JUDGMENT : K. BABU, J. 1. This Regular Second Appeal arises from the judgment and decree dated 22.01.2001 in O.S. No. 163/1998 passed by the Munsiff’s Court, Kuthuparamba. The plaintiff is the appellant. 2. Material facts relevant for the adjudication of this appeal are as follows: 2.1 The plaint schedule property is 1 Acre and 52½ cents of land comprised in re-survey No. 165/2 of Muzhakkunnu village. 2.2 The plaint schedule property originally belonged to one Vadakke Naduvathezhath Padmakshi, the mother of defendant No. 2. She acquired title over the property under settlement deed No. 1811/81. Padmakshi assigned the property to defendant No. 2 as per the assignment deed dated 18.11.1989. As per Exhibit A1 sale-deed dated 04.03.1992, defendant No. 2 assigned the property in favour of the plaintiff. She is the absolute owner in possession of the plaint schedule property. At the time of execution of the sale-deed, defendant No. 2 had assured that the plaint schedule property was free from all encumbrances. 2.3 On 01.03.1998, defendant No. 1, the Manager of the Syndicate Bank, Peravoor approached the plaintiff and told her that the wife of defendant No. 2 had availed a loan from the bank to which defendant No. 2 was a guarantor. Accordingly, defendant No. 1 represented to the plaintiff that he would proceed against the plaint schedule property for realising the loan amount availed by the wife of defendant No. 2, as they committed default. 2.4 According to the plaintiff, she is a bona-fide purchaser. She purchased the plaint schedule property for valid consideration. The transaction covered by Exhibit A1 is genuine. Defendant No. 1 has no right to proceed against the plaint schedule property. The plaintiff is in exclusive possession of the plaint schedule property. 2.5 Defendant No. 1 resisted the claim of the plaintiff. He contended that Smt. Usha, the wife of defendant No. 2, had availed a sum of Rs. 12,000/- from the bank on 18.01.1990. Defendant No. 2 was a guarantor to the said loan transaction. At the time of availing the loan, he had produced the revenue receipt in respect of the plaint schedule property to show that he was in possession of the property. Based on the documents produced by defendant No. 2, a loan was sanctioned in favour of Smt. Usha. Defendant No. 2 was a guarantor to the said loan transaction. At the time of availing the loan, he had produced the revenue receipt in respect of the plaint schedule property to show that he was in possession of the property. Based on the documents produced by defendant No. 2, a loan was sanctioned in favour of Smt. Usha. Defendant No. 1 contended that even after repeated demands, the loan amount was not repaid within the stipulated time. In 1997, the bank resorted to revenue recovery proceedings. Defendant No. 1 further pleaded that the plaintiff is only a name lender to the transaction referred to in Exhibit A1. The plaintiff is a neighbour of defendant No. 2. Exhibit A1, stated to have been executed by defendant No. 2 in favour of the plaintiff, is a sham document, and the transaction is a fraudulent one. Therefore, the plaintiff is not entitled to a prohibitory injunction as prayed for. 3. The Trial Court dismissed the suit holding that Exhibit A1 sale-deed is a sham document. 4. The plaintiff challenged the decree and judgment of the Trial Court before the Subordinate Judge's Court, Thalassery in A.S. No. 62/2001. The First Appellate court confirmed the findings of the Trial Court. 5. On 08.12.2005, this Court admitted the appeal and issued notice on the following substantial questions of law: “(1) Are the courts below correct in finding that Ext.A1 is a sham document solely for the reason that the consideration passed is low? (2) Are the courts below correct in totally discarding Ext.A1 to A3 and oral evidence of PW-1 in the light of the fact that the defence has not adduced any evidence?” 6. Heard Shri. Cibi Thomas, the learned counsel for the appellant/plaintiff and Shri M.P. Ashok Kumar, the learned counsel for respondent No. 1/defendant No. 1. 7. The plaintiff instituted the original suit seeking a permanent prohibitory injunction to restrain defendant No. 1 from proceeding against the plaint schedule property for realizing the amount due to the Syndicate Bank, Peravoor [the Bank] from the wife of defendant No. 2. The plaint schedule property originally belonged to the mother of defendant No. 2. The wife of defendant No. 2 availed a loan of Rs. 12,000/- from the Bank. Defendant No. 2 was a guarantor to the loan transaction. The loan was availed on 18.01.1990. 