba Prasad Mukherjee is none else than a son of Sarojakshya Mukherjee, defendant no.2. 4,000/-by a registered sale deed dated 7th August, 1967 in pursuance of a previous agreement between them. It is pertinent to take note of a very important fact here that the appellant (defendant no.1) Shiba Prasad Mukherjee is none else than a son of Sarojakshya Mukherjee, defendant no.2. According to the case of the plaintiff, the two defendants were in collusion with each other and the alleged transaction was set up merely in order to defeat the right of the plaintiff as decreed in the money suit. It was further the case of the plaintiff that no consideration for either the agreement or the sale deed ever passed and the sale deed being sham and inoperative was void and the appellant, defendant no.1, had acquired no right, title or interest in the property in question. The plaintiff was accordingly entitled to proceed for attachment of the properties involved as being those of defendant no. 2. The claim made under Order 38 Rule 8 of the Code, however, having been allowed, the plaintiff filed the instant suit under Order 21 Rule 63 of the Code. Since the claim of Shiba Prasad Mukherjee had been allowed, he was impleaded as defendant no. 1 and his father vendor, Sarojakshya Mukherjee (judgment-debtor), was arrayed as defendant no. 2. Although two separate written statements were filed on behalf of the two defendants, their case was common. It was their case that the business of coke and coal of Goshala, I Town, was being carried an by defendant no. 1 as he was the owner of the premises and the house situated in the premises. Their further case was that the plaintiff, with full knowledge that defendant no. 2 had no manner of right, interest or possession over the properties, prayed for an attachment on wrong and false allegations. They pleaded the genuineness of the transactions of agreement for sale and the sale deed in question. According to their case, out of a consideration of Rs. 4, 000/-, Rs. 2,000/- was paid at the time of the agreement and the rest was paid on the execution of the sale deed. They further averred that before the execution of the agreement in question defendant no. According to their case, out of a consideration of Rs. 4, 000/-, Rs. 2,000/- was paid at the time of the agreement and the rest was paid on the execution of the sale deed. They further averred that before the execution of the agreement in question defendant no. 2, the judgment debtor, had filed an application in the office of the Land Acquisition Department of the landlord, namely, the Tata Iron and Steel company Ltd. for permission to transfer the properties. After the completion of the sale, even the name of defendant no. I was mutated and thereafter he was coming in possession of all the properties involved and had been carrying on the business of coal and coke• in the said premises. 4. Evidence both oral and documentary was thereafter adduced and the trial Court, on an appraisal of the same, decreed the plaintiff's suit. Defendant no. 1 feeling aggrieved by the decree and rejection of his claim, has come up in appeal to this court. The sole question to be decided is as to whether, on the evidence on record, the appellant, defendant no. 1, has been able to succeed in proving his case that a genuine transaction of sale had been effected between him and his father defendant no. 2, which had passed on all right, title and interest in respect of the properties in question to him and that, therefore, the properties could not have been attached nor could the suit have been decreed in favour of the plaintiff involving the properties in suit. 5. U.C. Sharma, J., has held that a very heavy onus lay on the plaintiff to establish his right to have the properties attached which he had failed to discharge whereas V. Mishra, J., has held that the question of onus was immaterial where both the parties had adduced evidence and that the burden of proof had been discharged. I do agree that the weight of onus probendi in such cases may be heavy on the plaintiff. That, however is immaterial, for the disposal of the case. Whether the weight of such onus be rigorous or not is of little consequence in this case because whatever be the standard of such onus it has to be judged by an appraisal of the evidence already on record. That, however is immaterial, for the disposal of the case. Whether the weight of such onus be rigorous or not is of little consequence in this case because whatever be the standard of such onus it has to be judged by an appraisal of the evidence already on record. I have, therefore only to examine and consider as to whether the onus on the plaintiff to prove that the properties involved belonged to defendant no. 2 and not defendant no. 1 has been discharged or not. This at once leads me to go into the evidence adduced in this case along with the attending circumstances which are very speaking. I need not therefore, detain myself over a consideration of the case Jaw with regard to the weight of the onus probandi in such cases. 6. As has already been stated above, the alleged transaction of sale is between the father (defendant no. 2) and his son (defendant no. 1 appellant) and the only question to be decided is as to whether the transaction was genuine or sham and inoperative merely shown to have been entered into for the purpose of defeating the creditors. In this case the following circumstances were vehemently relied upon by learned counsel for the respondents in supporting the judgment of the trial court: (i) Defendant no. 2 was heavily in debts. (ii) For the purpose of saving his properties from the creditors, defendant no. 2 made a show of transfer of all his assets. (iii) Defendant no. 2 filed an insolvency petition before the learned District Judge. (iv) In spite of the alleged execution of the sale deed, defendant no. 2 continued in possession of the properties. (v) The evidence had to be weighed with great care and caution as the transaction is said to have been entered into between the father and a son. (vi) It had not been proved that the appellant (defendant no. 1) had receive any money from his maternal grandfather (Nana) for the purchase of the properties in question These circumstances, however, have to be judged in the light of the evidence on record. 