Atkinson, J.:— This suit is brought by the plaintiff seeking a declaration that 5-dams share of the village of Muhammadpur Oro is his proprietary right and that defendant 1 has no right to bring this shara of the property in suit to sala in satisfaction of a debt due by defendant 2 to defendant 1. Defendant 2 was the original proprietor of this property. He contracted a debt with defendant 1, and on 5th December, 1911, defendant 2 sold the property in suit to the plaintiff who is his nephew for a consideration stated to amount to Rs. 995. This deed of transfer or sale was made by defendant 2 to the plaintiff a fortnight after defendant 1 had instituted a suit to recover the moneys due to him by defendant 2. The consideration to support the deed dated 5th December, 1911 is set out in the dead; a part of it was to be applied in satisfaction of debts due by defendant 2 to certain creditors, and part was to be paid to him in cash. It appears that at least two of the creditors specified is the deed were paid, and that the plaintiff retains still in his hands of the purchase-money the sum of Rs. 325 to discharge the claim of one Gando Singh on foot of a mortgage-bond. The learned Munsif who tried the case came to the conclusion that the deed was a fraud on the creditors of defendant 2; that no consideration in fact passed to support the deed of sale and that the transfer of the property was an attempt by defendant 2 to defeat the rights of his creditors in the realization of their debts; the property in suit being the only immovable property which defendant 2 had. The learned District Judge however came to a somewhat different conclusion.

2. The learned Judga was satisfied that the deed of sale was executed and that it was duly registered. The learned Judge thought, as I gather from his finding, that proof of the foregoing facts oast the onus upon defendant 1 of showing and proving that the deed was a deed executed by defendant 2 with the intent of defeating, delaying and hindering him as a creditor of defendant 2. As a matter of law the learned Judge was quite right in throwing the onus on defendant 1 of proving that the deed of sale was intended as a fraud. However the learned Judge in point of law held that Section 53 of the Transfer of Property Act, could not possibly apply to this case, because the intention of defendant 2 in effecting the sale to the plaintiff was at best on the evidence only an intention to defeat the rights of one particular creditor and that consequently Section 53 of the Transfer of Property Act, has no application. The Judge seems inclined to hold, though he does not do so expressly, that the intention on the part of defendant 2 and his other creditors was to effect a transfer of the property in suit in order to defeat defendant 1's rights in realizing his debt. “With great respect to the learned Judge we think he has misconstrued and misapplied the law embodied in Section 53, Clause (1) of the Transfer of Property Act. The learned Judge considers that before S. 53 can apply the intention must be shown to defeat the entire body of creditors but that merely to intend to defeat one creditor would not be within the provisions of S. 53. With great respect to the learned Judge we think that he was entirely wrong in so holding. Section 53 of the Transfer of Property Act, applies even though only one creditor may have been defrauded and hindered in realizing his debt. The law on the subject is well summarized in the case of In re Le Moroney(1). This case is of great authority representing the considered opinion of seven Judges of the Court of appeal in Ireland, and in addition this decision has been approved of by the Privy Council in the recent case reported as Musahar Sahu v. Hakim Lal(2) as containing a most clear and able exposition of the law of England and Ireland relative to the fraudulent transfers of property with intent to defeat creditors and which is made applicable to the law of India by virtue of Section 53 of the Transfer of Property Act. S. 53 in effect is only a re-enactment, in a more concise form, of the provisions of the Act of 10th Charles, Ch. 1 in Ireland, and the Statute of Elizabeth in England. The case cited is an authority not only on the construction of the English Statute of Elizabeth but also on the Irish Statute of Charles. The learned Master of the Rolls dealing with this very point says:

“Next Mr. Carton contended, in reference to the Statute of Charles, that the transaction before us was not intended to defeat creditors in the plural, but only one creditor, and Wood v. Dixie(3) was relied upon on this point. It is important in this connexion to again consider what are the words of the Statute of Charles. Its intent is stated in the recital or preamble which I have already read, and which, no doubt, speaks of creditors. It was necessary there to use the plural and not the singular number. But when we come to the operative part of the section, the words used are not in the plural only; for we have “that person or persons, his or their heirs etc.” and therefore no argument in favour of exempting the case of a single creditor can be deduced from the language of the Act, It would be the summit of absurdity to suppose that a mischief of this kind was to be struck at if two or more persons were affected, but that a single creditor was to be without protection.”