8. The plaint schedule property originally belonged to the mother of defendant No. 2. The wife of defendant No. 2 availed a loan of Rs. 12,000/- from the Bank. Defendant No. 2 was a guarantor to the loan transaction. The loan was availed on 18.01.1990. 8. The plaintiff acquired title and possession over the plaint schedule property by virtue of Exhibit A1 dated 04.03.1992. 9. The case of defendant No. 1 is that the transaction covered by Exhibit A1 is a ‘sham transaction’ and it was created only to prevent the Bank from realising the amount due to it. 10. The whole thrust of the impugned judgments is that the transaction covered by Exhibit A1, between defendant No. 2 and the plaintiff in respect of the plaint schedule property is to be treated as a sham transaction. 11. The classic definition of a sham transaction is given by Diplock L.J. in Snook vs. London and West Riding Investments Ltd. (1967) 2 QB 786, as follows: “As regards the contention of the plaintiff that the transactions between himself, Auto Finance and the defendants were a “sham” it is, I think, necessary to consider what, if any, legal concept is involved in the use of this popular and pejorative word. I apprehend that, if it has any meaning in law, it means acts done or documents executed by the parties to the “sham” which are intended by them to give to third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create.” 12. Dipock L.J. went on to say: “But one thing, I think, is clear in legal principle, morality and the authorities [See: Yorkshire Railway Wagon Co. vs. Maclure and Stoneleigh Finance Ltd. vs. Phillips] that for acts or documents to be a “sham” with whatever legal consequences follow from this, all the parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating. No unexpressed intentions of a “shammer” affect the rights of a party whom he deceived. There is an express finding in this case that the defendants were not parties to the alleged “sham.” So this contention fails.” 13. In Rangappa vs. Rangaswami, AIR 1925 Mad. No unexpressed intentions of a “shammer” affect the rights of a party whom he deceived. There is an express finding in this case that the defendants were not parties to the alleged “sham.” So this contention fails.” 13. In Rangappa vs. Rangaswami, AIR 1925 Mad. 1005 , the Madras High Court held that the essence of a sham transaction is that though a registered deed is brought into existence no title of any kind, either legal or beneficial is intended to be passed thereby to any person whatsoever, that is to say, the deed of transfer is not intended to effect any transfer of property. The Court further held that, if the deed of transfer is made with the intention of placing the property in the name of a third person, the intention clearly amounts to a transfer of the legal title and such a transaction can scarcely be called a sham transaction. 14. The ‘sham’ transaction regarding a document refers to the execution of such document by the parties to the sham with intent to give to the third parties the appearance of creating between them legal rights and obligations different from the actual legal rights and obligations which the parties intended to create. Moreover, the parties to the ‘sham’ must have the common intention that the documents are made to create the legal rights and obligations that they give the appearance of creating. 15. The intention of the parties to the ‘sham’ in entering into the transaction is the true test to decide whether the transaction is sham. 16. It is trite that the burden of proving that a particular sale is sham and the apparent purchaser is not the real owner always rests on the person asserting it to be so. This burden must be strictly discharged by adducing legal evidence of a definite character, which would either directly to prove the factum of ‘sham’ or establish the circumstances unerringly and reasonably raising an inference of that fact. 17. For determining whether a transaction is a sham or not, there cannot be any absolute formula or acid test uniformly applicable in all situations. 18. 17. For determining whether a transaction is a sham or not, there cannot be any absolute formula or acid test uniformly applicable in all situations. 