1. The plaintiff is the appellant in this second appeal. The suit was to set aside an order dismissing a claim petition. The defendants were the decree-holders. They obtained a decree in O.S. No. 204 of 1925 on the file of the District Munsif's Court of Coimbatore and attached the properties of the judgment-debtor Pachianna Pannadi. The plaintiff then preferred his claim under a sale deed Ex. A dated 13th May 1925 from Pachianna Pannadi. This sale was after the decree but about two months before the date of the attachment. The Court of first instance decreed the plaintiff's suit but its decree was reversed in the lower appellate Court which however gave the plaintiff a charge with regard to a certain mortgage Ex. C, which it held that he had discharged. Against this decree the present second appeal is filed.
2. The trial Court found that the land purchased comprised the whole property of the judgment-debtor. The purchase price was Rs. 3,500. It is not contended that this was an under estimate and in fact the decree-holders refused to take the land from plaintiff for Rs. 4,000 and transfer the decree to plaintiff. The consideration under Ex. A was stated to be made up as follows : Rs. 2,000 to discharge a mortgage to one Subbiah Pillai (Ex. C); Rs. 1,168 to discharge a mortgage in favour of one Veera Pannadi; Rs. 100 received in cash; and the discharge of a promissory note for Rs. 200 executed by the vendor in favour of the appellant. The trial Court found that all the consideration as per terms of the sale deed was paid, that the plaintiff got delivery of the documents on the date of the sale deed and also got possession of the property, and that the decree-holder was not entitled to proceed against the land. The Subordinate Judge found that as far as the first mortgage Ex. C in favour of Subbiah Pillai was concerned, it had been discharged by the plaintiff and that the consideration was good, As regards the second mortgage Ex. C.1 he found that the debt was not genuine. The mortgagee under Ex. C-1 was the father-in-law of the judgment-debtor. With regard to the payment of Rs. 100 in cash and the promissory note debt of Rs. 20O alleged to be due to the plaintiff, he found that this was a fictitious consideration. He therefore dismissed the plaintiff s suit except that he gave him a charge to the extent of Rs. 2,000 in respect of the mortgage, Ex. C. These being the findings of fact, it is clear that the plaintiff was not a creditor of the judgment-debtor, the vendor, at the time of the sale. I shall first deal with the objection which was raised in both the lower Courts and is also raised here and which, if correct, would suffice for dismissing the appeal. The objection is that the plaintiff's suit is not maintainable because the judgment-debtor vendor was not joined as a party. For this reliance is placed on a remark in Ghasi Ram v. Mangal Chand (1905) 23 All. 41, where it was said
If an unsuccessful claimant brings a suit and he seeks to establish his claim against both the decree-holder and the judgment-debtor, the latter is of course a necessary party.
3. The trial Court found that this remark does not apply to the present case because the plaintiff did not claim any relief against the judgment-debtor. Assuming for purposes of argument that he can be held to have claimed relief against the judgment-debtor, it is to be observed that the remark in Ghasi Ram v. Mangal Chand (1905) 23 All. 41 is obiter. Besides it was a case decided under the old Code. Section 31 of the old Code which corresponds to Order 1, Rule 9 did not contain the words 'or non-joinder' which were introduced for the first time in the Code of 1908. Moreover, in a later decision of the same Court, Maryam Bibi v. Ram Das 1922 All. 401, the learned Judge dissents from the view that the judgment-debtor is a necessary party in such a suit. In that case the matter was directly in point and the learned Judge, after observing that the dictum, was obiter and was passed under the old Code says:
It is sufficient for the purposes of today to hold that Order 1, Rule 9 covers the case and distinguishes it from the dictum relied upon by the Courts below.
4. I have been shown no decided case where it is held that the judgment-debtor is a necessary party and I must therefore dismiss this objection. The next matter with which I should like to deal is the question of onus. It has been argued that the lower appellate Court has wrongly thrown the onus upon the plaintiff. This being a suit under Order 21, Rule 63, by an unsuccessful claimant it is unnecessary to discuss what the position would be if the suit were simply by the plaintiff under Section 53, T.P. Act. The recent Privy Council decision in Mohammad Ali Mohammad Khan v. Mt. Bisimilla Begum 1980 P.C. 255, is clear on the point that the onus is on the defendant claimant to establish by cogent evidence that the deeds in question were bona fide and it was held in Perayya v. Venkayamma 1924 Mad. 770, that it was not sufficient for him to rely merely upon the deed which shows his ostensible title. The Privy Council decision in V.E.A.R.M. Firm v. Maung Ba Kyin 1927 P.C. 237, is quoted in the opposite sense, but as observed in Appathurai Chettiar v. Vellayan Chettiar 1932 Mad. 302, there is nothing in the judgment about onus and the head-note is misleading in this matter. This Rangoon case was also considered in Maha Deo Misair v. Ram Prashad 1929 Pat. 579 and the same conclusion was reached that no proposition of law casting the onus upon the defendant was laid down in that case. The learned Judges make some observations on the matter of onus in Appathurai Chettiar v. Vellayan Chettiar 1932 Mad. 302, 'which may be quoted. They say:
In oases under Order 21, Rule 63, Civil P.C., the burden of proving the validity of the alienation is on the plaintiff. The defendant however cannot escape the burden at some stage or other. If the plaintiff produces his deed, and swears that it is genuine and for full consideration, and the defendant has nothing to say to the contrary, the plaintiff will succeed, and where the burden of the plaintiff is so light it is scarcely worth arguing whether it is more correct to say that the burden is originally on the defendant, or on the plaintiff. But where the defendant has something substantial to say to the contrary, the real burden must inevitably fall on the plaintiff to establish the right which he claims.
