1. The suit in which this appeal has arisen relates to the Chemndu Estate, a small partible Zamindari in the District of Vizagapatam.
2. The 1st plaintiff is the purchaser at Court auction held in execution of a money-decree obtained by one Jogayya against the 1st defendant, 5th defendant add one Sarika Appandhora on the 14th of August 1896, He claims by virtue of this purchase to be entitled to the equity of redemption of the Zamindari and also to the right to certain moneys payable out of the Zamindari. The 2nd plaintiff Jagannatha Rao, who is the father of the 1st plaintiff, has been added as he is alleged to be beneficially interested in the purchase. The first defendant who died pending the suit and is represented by his widows (defendants Nos. 7 and 8) and sons (defendants Nos. 9 and 10), succeeded to the Zamindari of Chemudu on the death of his adoptive father Chandraraju on the 21st of January 1888. The 2nd defendant, who died pending this appeal and who is now represented by the 3rd defendant, is the Zamindar of Kuruppam. His father, who played the most important part on one side in the transactions which culminated in the present suit, died sometime in 1891. The 2nd defendent was then a miror and the Kuruppam Zamindari was taken possession of by the Court of Wands, and it continued to be in their possession until the 2nd defendant attained majority sometime in 1898. The contest with respect to the Zamindari is now entirely between the plaintiffs on the one hand and the 2nd defendant on the other. The 1st defendant, who was the last Chemudu Zamindar, had no more rights left in this estate, and he claimed only a certain annuity payable out of the income of the Zamindari. The plaintiffs seek to redeem the Zamindari from the 2nd defendant on payment of such amounts, if any, that may be found due to him under a usufructuary mortgage, dated the 29th of June 1878 (Exhibit II). alleging at the same time that that mortgage has been satisfied out of the rents and profits of the properties received by the 2nd defendant. They also claim in the alternative that, if it be found that the sale-deed executed in favour of the 2nd defendant by the 1st defendant on the 12th of March 1889 is real and binding on the plaintiffs, then the 2nd defendant be directed to pay to the plaintiffs a sum of Rs. 1,200 annually and the arrears for 12 years, amounting to Rs. 14,400, and a further sum of Rs. 42,350.10.8 with subsequent interest. In default of payment of the above sums the plaintiffs ask that the 2nd defendant's rights be foreclosed and the property delivered to them or that it be sold and the amounts due to them paid out of the sale-proceeds. The plaintiffs claim the annuity of Rs. 1,200 with arrears for 12 years and the sum of Rs. 42,350.10.8 by virtue of their purchase at the Court auction, the former as representing the rights of the 1st defendant and the latter on account of the rights which it is alleged the other, judgment-debtor Sarika Appandhora had under an instrument (Exhibit F), dated the 19th of January 1888.
3. It will thus be seen that the first and most important question for trial relates to the legal effect of the sale-deed, dated the 12th of March 1889, executed by the 1st defendant in favour of the 2nd defendant, namely, whether it was a merely nominal document not intended to be given effect to as contended by the plaintiffs. If that question be answered against the plaintiffs, the only other question for determination would be whether they are entitled to the sums of money as claimed by them.
4. It is necessary here to give a short history of the Chemudu Zamindari since 1877, which marks the commencement of the various and rather complicated transactions ending in the present suit. At that time one Narasayyamma was in possession of this estate claiming it by right of inheritance; but the Zamindari was then apparently under the management of the Court of Wards. By an instrument of March 1877 Narasay-yamma conveyed the property to Chandraraju, her nearest Guathi as she described him, reserving to herself the village of Sambara and the income of some service inams granted to palanquin bearers. Chandra-raja, who was at that time of the age of 70, not having any issue of his own, had adopted the 1st defendant. The latter was the natural son of one Jagayziraju, who was Divan of the then Zimindar of Kuruppam and who had married Kuruppam's wife's sister. The Z vmindari was in debt to the extent of Rs. 14,550 and the Court of Wards calculated that it would take at least seven years by prudent and economical management to liquidate that debt. The gross income of the Chemudu estate was between Rs. 10,000 and Rs. 11,000. The Peishcush payable was Rs. 5,000 besides the establishment and other usual charges incidental to a Zamindari. The Court of Wards, having regard to the wishes of Narasayyamma and Chandraraju, was glad to make over the Zamindari to the latter, Narasayyamma having already conveyed her rights as stated to Chandraraju. It appears that both Narasayyamma and Chandraraju were unwilling to go to the Ranee of Bobtili, a neighbouring Zamindarini, for a loan in order to pay off the debts as suggested by the Court of Wards and preferred to resort to the Zamindar of Kurnppam, the 1st defendant's relation on the mother's aide, whose Zamindari was next door to the Chemudu Zamindari.