3. That was the view taken in Ireland and to the same effect is the decision reported as Ishan Shunder Das Sarkar v. Bishu Sirdar(4) and there the Hon'ble Judges Sir Francis Maclean and Banerjee, J., say:

“Reading this section as a whole then, what it means, so far as it is applicable to a case like the present, is this, that where a transfer of immovable property is made with intent to defeat or delay any creditor of the transferor it is voidable at his option.”

4. Clearly therefore the learned District Judge was wrong in ruling that S. 53 only applies when it can be established that there was an intent to defraud or defeat the general body of creditors from realizing their debts. The section applies with equal force and effect if a debtor disposes of his property with the intention of defeating one single creditor. But if the property of the debtor is transferred for consideration and bona fide to a purchaser and such transfer has the effect of putting the debtor's property” out of the reach of the creditors as an asset capable of being realized to satisfy their debts; nevertheless the transfer will be effective and the creditors will not be entitled to have the transfer set aside or declared void. I think it right to cite at some length the judgment of the Irish Court of Appeal because in the case cited the entire law on this subject is carefully considered and laid down. At p. 57 of the report the Master of the Rolls says:

“Vice-Chancellor Kindersley, one of the greatest Equity Judges who has sat in England in recent time, there said that in the construction of statute of Elizabeth it was not a ground for invalidating a bona fide sale, that it is made in order to defeat an intended execution. That is decided by Wood v. Dixie. The sale of property for good consideration, made bona fide, is therefore sufficient to defeat the execution of a judgment-creditor and I have only to consider whether the sale was bona fide, and on that point every case stands on its own merits.”

5. At p. 62, the Lord Chief Baron Palles sets out very fully what the law is and says:

“Again, the right of the creditors is, not that the debtor shall not part with any of his property, but that no such parting shall be without consideration. If “says Alderson, B. in Siebert v. Spooner(5), an equivalent is given, there is only a change in the nature of the property which the party has, but not a conveying of it away.” When therefore there is no bona fide sale, for value of the property of the debtor really intended to have effect and operation between the parties to it, the right of the creditors is not invaded. No doubt the property sold has ceased to be available for their demands, but in lieu of it, there has been substituted the consideration for the sale, which may be assumed to be a substantial equivalent. Such a sale, therefore, would not be a fraud within the Statute, merely because it was made with the express intent to defeat or delay the execution of a creditor, Were there nothing more in the case, the consideration would: remain capable of being made available, not under the intended execution but by some one or other of the modes known to the law, and, therefore, in such a case, there would not be a fraud within the Statute. This was the ground of the decisions in the only other cases cited by the appellant on this branch of the argument, viz., Wood v. Dixie and Hale v. Saloon Omnibus Co.(6). It is to be observed, however, that the decision in Wood v. Dixie goes no further than determining that an intent to defeat a particular creditor in the case of a bona fide sale for value, does not per se and as a matter of law, render the conveyance fraudulent. If, however, in such a case, the intent were not only to sell the property, but forthwith to abscond with the proceeds, so as in effect to withdraw the property from the fund available for the creditors without providing an equivalent. I should entertain no doubt that in such a case there would be an intention to defraud creditors, which, if the purchaser had notice of, would avoid the sale.”

6. That appears to me to be a very clear and accurate exposition of the law on this subject. Thus in this particular case if the learned Judge on re-consideration is satisfied that there was a bona fide sale duly intended to be acted upon between the parties, and that the property was to pass from defendant 2, without any reservation to the plaintiff and the plaintiff was to pay good and valuable consideration for the property, then even though it may have been intended to defeat the rights of defendant 1 in the realization of his debt, defendant 1 would not be entitled to a declaration that the deed of sale was voidable as a fraud on him as a creditor of defendant 2. We think that in order to arrive at a right conclusion on these points, which have not been considered, that it is necessary to remand the case to the learned Judge. It will be unnecessary for him to consider whether the dead was duly executed and duly registered; that has already been determined bub we do not think in the light of the evidence that the Judge should bring his mind to bearon the facts and to ascertain whether the deed was a deed for valuable consideration; and whether it was a deed bona fide between the parties.

7. If he so holds then, in our opinion, in point of law he should grant the plaintiff the relief he seeks. If, on the other hand, the learned Judge holds that the deed is not bona fide; that it is looking in reality; and that it was merely a colourable transaction designed and intended to defeat the rights of defendant 1 as a creditor of defendant 2, and that no consideration, in fact, passed that then he ought to dismiss the plaintiff's suit. We remand the case in entirety and having given our opinion as to what the law is we leave it to the learned Judge to decide the facts accordingly. The appeal is, therefore, allowed and the costs will abide the result of the final determination of the suit.

8. Chapman, J.:— I agree.

V.S/R.K

9. Appeal allowed.