7. The sale deed in question has been marked Ext. C in this case and the preceding agreement Ext B. Ext. B recites that the father, namely, defendant no. 2 was in need of money for his business. That necessitate to sell his properties in question. 7. The sale deed in question has been marked Ext. C in this case and the preceding agreement Ext B. Ext. B recites that the father, namely, defendant no. 2 was in need of money for his business. That necessitate to sell his properties in question. The property includes a pucca house containing 6 rooms, a latrine, a bath room, a verandah, a courtyard and a coal depot within the same holding. Defendant no. 2 offered to sell all these properties for a sun of Rs. 4,000/-only in the year 1967. Ext. B further points out that when he made such a proposal, the maternal grandfather of defendant no. 1 came and offered to purchase the properties in question for him (defendant no. 1). He accordingly paid a sum of Rs. 2,000/- at the time of the entering into the agreement. He further promised to pay the balance of the remaining Rs. 2,000/-at the time of the execution of the sale deed itself. The evidence adduced On behalf of the appellant in the case is to the effect that Rs. 2,000/- was paid at the time when the agreement (Ext. B) was entered into and the balance of Rs. 2,000/- was paid at the time of the registration of the sale deed. In so far as the payment of Rs. 2,000/-at the time of the agreement is concerned, Ext. B itself' mentions about the receipt of such money. But with regard to the balance of the consideration money, although it is alleged that it was paid in the registration office at the time of registration, it was not so done before the registering authority, namely the Sub-Registrar. Learned counsel for the appellant relied upon the evidence of D.W. 2 for the purpose of showing that the balance of the consideration money was paid. He has deposed to the effect that a receipt was also ranted for the same. Curiously enough, he has admitted that such a receipt was on a blank piece of paper. Even that blank piece of paper has not been produced in this case. It does not stand to reason as to why, if the balance of the consideration money, namely, Its. 2,000/- was paid at the time of the registration of the document (Ext. C) it was not so paid before the Sub-Registrar. Even that blank piece of paper has not been produced in this case. It does not stand to reason as to why, if the balance of the consideration money, namely, Its. 2,000/- was paid at the time of the registration of the document (Ext. C) it was not so paid before the Sub-Registrar. One also fails to find any reason behind the fact of payment outside the registration office against a blank piece of paper and that too is not produced in the Case as a piece of evidence. In my view, therefore, the payment of the balance consideration money for the execution of the sale deed was not paid at all if they were a genuine deed of agreement (Ext. B). Although it is a well settled principle of law that a stranger to a transaction cannot question the passing of the consideration under a deed of transfer, in this case the so called transaction has to be viewed with a great amount of caution and circumspection-specially having regard to the son. It is on record that defendant no. 2 had more than one Son. There is another significant factor which needs consideration. The purpose for which the transaction was entered into, as evidenced by Exts. Band C, is only that defendant no. 2 was in need of money for business. For what sort of business-no One knows. An inference can very well arise in the mind of a prudent man that such a business was for the purpose of defeating the claim of the creditor. 8. Numerous decisions were cited on the question of onus probandi. But, as I have already stated above, where both parties have gone into evidence, the evidence has to be appraised as it is. If the evidence on record does show that there has been a fraudulent effort on the part of the debtor to defeat the claim of the creditor, it goes without saying that the transaction entered into between the father and his son is, presumably, to defeat the claim of the creditor. Irrespective of the claim of the creditor and the debtor, it is sufficient to indicate that the so-cal1ed transaction or transaction between the father and the son was meant to defeat the claim of the creditor. Irrespective of the claim of the creditor and the debtor, it is sufficient to indicate that the so-cal1ed transaction or transaction between the father and the son was meant to defeat the claim of the creditor. In such circumstances, I have no hesitation in holding that howsoever heavy the onus probandi be on the part of the respondent, the case of the appellant about the transaction having been entered into between him and his father was merely a device to defeat the claim of the creditor respondent. In the circumstances aforementioned, I fully agree with the judgment of V. Mishra, J. In my view, therefore, on the facts and in the circumstances of the case, the appeal should be dismissed. 9. I accordingly agree with the view of V. Mishra, J., and dismiss the appeal with costs throughout. Appeal dismissed.