Dawson-Miller, C.J:— This is an appeal by the plaintiff Bibi Sairah against a decision of the Offg. District Judge of Muzafferpur, dated 24th September, 1917, in which, overruling the decision of the Subordinate Judge, he dismissed the plaintiff's suit for a declaration. The plaintiff brought the present suit under the provisions of O. 21, R. 63 of the CPC claiming a declaration from the Court that she was the owner in possession of certain property specified in the plaint, and that it never belonged to the defendant 2nd party, and the defendants 1st party had no right at all to attach and sell the property in execution of a decree which they had obtained against the defendant 2nd party. Two questions, and two questions only, have been raised in this appeal, one relating to the validity of the transfer of the property in suit made by the plaintiff's husband, who is the defendant 2nd party, at a time when the defendants 1st party had obtained a decree against her husband. In order to understand how the questions for consideration arose, it is necessary to state shortly what the facts are. In February 1908 the defendants 1st party, whom it will be convenient to refer to as the decree-holders, obtained a decree against the defendant 2nd party, who is the husband, as I have already stated, of the plaintiff for a sum of, in round figures, Rs. 38,000.

2. In the year 1909 execution proceedings under that decree were instituted by the decree-holders. These were opposed by the judgment-debtor, the defendant 2nd party, who petitioned to set aside the decree and the execution was stayed pending the hearing of his petition, but, on 28th September, 1910, his objection was disallowed. It appears from the record that the decree was partly executed against the judgment-debtor, the defendant 2nd party, and, sometime in the year 1912, further execution proceedings were taken out by the decree-holders and certain properties, which are the subject of the present appeal, were attached and advertised for sale. Previously to that, on 24th November, 1910, the judgment-debtor transferred to the plaintiff under a baimokasa deed the property in suit which, at that time, belonged to him and the consideration for the transfer was stated to be the release by the transferee of her husband's obligation to her to pay deferred dower to the extent of the value of the property, which valued at Rupees 5,000. On 19th April, 1913 the plaintiff filed objections to the execution proceeding, under O. 21, R. 58 of the CPC claiming that the property which had been attached had been transferred to her and was in her possession and was not subject to attachment by the defendants 1st party in their suit against her husband. This objection was rejected by the Subordinate Judge, on the ground that the transfer was fabricated in order to defraud the creditors of the judgment debtor. Thereupon, on 10th June, 1913, rather less than two months later, the plaintiff instituted the present suit in the Munsif's Court at Muzafferpur. In that suit she valued the property, for purposes of jurisdiction, at a sum of Rs. 1,500, and not at a sum of Rs. 5,000, which was the value put upon it in the baimokasa deed under which she claimed to have acquired the property. The Munsif at Muzafferpur, at that date had jurisdiction to try suits up to the value of Rs. 2,000 and therefore if the valuation of the suit was properly given in the plaint there can he no doubt that the suit was properly instituted in the Munsif's Court. But shortly after the institution of the suit, it appears that the Munsif was transferred and there was no other Munsif at Muzafferpur who had jurisdiction to try a suit of a value of over Rs. 1,000. Accordingly, the case was transferred from the Munsif's Court to that of the Subordinate Judge, by order of the District Judge, on the ground that the Munsif's successor had no jurisdiction to try suits of a value over Rs. 1,000. That order of the District Judge was made in compliance with the provisions of Section 24 of the CPC.

3. After the case had been transferred to the Court of the Subordinate Judge, a question arose between the plaintiff and the defendants 1st party as to the real value of the property. It appears from the order passed on that occasion, dated 2nd July, 1914, by the Subordinate Judge that the dispute between the parties was really relative to a question of court-fees, the plaintiff contending that the value of the property was Rs. 1,500 and the defendants contending, apparently, that it was of the value stated in the baimokasa deed, viz. Rs. 5,000. The view that the Subordinate Judge took so far as the Court fees stamp was concerned, was that in any case, whether it was, Rs. 1,500, or Rs. 5,000, the stamp was sufficient and he made this order:

“In this case the plaint was stamped with a court-fee stamp of Rs. 10 only in value. The case reported as Phul Kumari v. Ghanshyam Misra(1) supports this view. I therefore hold that the plaint has been properly valued.”