5. We thus find that on the 22nd of September 1877 Narasayyamma and Chandraraju exeauted a mortgage-deed (Exhibit-I) for Rs. 30,000 at 7 1/2 per cent. simple interest, In default of payment of the loan within two months from the date of release of the estate from the attachment made by the Government for arrears of Peishkush, the mortgagee would be entitled to take possession of the Zamindari. Out of the collections the mortgagee was to pay Rs. 1,200 a year to Chandraraju and Rs. 300 to a lady for maintenance after meeting the Peishcush and establishment charges and credit the balance towards payment of the principal and interest on the amount advanced, until the debt is discharged and the estate restored to the possession of the mortgagor. It may be mentioned that from this mortgage the village of Sambara was excluded, having been reserved for Narasayyamma, and the villages of Kottaparvu, Konda pallivalsa and some others and some lands in Chemudu which are stated to have been granted to Sarika Bhimudu, the father of Sarika Appandhora, and some inam lands given to other persons were also excluded. So also were excluded Pattikulam which was then under Sari cultivation, the village of Tenusamanda and Kattubadi of Annamrazuvalsa, Gadabas, all of which were in the personal enjoyment of Chandraraju.
6. The Rs. 30,000 is stated to have been borrowed to pay the arrears of Peishcush due to the Government and to discharge, the debts due to other persons meaning apparently the liability to the extent of Rs. 14,550 mentioned above and also the debts which the mortgagors had been obliged to contract subsequently, owing to the insufficiency of the allowances given to them by the Court of Wards during the time the estate was under their management. A few months later, however, Chandraraju, thinking that under the terms of Exhibit I he would not be abl9 to redeem the Zamindari, executed another document which is called Khandugutta (translated as fixed rent deed) dated the 29th of June 1878 (Exhibit II) in substitution of the previous instrument. In this instrument the stipulation regarding payment of interest was omitted and the Taluq was handed over to Kuruppam for 20 years at the end of which the entire debt, if everything was carried out according to the intentions of the parties, would be satisfied and the pro. party would then be given back to Chandraraju. The sum of Rs. 30,000 advanced under the first instrument was treated as the principal and Rs. 30,000 more was added to it as interest for a period of 20 years making up altogether Rs. 60,000. The total Dowle (gross collection) was estimated at Rs. 10,327.9.0. Out of this the mortgagee was to appropriate to himself Rs. 3,000 every year and thus re-pay himself Rs. 60,000 at the end of 20 years (i.e.) by 1898. Out of the balance of the collections Rs. 5,000 a year was to be paid by the mortgagee towards Peishcush, Rs. 300 a year for the maintenance of Chandraraju's daughter in-law and Rs. 1,200 a year was to be paid to Chendraraju himself for maintenance, the remaining Rs. 827.9.0 being reserved to meet the establishment charges. The document also states that Ghandraraju wanted Kuruppam to lease back the estate to Jagayyaraju, who for this purpose must be taken to be the nominee and agent of Chandraraju himself, the lessee undertaking to carry out the arrangements mentioned in the instrument of mortgage and, if he failed to do so, Kuruppam would be at liberty to resume possession and charge the estate with interest at the rate of 12 per cent. per annum on the amounts which Jagayyaraju might have failed to pay according to the terms of the deed. Exhibit II further provided that the mortgagee was not to interfere with the gifts mentioned in the previous document. Almost simultaneously, the lease contemplated in Exhibit II was granted for a period of 10 years (see Muchilika Exhibit III).