5. It has also been ruled in Ramaswami Chettiar v. Mallappa Reddiar 1920 Mad. 748, overruling a previous Full Bench deoision, that the contention that an alienation is not valid may be pub forward by way of defence in a suit and need not be made the subject of a separate suit by the decree-holder. In Flaya Perumal v. Vellaikannu 1931 Mad. 40, Sundaram Chatty, J., held that when a claim under Order 21, Rule 63 was rejected as time barred and was not investigated, the onus in the suit subsequently instituted by the claimant would fall on the defendant. That decision is alluded to in Appathurai Chettiar v. Vellayan Chettiar 1932 Mad. 302. As the claim petition in this case was dismissed after investigation, it is unnecessary to discuss its correctness. I hold therefore that the onus was on the plaintiff in the present case. It was argued that the lower appellate Court was confused with regard to the payments under Ex. C and Ex. C-1 but whatever may be said about the correctness of the conclusions of the Subordinate Judge, there was no confusion. The plaintiff withdrew on 12th May 1925 a sum of Rs. 2,000 from a deposit account some months before it was due to mature. Ex. A was executed the next day and on the date of Ex. A Rs. 1,168 are endorsed as paid towards the mortgage Ex. C-1, which the lower appellate Court has found to be a sham transaction. Ten days later Rs. 1,035-10-0 was paid towards the mortgage, Ex. C, which the lower appellate Court has found to be genuine; and a year afterwards on 18th May 1926 another sum of Rs. 1,160 was paid towards Ex. C and the mortgage was discharged.
6. The learned Subordinate Judge feels some doubt about the truth of this second payment on Ex. C, but in the end he gives the plaintiff the benefit of it. It is not permissible to argue here that the payment towards Ex. C-1 of Rs. 1,168 on the date of the sale deed was out of the sum of Rs. 2,000 withdrawn by the plaintiff. However much the dates may support such a view, the learned Subordinate Judge has in fact held that only Rs. 1,035-10-0 under Ex. C was discharged at that time from the Rs. 2,000 drawn out. Therefore there is no confusion in this matter in the finding of the lower appellate Court and I am bound by that finding of fact. The next objection is that the learned Subordinate Judge has failed to keep in mind the distinction between a sham transaction and a benami transaction. There is of course a distinction between the two things. A sham transaction is one in which no title passes or is in-tended to pass and the title still vests in the transferor. In a benami transaction title passes for certain reasons to the name of a third party who could bring a suit, give a discharge etc., on his title : vide Rangayya v. Rangaswami 1925 Mad. 1005, at pp. 1007 and 1008, a Privy Council case, and Gur Narayan v. Sheolal Singh 1918 P.C. 140 at p. 574, another Privy Council case. This distinction is not disputed on behalf of the respondents but it is argued that the learned sub. Judge clearly meant that the transaction was benami as he observes in para. 4:
Taking advantage of the circumstances that Ex. C is a real transaction the judgment-debtor Pachianna Pannadi seems to have got up Ex. A nominally in favour of the plaintiff to screen his properties from the creditors in view of his impending insolvency.
7. It is very easy to use incorrect terms in a matter of this sort and I may point out that in Appa Dhond v. Babaji Krishnaji 1922 Bom. 107, a case quoted for the appellant to show that a document cannot be partly genuine and partly benami, the learned Judge has applied the term 'unreal' in describing an alleged benami (transaction; while one of the objections to. the lower appellate Court's judgment in this case is that he says:
Even assuming that the plaintiff is in possession it does not establish the reality of the transaction in his favour.