4. It appears to me reading this order and referring to the case of Phul Kumari v. Ghanshyam Misra, that the only question which the Subordinate Judge was concerning himself with was whether the proper court-fee had been paid, and when he states, “I therefore hold that the plaint has been properly valued,” I cannot help feeling that what he intended to say was that so far as the court fee was concerned, it did not matter whether the valuation was Rs. 1,500 or Rs. 5,000. However that might be it appears that upon the same day the plaintiff herself Applied to amend the plaint by altering the value from Rs. 1,500, as originally stated to Rs. 5,000 and the plaint was amended accordingly. That was on 2nd July, 1914. After the plaint had been amended, the Subordinate Judge, on 8th July, 1914, returned it to the plaintiff for refiling it in the proper Court, he being of opinion that a suit valued at Rs. 5,000 could not have been filed in the Court of the Munsif and therefore it ought to be refiled in the Court of the Subordinate Judge so as to grant jurisdiction. The reason given by the Subordinate Judge was that the Court in which the plaint was originally filed had no jurisdiction to try the case. The defendant and party, the husband of the plaintiff, as might be expected, put in no written statement to the suit, but the decree-holders contended, by their written statement, first of all that the suit was barred by limitation and secondly that the transfer to the plaintiff by her husband of the property in suit was not a bona fide and valid transaction, but merely colourable, and that in any event the baimokasa deed was executed by the husband in order to defeat and delay his creditors within the provisions of Section 53 of the Transfer of Property Act. When the case came for trial before the Subordinate Judge, the issues framed were as follows: (1) Whether the deed of baimokasa is a bona fide and valid transaction. Whether it was executed in order to defeat and defraud creditors as stated by the defendants. (2) Is the suit barred by limitation? It will be observed that issue is really divided into two separate questions. The first part goes to the validity of the transaction. The second goes to the question whether or not it is voidable at the option of the creditors who have been defeated or delayed thereby, and the case appears to have been fought and tried and determined on those lines. The Subordinate Judge decided both the first and the second issues in favour of the plaintiff and granted her a decree. The District Judge, on appeal, differed with him on both points. He came to the conclusion that the suit was barred by limitation, that the document of transfer relied upon by the plaintiff was not a bona fide document, and that the plaintiff was never really in possession of the property. He also came to the conclusion on the evidence that, in any event, the transfer was meant to keep the defendants and the other creditors at a safe distance and to defeat and delay them. From this decision the plaintiff has appealed to this Court.

5. She contends that the learned District Judge was wrong on both points which he decided against her. It will be convenient to deal with the question of limitation first. The period in which a suit under O. 21, R. 63 of the CPC may be instituted is one year from the time when the objection in execution is decided against the plaintiff, and if the suit was properly instituted in the first instance, that is to say on the 10th June, 1913, when the plaint was filed in the Court of the Munsif at Muzaffarpur, then it was clearly within time. If however the suit was instituted before a Court which had no jurisdiction to try it, then the time of institution must be taken as 8th July, 1914, which is clearly more than a year after the date when the objection in execution under O. 21, R. 58 of the CPC was decided against the plaintiff. The question therefore is whether the learned District Judge was right in coming to the conclusion, as he did, that the suit was instituted in a Court which had no jurisdiction to try it. It is not disputed now that the value of the subject-matter of the suit was Rs. 5,000, and it is not disputed that the plaintiff cannot, by undervaluing the suit proceed in a Court which has not jurisdiction to try such suit if valued at the proper amount, and if, in fact, it should turn out, as it has now been admitted, that the value was Rs. 5,000 and not Rs. 1,500, the plaintiff cannot by valuing it at Rs. 1,500 be heard to say that the suit was properly instituted in the first instance. It is contended however that by reason of the transfer made by the District Judge when the Munsif before whom the suit was originally instituted was transferred, any defect there might be in the initial want of jurisdiction in the Court before which the suit was instituted was cured, and that the case having once got before the Subordinate Judge, it was of no moment whether the value was Rs. 1,500 or Rs. 5,000 because the Subordinate Judge bad jurisdiction to try a suit of either value. It has been decided by their Lordships of the Privy Council in the case of Ledgard v. Bull(2) that an order for the transfer of a suit from one Court to another under Section 25 of the CPC, cannot be made unless the suit has been brought in a Court having jurisdiction. That was under S. 25 of the old Code, which is now equivalent to S. 24 of the present Code. In that case, it is true the Court in which the suit was instituted had no jurisdiction whatever over the subject-matter, and we have been asked to distinguish that case from the present on the ground that, in the present instance, there is jurisdiction in the Munsif's Court over the subject-matter of the suit up to, at all events, the value of Rs. 1,500. I cannot accept this argument, because I can see no difference in principle between a case where a Court has no jurisdiction over the subject-matter and a case where a Court has no jurisdiction over subject-matter valued at over a certain amount. The subject-matter of the suit in this case is property worth Rs. 5,000. The Court of the Munsif had no jurisdiction whatever to try the case and it seems to me, once a limit is placed upon the pecuniary valuation of the property which may be the subject of a suit in a certain Court, that you cannot say that the Court has any jurisdiction in regard to property of a value over and above that limit.