7. About four or five years afterwards (i.e.) in the beginning of 1883 we find Chandraraju on the one hand and Jagayyaraju and the 1st defendant on the other quarrelling. The former denied the adoption of the 1st defendant and instituted a suit against Jagayyaraju for delivery of the accounts with respect to the management of the Zamindari under the lease above mentioned (see Exhibit XVI). In the result Jagayyaraju relinquished the lease and Chandraraju and Sarika Appandhora both together obtained a fresh lease of the Zamindari for a term of 10 years practically upon the same conditions as the previous lease. This was in July and August 1884 (Exhibits IV and V). During the first lease which was also for the benefit of Chandraraju himself, though in the name of Jagayyaraju, Peishcush amounting to about Rs. 6,000 had not been paid and mortgage was executed by Chandraraju and the 1st defendant on 29th August 1884 for Rs. 10,000 on account of arrears of 'Peishcush payable to Government, etc.' (Exhibit XXVIII). This is an item of consideration for the sale-deed in favour of the 2nd defendant. Here one might pause to point out that the fact of the 1st defendant joining in the mortgage with Chandraraju suggests that the two persons had become reconciled in August 1884 and in fact in December 1884, in the suit relating to the 1st defendant's adoption a compromise decree was passed by which Chandraraju recognised the adoption. It may also be usefully mentioned that in addition to the mortgage for Rs. 10,000, Chandraraju created about the same time another mortgage on the village of Sambara for Rs. 6,300 in favour of Kuruppam. Further, the 1st defendant executed a simple money bond in favour of Kuruppam for Rs. 5,000 in August 1884 (Exhibit XXIX). This money was borrowed by him in order to repay his natural father the expenses incurred by him in connection with the adoption and for his maintenance apparently since the date of the adoption, as the liability for 1st defendant's maintenance would thenceforward fall on the adoptive father Chandraraju. The bond for Rs. 5,000 is another item of consideration in the sale deed Exhibit IX.
8. Although by the end of 1884 Chandraraju and the 1st defendant had become reconciled, we find that in 1886 they fall out again as would appear from a letter written by Chandraraju to the Collector on the 1st of August 1886 (Exhibit DDD). It was then that the 1st defendant executed a mortgage in favour of Kuruppam (Exhibit XXXI) for Rs. 17,000, the third item of consideration in the sale-deed in favour of the 2nd defendant.
9. We next come to the events of 1887 and 1888. By the end of 1886 and the beginning of 1887 the 1st defendant seems not only to have become friends again with Chandraraju but joined with Appandhora and later on with Jagganatha Rao (2nd plaintiff in the suit) and one Ramachandra Rao, who was in the service of Chandraraju, in fighting Knruppam. Appandhora, whose family appears to have been dependants of the Chemudu Zamindars for some time past, managed to obtain for himself a gift of the valuable village of Sambara from Chandraraju, although the latter's financial condition was hardly such as to justify him in making any such gift. Kuruppam instituted a suit in February 1887 (Original Suit No. 3 of 1887) to eject Chandraraju and Appandhora from the Zamindari on the ground of their having broken the conditions of their lease. This was immediately followed by a counter-suit (Original Suit No. 30 of 1887) instituted by Chandraraju against Kuruppam for possession of the Zamindari free of the mortgage and the lease, the former alleging that under the usufructuary mortgages of 1877 and 1878 only Rs. 15,000, and not Rs. 30,000 were advanced to Chandraraju and that the debt had become discharged by reception of the income of the Zamindari by the mortgagee. The Zimindar of Kuruppam's suit was decided in his favour, the decree giving him possession as well as awarding a sum of Rs. 10,537 payable by Chandraraju and Appandhora on account of rent due. Now for the first time come upon the scene Jagannatha Rao and his son the 1st plaintiff, who were then directors of the Aryan Bank which is, we understand, in the course of liquidation. Chandraraju and Appandhora borrowed from that Bank a sum of Rs. 3,000 in January 1888 (Exhibit XVIII). About the same time Chandraraju made a gift of some land to Ramchandra Rao and Ramchandra Rao [sold the tame a few days afterwards to the 1st defendant (Exhibit PP) for a sum of Rs. 400, which may be taken to be the net gain to Ramchandra from the transaction Chandraraju, who had already made a gift of the village of Sambara to Appandhora in 1886, also conveyed Mavidi Mitta, a valuable property, to the same person and his brothers in consideration, as stated, for the past services of Appandhora and for moneys due to him from Chandraraju. These are, however, preludes to the main transactions of the 19th of January 1883 evidenced by Exhibits F and XI. The former is a deed of conditional sale executed by Chandraraju in favour of Appandhora end attested by the 1st defendant. It begins with mentioning the mortgage in favour of Kuruppam of September 1877 but ignoring that of June 1878, states that, if on account of the bad times of Chandraraju the Court found that the money purported to have been borrowed under that document was actually paid, the executant had no means with which to contest the claims of the Kuruppam Zimindar, that his adopted son (meaning 1st defendant) was worrying him for money to meet the expenses of his marriage (1st defendant, it may be noted here, married two wives), that the executant found it difficult to meet his expenses for food, etc., that the Taluk was under attachment for non-payment of Peishcush, that the Zamindar of Kuruppam was ready to bring the Taluk to sale under his decree and that the executant could not raise money elsewhere to meet his needs. For a consideration of Rs. 75,000--out of which Appandhora undertook to pay Rs. 4,000 to the 1st defendant and Rs. 6,000 is stated to have been paid in cash, the balance of Rs. 65,000 being the amount with which Appandhora was to discharge the debts due from the estate, the property is conveyed to Appandhora subjeot to the following stipulation; Appandhora is to redeem the property and deliver the same to Chandraraju within six months and in that event Chandraraju is to pay Appandhora the amount of consideration for the deed plus Rs. 11,500 as profits for those six months. Among the debts that are recited are: Rs.15,000 which is all that is admitted to have been received under the mortgages of 1877 and 1878; Rs. 13,000 due to Kuruppam under the decree in the eject went suit of 1887 with costs and interest and also for costs in the counter. action filed by Ghandraraju against Kuruppam; Rs. 10,000 payable to Kurnppam under the bond of the 27th of August 1884 which was executed on account of arrears of Peishcush, etc., since the date of the relinquishment of the first lease in the name of Jaggayya; Rs. 3,000 payable to the Aryan Bank; Rs. 9,500 which is started to be a loan taken through Appandhora and payable to the said Appandhora and which with profits the plaintiffs now seek to recover in case the sale to the 2nd defendant is upheld, and some other items which it is unnecessary to mention.
