1. These two appeals are by the plaintiff who filed a suit for declaration of his title to, and for possession of, the schedule property with mesne profits. The Munsiff decreed the suit while the learned Subordinate Judge allowed the appeals filed separately by defendant 3 and defendants 1 and 2.
2. The dispute leading to the litigation has been fully set out in the judgments of the two courts below and for the present purpose a brief summary of the salient features will be stated.
3. The plaintiff purchased the undivided 1/3 share of the properties belonging to the joint family of the 1st defendant and his two brothers for a sum of Rs. 500/- under a registered sale deed dated 8-7-1839 and he is said to have paid the consideration therefor under a receipt dated 12-7-1939. The first defendant could not, and in fact did not, put the plaintiff in possession of the property sold for the obvious reason that the share was undivided. Under a later general partition dated 25-4-1946 the first defendant got his share of the properties and subsequently sold the same in different lots to defendants 2 and 3. The plaintiff filed the. present suit for possession of the schedule properties obtained by the first defendant at the said family partition on the equitable doctrine of substitution.
4. A number of pleas were taken by the contesting defendants most of which are not relevant. The only substantial contention raised is that the sale deed in favour of the plaintiff is nominal and not supported by consideration. Defendant 1 urged that the reason of the sale_ in plaintiff's favour was that his brothers did not give him his share of the properties in spite of repeated demands and that he sold his undivided 1/3 share nominally to the plaintiff on the specific understanding that the plaintiff should file a suit and recover the share for and on his behalf. On a consideration of the documents exhibited in the case, viz., the sale deed Ex. I and the consideration receipt Ex. A and also the oral evidence adduced by the parties, the trial Jude has reached the conclusion that the transaction is genuine and supported by consideration. The learned Appellate Judge has reversed that finding of fact.
5. At the outset, Mr. Mirle Lakshminaranappa, learned Counsel for the appellant, argued that the appellate Court should not have interfered with the finding of fact arrived at by the trial Court. There is much force in this contention. The concensus of Judicial opinion inclines to the view that a Court of appeal should attach the greatest weight to the opinion of the trial judge who saw and heard the witnesses and consequently should not disturb a finding of fact unless it is satisfied that it is unsound.
6. In -- 'Yuill v. Yuill', (1945) AC 19, Lord Green M. R. observed :
'It can, of course, only be on the rarest occasions and in circumstances where the appellate Court is convinced by the plainest considerations that it would be justified in finding that the trial Judge had formed a wrong opinion.'
The question was considered at length by the House of Lords in -- 'Watt v. Thomas', (1947) AC 484 where their Lordships delivered the following opinion :
'When a question of fact has been tried by a Judge without a jury and it is not suggested that he has misdirected himself in law an appellate Court in reviewing the record of evidence should attach the greatest weight to his opinion because he saw and heard the witnesses and should not disturb his judgment unless it is plainly unsound. The appellate Court is however free to reverse his conclusions if the grounds given by him are unsatisfactory by reason of material inconsistencies or inaccuracies or if it appears unmistakably from the evidence that in reaching them he has not taken proper advantage of having seen and heard the witnesses or has failed to appreciate the weight and bearing of circumstances admitted or proved.'
This view of the law was relied on and quoted with approval by the Judicial Committee of the Privy Council in a recent appeal from the High Court of Madras vide -- 'Veeraswami v. Narayya . The Supreme Court of India followed and relied on the said decision in a very recent case in -- 'Sarju Per-shad v. Jwaleswari Pratap Narain Singh', (1951) 6 DLR (SC) 52 where their Lordships laid down :
'Where the question for consideration is one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in the case, the appellate court has got to bear in mind that it has not the advantage which the trial Court has in having the witnesses before him and of observing the manner in which they deposed in Court. This certainly does not mean that when appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge.
The rule is -- and it is nothing more than a rule of practice -- that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not inter-fore with the finding of the trial Judge on a question of fact.
It would not detract from the value to he attached to a trial Judge's finding of fact if the Judge does not expressly base his conclusion upon the impressions he gathers from the demeanour of witnesses. The duty of the appellate Court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial Court arrived at or whether there is an element of improbability arising from proved circumstances which in the opinion of the Court outweighs such finding.'
The points involved in the present case may how be considered in the light of the above observations. The most important documents in the case are Ex. I, the sale deed and Ex. A the consideration receipt executed by defen-dant-1 in favour of the plaintiff. The first defendant has not proved the nominal nature of Ex. I by any direct evidence. It need hardly be said that the burden of proving want of consideration lay heavily on defendant-1. On the other hand, the plaintiff has examined the scribe of the sale deed and one of the attestors of the consideration receipt and both of them depose that the plaintiff paid the consideration amount of Rs. 500/- on the date of the execution of the consideration receipt Ex. A and their evidence stands unassailed.