8. I do not think there is any doubt that the Court really regarded Ex. A as a benami document for which there was genuine consideration to the extent of the discharge of the mortgage, Ex. C. It is objected further that when the Subordinate Judge says:
Pachianna Pannadi (the vendor) has now absconded and his whereabouts are not known. Therefore it cannot be said that plaintiff has really become entitled to the suit properties by reason of purchase under Ex. A,
and that while, admitting that Ex. K series, the kist receipts, show that the plaintiff did get into possession of the properties, he says that these are of very little value as they are subsequent to the claim, but has failed to notice-that the plaintiff got patta for the property on 29th May 1925 (Ex. E 8), and that in the remarks column of the patta it is stated that
the old pattadar Pachai's name has been removed according to the petition for transfer filed by him.
9. It, appears from the evidence that Pachianna Pannadi stabbed his wife and absconded and that he was also adjudicated insolvent. It must be admitted that as regards this objection the learned Subordinate Judge has certainly failed to mention with regard to possession the important evidence of the patta and of its having been obtained on the application of the vendor. But a more serious objection is that there is no definite' finding as to whether the plaintiff did make the payment of discharge under Ex. C-1. If he made this payment thinking the debt to be really due then he would still be a transferee in good faith even though the debt was a fictitious one and the mortgage got up by, the vendor with his father-in-law. The debt for which the mortgage, Ex. C(1), was executed was due under the promissory note Ex. C(7). The learned Subordinate Judge observes that Ex. C(7) was not produced at the time of the claim enquiry, and that P.W. 7, the mortgagee, was not, as found also by the trial Court, in a position to lend such an amount; and he says:
Therefore there can be no doubt that Ex. C-1 is a sham document for which no consideration passed and which was apparently got up to screen the properties of Pachiana Pannadi from his creditors.
10. He goes on then to deal with the endorsement on Ex. C-1 and he says on that matter that
P.W. 4 admits that he does not know whether the mortgage in favour of Veera Pannadi is a true or a nominal transaction though he himself has written the endorsement of discharge thereon.
11. But he does not say expressly whether the endorsement is true or not. For a proper decision of the case the matter will have to go back for a finding as to whether the plaintiff paid, the amount entered on the mortgage, Ex. C-1, as having been paid by him. The lower appellate Court will therefore submit a finding on the following issue : 'Was the discharge on Ex. C-1 genuinely made by the plaintiff'? (Onus on plaintiff). Time for finding one month. Objection 10 days. In pursuance of the directions contained in the above judgment, the Subordinate Judge of Goimbatore submitted the following:
Finding. - I am asked by the High Court to submit a finding on the following issue, placing the onus on the plain, tiff. 'Was the discharge on Ex. C.I genuinely made by the plaintiff'? * * * *The suit is to set aside an order dismissing a claim petition of plaintiff. Defendants are the attaching decree-holders. Plaintiff bases his claim upon a sale deed Ex. A, dated 13th May 1925 executed by the judgment-debtor Pachayanna Pannadi in his favour for Rs. 3,500. The consideration consists of Rs. 2,000 reserved for the discharge of a prior mortgage bond, Ex. C, dated 9th January 1924, in favour of one Subbiah Pillai for Rs. 1,700, Rs. 1,168, reserved for the discharge of another mortgage debt, Ex. C-1, dated 23rd February 1924,, in favour of Pachayanna Pannadi's father-in-law Veeran Pannadi for Rs. 1,000, Rs. 232 adjusted towards a pro note, Ex. C-2, executed in favour of plaintiff himself on 12th February 1923, and Rs. 100 received on the date agreement for sale of the Ex. C-3, dated 10th May 1925. There is an endorsement of discharge Ex. C-1, dated 13th May 1925 to the effect that rupees 1,168 being the principal and interest due under that bond was paid by plaintiff and the bond was completely discharged. This endorsement purports to bear the mark of Veera Pannadi and to be signed by his son Vyapuri and to be written by Muthukumaraswami Pillai, P.W. 4. It is this discharge which is now in question.****
12. On the whole I am not able to say that the discharge of Ex. C.1 is satisfactorily proved to be genuine. The oral evidence is quite incoherent and full of discrepancies. The amount mentioned in the endorsement is not correct according to any calculation. The provision for interest in Ex. C was more onerous than in Ex. C-1 and there is no sufficient reason why Ex. C-1 was discharged before Ex. C. In both cases the time for repayment fixed in the bonds had not expired. It is true that there is no reason to doubt the genuineness of the account, Ex. G. But the withdrawal of the money was a day prior to even, the purchase of the stamp paper for Ex. A, and long before the expiry of the one year for which period the deposit was made. The payment for Ex. C.1 is also said to have been made even before the registration of Ex. A and Ex. A appears to have been presented for registration by the vendor Pachayanna Pannadi. The production of Ex. C-1 by plaintiff is a circumstance in his favour, but I cannot attach the usual importance to it on account of the other suspicious circumstances in the case. I find that the discharge of Ex. C-1 is-not genuinely made by the plaintiff. (This second appeal coming on for final. hearing after receipt of the finding of the lower appellate Court upon the issue referred by this Court for trial, the Court delivered the following)