18. In Halsbury's Laws of England [Fifth Edition - Volume 77 - Page 108] the learned author writes thus: “There are two routes by which the legal nature of the transaction can be ascertained: the external route is to show by extrinsic evidence that a written agreement is a sham intended to mask the true agreement; the internal route is to ascertain from the terms of the agreement itself whether it amounts to a transaction of the legal nature the parties ascribe to it.” 19. The extrinsic evidence includes the following: (1) the nature and possession of the property after the purchase. (2) motive, if any, for making the sham transaction. (3) the position of the parties and the relationship, if any, between the claimant and the alleged shammer. (4) custody of the title deeds after the sale and the conduct of the parties concerned in dealing with the property after the sale. 20. The plaintiff herself was examined as PW-1. She produced Exhibit A1 title deed and Ext.A2 revenue receipt showing that she has been paying tax in respect of the property. The plaintiff also produced the prior gift deed in respect of the property, which is marked as Exhibit A3. 21. The pleadings to the effect that the plaintiff is the absolute titleholder in possession of the plaint schedule property is established by the oral evidence of PW-1 corroborated by Exhibits A1 to A3. Defendant No. 1, though pleaded in the written statement that the transaction covered by Exhibit A1 is sham, has not adduced any evidence in support of the pleadings. 22. The Privy Council, in Chow Yoong Hong vs. Choong Fah Rubber Manufactory, 1962 AC 209, while considering the evidentiary burden on party who pleads the transaction as ‘sham’ held that the pleadings are of no use unless evidence is produced showing that the true nature of the transaction was different from what the parties to the sham intended. 23. The Trial Court and the First Appellate Court mainly relied on the fact that the consideration shown in Exhibit A1 is only Rs. 21,000/- to record that the transaction covered by Exhibit A1 was sham. 24. 23. The Trial Court and the First Appellate Court mainly relied on the fact that the consideration shown in Exhibit A1 is only Rs. 21,000/- to record that the transaction covered by Exhibit A1 was sham. 24. The want of sufficiency of the consideration by itself is not a ground either to hold that the sale-deed was a sham and nominal document or to hold that the sale-deed is vitiated. This view is fortified by the decision of this Court in Philomina Johny vs. Pouline Thobnar Fernandez, MANU/KE/0076/2007. 25. The learned counsel for respondent No. 1 Shri. M.P. Ashok Kumar submitted that Exhibit A2 revenue receipt is of the year 1998, after initiation of revenue recovery proceedings. The Trial Court and the First Appellate Court found that the appellant/ plaintiff has been taking yield from the property and that she is in possession of the same. The plaintiff could establish that she is in actual possession of the plaint schedule property. Defendant No. 1 failed to establish that the plaintiff had any intention to be part of the alleged sham transaction. 26. Defendant No. 1 did not appear in the witness box and state his case on oath. In Vidhyadhar vs. Manikrao, (1999) 3 SCC 573 , the Apex Court held that where a party to the suit does not appear in the witness-box and states his case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. The necessary inference is that the finding of the Trial Court and the First Appellate Court that the transaction covered by Exhibit A1 can be treated as a sham transaction is liable to be set aside. 27. The specific case of the plaintiff is that defendant No. 1 is making attempts to proceed against the plaint schedule property to realize the amount due to the Bank from the wife of defendant No. 2, alleging that the transaction covered by Exhibit A1 is ‘sham’ and it was created with the intention to defeat the creditor bank. So the plaintiff has established a cause of action for getting a prohibitory injunction against defendant No. 1 from proceeding against the plaint schedule property for realizing the amount due to the Bank from defendant No. 2 and his wife. So the plaintiff has established a cause of action for getting a prohibitory injunction against defendant No. 1 from proceeding against the plaint schedule property for realizing the amount due to the Bank from defendant No. 2 and his wife. The Courts below lost sight of the evidentiary burden on defendant No. 1 in establishing that the transaction covered by Exhibit A1 is a sham transaction. Hence the judgments impugned are liable to be set aside. 28. In the result, the Regular Second Appeal is allowed. The judgment and decree dated 22.01.2001 in O.S. No. 163/1998 passed by the Munsiff’s Court, Kuthuparamba and the judgment and decree dated 20.10.2003 in A.S. No. 62/2001 passed by the Subordinate Judge’s Court, Thalassery are set aside. The original suit is decreed. Defendant No. 1 is permanently restrained from proceeding against the plaint schedule property for realizing the debt due to the Bank from defendant No. 2 and his wife. Parties are directed to bear their respective costs. 29. Pending interlocutory applications, if any, stand closed.