It is significant that the learned appellate Judge has omitted to notice the effect of the evidence of these two witnesses, nor has he shown any element of improbability to discredit their evidence. He, however, simply proceeds on the basis that there is sufficient circumstantial evidence in the case which goes to prove that the sale deed is nominal. Some of the circumstances advanced by the learned appellate Judge may be noticed at this stage. He states that defendant 1 was a young man who was not on good terms with his brothers and that it is in that background of what he terms as the vexed and strained relationship that the sale deed was executed, that the plaintiff could have paid the money before the Sub-Registrar but he failed to do so; that the khata of the land is not transferred nor kandayam paid; that for a long period the plaintiff did not take steps for getting possession of the property.
All these circumstances do admit of reasonable explanations. The 1st defendant was sui juris and it was not his case that he was trapped into the transaction; the payment of consideration before the Sub-Registrar is not obligatory, and there is proof that the amount has been paid under a separate consideration receipt. Similarly the non-transfer of khata and the non-payment of kandayam are equally amenable to explanation; the property sold was not a separate unit but an undivided share and since it was not separated neither could the khata be transferred nor the revenue paid separately.
The plaintiff has no doubt not taken steps for a long time; but mere delay is no bar to a legal remedy unless it amounts to a waiver or abandonment of right. The validity of the defence based on delay should be tested on equitable principles. It is admitted that defendant-1 left the place soon after the sale and was absent for a number of years having taken up Military Service and for the enforcement of claim) the presence of defendant-1 was necessary; and in this view the delay is such as not to amount to any abandonment of the right. On the other hand, defendant-1 who has conveyed his title to the plaintiff has neither sought to recover back the property by reconveyance after the partition of his share nor has he given any notice to the plaintiff before he again sought to transfer the property to defendants 2 and 3.
Whether a transaction is real or nominal depends upon the intention of the parties which should be gathered from the surrounding cir-cumstances. In a nominal transaction no title either legal or beneficial, is transferred. It is in evidence that the 1st defendant executed the sale deed in favour of the plaintiff-- a third party to file a suit for partition and possession of his share of the properties. If it is a nominal transaction the legal title will not vest with the vendee nor would the vendee be in a position to enforce the right derived therefrom. As the property was specifically trans-erred by the 1st defendant for the purpose of fighting his brothers the effect is to transfer legal title to the plaintiff. As observed in --'Rangappa Nayakar v. Rangasami Nayakar : AIR1925Mad1005 :
'If a sale deed is got up to fight certain third parties, the intention to be drawn from the transaction is irresistible that the legal title at any rate was intended to be passed by the transaction from the transferor to the transferee; otherwise the very object of the transfer fails.'
On behalf of the defendants 2 and 3 it was further urged that they are bona fide purchasers for value. Registration of a document which is compulsorily registrable is deemed to be a notice to the persons subsequently acquiring the property comprised in the instrument. These considerations therefore afford no ground for disturbing the view taken by the trial Judge.
7. The learned Subordinate Judge bases his decision completely on circumstantial evidence detailed above ignoring the direct evidence. Ordinarily, circumstantial evidence cannot be regarded as satisfactory as direct evidence. The circumstances may lead to particular inferences and the relationship to true facts may be more apparent than real. The value of circumstantial evidence has to be assessed on consideration that it must be such as not to admit of more than one solution, and that it must be inconsistent with every proposition or explanation that is not true. If these conditions are fulfilled, circumstantial evidence may approximate to truth and be preferred to direct evidence. In this case the circumstances from which inference is drawn by the learned Subordinate Judge admit of other solutions as already discussed. Viewed from any stand point the preference by the appellate Court of circumstantial evidence to that of direct evidence which is not impeached nor in which the bona fides of the witnesses undermined cannot be upheld.
8. What remains for consideration is the question whether the plaintiff is entitled to recover the schedule properties. The plaintiff purchased under Ex. I about 7 acres of land in extent and in the partition defendant 1 gets land of approximately equal extent. There is no impediment for the plaintiff to recover the specific property that is allotted to defendant-1 in the general partition. In his book on Hindu Law, Mulla says (page 310) that
'the alienee of a specific property or of the undivided interest of a coparcener in such property has on a general partition an equitable right to have that property or his alienor's share in that property, as the case may be, assigned to him if it could be done without injustice to the other coparceners. But there may be equities between the coparceners or liabilities attaching to the alienor's share which may render it inequitable or impracticable to do so. In such a case the alienee is entitled to recover from his alienor property of an equivalent value out of the properties allotted to the alienor for his share in substitution of the property alienated.'
The evidence regarding the passing of consideration, in this case is proved beyond doubt.So far as defendants 2 and 3 are concernedmere inadequacy or even want of consideration cannot prevent the passing of the title tothe prior vendee, when there is a registereddocument, whatever may be equities that existbetween the plaintiff and defendant-1. Thedefendants cannot resist the suit claim. In thecircumstances the plaintiff is entitled to recover the properties allotted to the share of defendant-1 in the partition. In the result, thejudgment and decree of the learned Subordinate Judge are set aside and those of the learned Munsif restored, parties to bear their owncosts throughout.
9. Appeal allowed.