10. The next document (Exhibit XI) which was executed on the same day in favour of Jagannatha Rao and another person by Appandhora is a conditional sale or sub-mortgage of Appandhora's rights under Exhibit F for a consideration of Rs. 85,000, that is, Rs. 10,000 more than the consideration for Exhibit F.
11. Appandhora by this deed pledged in addition to the Chemudu Zemindari his own properties, namely, the villages of Kottuparvu and Sambara and some other properties as further security.
12. He transfers all his rights under the deed of conditional sale, stipulating that if he re-paid within one year the amount which it was contemplated would have to be spent by Jagannatha Row for redeeming the estate, Jagannatha Rao should reconvey the properties to Appandhora.
13. The Rs. 10,000 payable under Exhibit F was in fact advanced by Jagannatha Rao. Then curiously enough on the same date two powers of attorney, Exhibits KK and KKI, were executed in favour of Rama-chandra Rao, one by Chandraraju and the other by the 1st defendant, empowering him to mortgage the estate for a period not exceeding 60 years in order to liquidate the debts. The next day, the 20th of January, Appandhora obtains a document, from the 1st defendant (Exhibit GG) confirming the gift of Mavudi village to Appandhora's family. Chandraraju died the next day at the age of 82 years. All the above documents which have been recited were executed when the old man was on the verge of death. It is obvious that Appandhora, Ramchandra Rao and Jagannatha Rao had then succeeded in persuading him and also the 1st defendant that they would be able to rescue the Chemudu Zemindari from the claims of Kurnppam, bargaining for themselves considerable advantage in case they succeeded in their speculation. It is also apparent that Chandraraju and the 1st defendant must have distinctly realised that their financial condition was hopeless, and they were, therefore, eager to seize upon any device, however unpromising, for saving the situation. Appandhora, the prime mover in these matters, was acute enough to obtain for himself other benefits independently of those under Exhibit F and XI.
14. In fact not content with all this, he embarked on a holder enterprise. He plotted to pass off a child (now 5th defendant in the suit) as having been born to Chandraraju. He had persuaded the old man that his wife was pregnant and the very next day after he died it was given out that the 5th defendant was born to Chandraraju's widow. The 1st defendant evidently discovered the truth' about the paternity of the 5th defendant and that Appardhora was no friend of his. Appandhora was prosecuted in connection with the fraud--the 1st defendant taking an active part in the prosecution--and was convicted by the first Court but apparently the sentence passed on him was considered to be inadequate (see Exhibit XXII). On appeal to the High Court notice was issued calling upon him to show cause why the sentenoe passed on him should not he enhanced. Thereupon he absconded (see Exhibit QQQ). The 1st defendant, then found it advisable to turn again to the Zamindar of Kuruppam in the hope of appeasing him. He might well have thought that he had come to the end of his resources and hoped that his rich relation, who had practically acquired the Chemudu Zamindari, would extend charitable considerations towards him and his family. Jagannatha Row, the person to whom Appandhora had assigned his rights under the conditional sale, was also not inclined to pursue the game any further and withdrew from the business altogether, relif quishing his rights under Exhibit XI in favour of Appendhcra. The Rs. 10,000, which he had advanced for payment to Chandraraju and Appandhora, was re-paid with the money advanced by the Zamindar of Kuruppam under Exhibit XII. In the meantime the Zamindar of Kuruppam in execution of his decree in the suit against Chandraraju and Appandhora had obtained possession of the Zamindari (see Exhibit VII series) and the 1st defendant did not prosecute the suit instituted by Chandraraju for the Zamindari from Kuruppam and suffered it to abate. (See Exhibit B.i.) It was as a part of this arrangement that the sale-deed in favour of Kuruppam was executed on the 12th March 1889 (Exhibit IX) in pursuance of a registered agreement previously executed by the 1st defendant on the 15th July 18S8 (Exhibit XXXIV).