6. If that is so, it would appear to follow from the decision of their Lordships in the case of Ledgard v. Bull that the District Judge had no jurisdiction to transfer the case under Section 24 of the CPC so as to confer jurisdiction upon the Munsif's successor or substitute, in this case substitute, because his successor had not jurisdiction to try a case of over Rs. 1,000. The next point which was mentioned but not really pressed was that the plaintiff should be allowed under Section 14 of the Lim. Act, to deduct the time which was occupied in prosecuting the suit instituted in the Munsif's Court from the period of limitation. The short answer to this is, that the District Judge has found, as a fact, that the plaintiff was not acting in good faith in valuing the property at Rs. 1,500 and in instituting her suit and prosecuting it in the Munsif's Court, and in support of his finding, he relied upon Section 2, Clause 7 of the Lim. Act, which provides that nothing shall be deemed to be done in good faith which is not done with due case and caution. As he was satisfied that due care and caution had not been exercised on the part of the plaintiff in this case, but, rather, that she deliberately valued her suit at Rs. 1,500 in order to bring it before the Munsif as the Subordinate Judge had already dismissed her objection under O. 21, R. 58, he thought that there were no merits to enable him to come to the conclusion that she had been acting in good faith. He found as a fact that it was not a bona fide mistake and that Section 14 of the Lim. Act had no application to the circumstances of the case. In these circumstances I have come to the conclusion that the learned District Judge was right in holding that the suit was barred by limitation, and that is sufficient to dispose of this case.

7. The other question however was argued before us at some length, and I think it is desirable to state shortly the conclusions at which I have arrived on that question. It was contended, in the first instance, that the learned District Judge, in arriving at his conclusions of fact, had not taken into consideration certain features of the evidence which had been dealt with by the Subordinate Judge. The principal feature, and practically the only feature, which it is claimed the District Judge did not deal with specifically in his judgment was the fact which was referred to in the judgment of the Subordinate Judge, that the defendant 2nd party, the judgment-debtor in this case, had paid off a decree held by another party for Rs. 15,000, and had also paid off a sum of Rs. 20,000 due under the decree of the defendants 1st party, the decree-holders, and it was in evidence that he was still in possession of property which yielded an income of Rs. 6,000 and therefore it could not be argued that he had no means to repay the defendants 1st party. It is quite true that the District Judge does not appear to refer specifically to this portion of the evidence relied upon by the Judge of the trial Court, but it cannot be supposed that the reasons which actuated the Subordinate Judge were not present to the mind of the District Judge at the time he gave his judgment, nor is it, in my opinion, necessary that he should deal in detail with the whole of the reasons which induced the Subordinate Judge to arrive at the conclusions of fact at which he did. The learned District Judge goes through the main features of the case very carefully, weighs them, and for reasons which cannot now be impugned, he comes to the conclusion that the document in question relied upon by the plaintiff was not a bona fide document and, further, that there was no evidence to satisfy him that the plaintiff ever was in possession of the property at all; in other words, that her husband remained in possession of the property and that the so-called deed of baimokasa had not been intended to be acted upon at all. He further came to the conclusion that the object of this transaction was to defeat and delay the creditors.

8. The second argument adduced on behalf of the appellant on this part of the case was, that the learned Judge had wrongly placed the onus upon the appellant of proving, not only the actual fact of transfer and consideration paid, but the further fact that the deed in question was really what it purported to be, that is to say a bona fide transaction meant to pass the property. It was contended that, once the transaction had been proved and the fact that the transfer was for good consideration, the onus lay upon the persons impugning that deed to prove that it was not a bona fide transaction, and for this contention the case of Suba Bibi…(Plaintiff); v. Balgobind Das…(Defendant).*(3) was relied upon. The facts of that case were certainly somewhat similar to the present and the onus there, of proving that the document relied upon was not a bona fide valid transaction, was placed upon the defendant in the suit. But although in ordinary cases I think it may be accepted that when once a transfer is proved and the passing of consideration shown the onus then the upon the person impugning the document to prove that it is not a valid and bona fide transaction, still, in the present case the suit is one brought under O. 21, R. 63 of the CPC, which is in effect, as pointed out in the case of Jamahar Kumari Bibi v. Askaran Boid(4), a suit to set aside an order passed under O. 21, R. 58, and therefore the onus lies upon the person relying upon the deed of transfer not merely to prove that it was properly executed-, and that consideration passed, but that the document is really what it purports to be and is not merely a colourable transaction. This question was not specifically dealt with by the learned Judges who decided the case of Suba Bibi…(Plaintiff); v. Balgobind Das…(Defendant).* and the incidents attaching to a suit under O. 21, R. 63, in so far as they affect the burden of proof, do not appear to have been considered in that judgment. But in the case I have just referred to, of Jamahar Kumari Bibi v. Askaran Boid, this very question was raised, and discussed and determined.

9. A Full Bench of the Calcutta High Court, consisting of Sir Lawrence Jenkins, C.J, Woodroffe and Mookerjee, JJ., three distinguished Judges of that Court, having considered this question as to the onus of proof in a suit, such as the present suit, brought under O. 21, R. 63, came to the conclusion that in a suit to set aside an order made adversely to the plaintiff on a claim to property preferred by her in execution proceedings, on the ground that the property belongs to her in her own right and not as a benamidar for the judgment-debtor, the onus is on her to show affirmatively that not only the ostensible but the real title also is in her. The burden cast on her is not discharged by merely pointing to the innocent appearance of the instruments under which she claims; she must show that they are as good as they look. The defendant is not to make out that they are colourable. That is a decision of three Judges of the Calcutta High Court in which this very question was discussed and determined, and I see no reason for differing from the conclusions therein arrived at. Accepting the ruling laid down there as I do, it seems to me that the learned District Judge was perfectly right in holding, as he did, that the onus lay upon the plaintiff to prove not merely the execution of the document and the passing of consideration, but also the further fact that the document was, to use the language of Sir Lawrence Jenkins, as good as it looked.”

10. The next point which was raised by the appellant was that in a suit of this nature it was not competent to the defendant to set up as a weapon of defence Section 53 of the Transfer of Property Act, and that until they had taken proper, proceedings in a Court of competent jurisdiction to set aside the transfer, they could not in a suit of this nature contend that the transfer was voidable and so defeat the plaintiff's claim and for that proposition certain decisions of the Madras High Court were relied upon. It is not necessary to refer to them all, but the principal decision which was relied upon was that of Palaniandi Chetti v. Appavu Chettiar(5). The first part of the head-note which was relied upon by the appellant is this:

“In a declaratory suit under O. 21, R. 63 of the CPC, by a vendee from the judgment-debtor, the decree-holder cannot plead in defence that the sale was in fraud of creditors and could not prevail over his decree. If the sale was prior to the attachment the decree-holder must first set aside the sale by a separate suit.”

11. But it must be pointed out that the judgment proceeds upon the as ??? that the transaction in question was a real one and that it effected and was meant to effect a real transfer of the property from the transfer or to the transferee, that is to say that it was not merely a colourable transaction. In the present case it has been found upon the issues raised that the transfer was not a bona fide transfer at all, that the plaintiff in the suit never had possession of the property and that it was not therefore a valid transaction, and therefore the decision arrived at in the case just mentioned does not appear to me to have any application to the facts of the present case.

12. The result of the findings is that the baimokasa deed in this case is not merely voidable at the option of the creditors, but it is in fact void and only colourable and was never meant to be acted upon, and the mere fact that the transaction was one which was carried out with intent to defeat, or delay or defraud creditors does not in itself bring it within the operation of Section 53 of the Transfer of Property Act, which contemplates a transfer binding between the parties but voidable only at the option of the persons specified in the section. For these reasons I have come to the conclusion that this appeal must fail upon both points raised by the appellant and must be dismissed with costs.

13. Foster, J.:— I agree.

V.S/R.K

14. Appeal dismissed.