15. The consideration for the sale is stated to be Rs. 99,128-13 4. being about 13 years' purchase calculated on the net income of Rs. 5,948.5.1. But as the Zamindari was at the time in the possession and enjoyment of the vendee himself, under the terms of the usufructuary mortgage of June I878,and that term would not expire for another nine years from the date of sale, and the village of Sambara belonging to the Zamindar was under a mortgage to Kuruppam for Rs. 6,330 and he had to get the deed of gift in respect to Sambara and Mamidi Mutta set aside and as the Zamindar of Kuruppam agreed to pay Rs. 1,200 annually to the 1st defendant's family--allowances were made for all these and after deducting a sum of Rs. 1,000 advanced on the date of the agreement, for the purchase of stamp paper, etc., the consideration money was expressed in the figure of Rs. 76,500, which in fact is the total of all the debts owing to the Zamindar of Kuruppam by Chandraraju and the 1st defendant as stated in the document itself, It will thus be seen that the entire consideration money was wanted to discharge prior debts to the Zamindar of Kuruppam himself. They only substantial advantage retained by the 1st defendant was an annuity of Rs. 1,200 a year for himself and his family.
16. So far as the 1st defendant is concerned, he has abided by theft sale and by his written statement he has supported the transaction and so also have defendants Nos. 7 to 10, his widows and children.
17. Nothing further was heard of Appandhora or Jagannatha Row or Rimaahandra Row who in 1888 just before Chandraraju's death had combined to fight the Zamindar of Kuruppam. The combination in fact entirely collapsed. On Appandhora being oonvioted, Jagannatha Row relinquished his claims under Exhibits F and XI, having received back Rs. 10,000, which he had advanced, from Kuruppam, and for the time being at least be retired from the field. The Zimindar of Kiruppam, the father of the 2nd defendant, died in 1881, about two years after the sale and the Kuruppam Zamindari along with Chemudu was taken possession of by the Court of Wards. It appears that somehow or other Jogiah's claim of about Rs. 500 advanced on promissory notes in 1879 was overlooked. He instituted a suit (Original Suit No. 203 of 1889) and obtained a decree in 1889 (Exhibit K) for the amount due on his promissory notes, namely, for Rs. 611. He executed that decree and brought to sale the 1st defendants equity of redemption in the Zamindari and the rights of Appandhora under Exhibit F. It is on the strength of the purchase of these rights that the plaintiffs, as already stated, have instituted the presen suit. The sale in execution took place in 1896 while the Kuruppam estate was in charge of the Court of Wards, the 2nd defendant being at the time a minor.
18. The sale of 12th March 1889 in favour of the 2nd defendant is impeached by the plaintiffs on the ground that it was a nominal and sham transaction and was never intended to be acted upon. The Subordinate Judge has found in favour of the plaintiffs' case mainly on the ground that it was not proved that Chandraraju or the 1st defendant owed debts to the extent of Rs. 75,500 as recited in the document and that the subsequent conduct of the 2nd defendant's father and afterwards of the Court of Wards showed, that the sale deed was not intended to be acted upon. He finds at the same time that there was valid and true consideration for the sale deed to the extent of Rs. 16,000 or 17,000, which with interest would amount to Rs. 35,000 in 1898 at the time the term of the usufructuary mortgage expired. He has, however, given a decree to the plaintiff for possession without imposing any condition as to the payment of this amount and without directing any account to be taken as to what moneys, if any, were due to the 2nd defendant under the mortgages of 1877 and 1878.
19. The questions at issue depend for their determination mainly on documentary evidence. We must admit that the judgment of the Subordinate Judge would have carried greater weight with us than we are disposed to attach to it, if at the very outset he had not allowed his mind to be strongly biassed against the 2nd defendant's father on the strength of some general remarks contained in certain reports of the Collector and the manager of the Court of Wards in 1891 and 1893 while the Kuruppam estate was in their charge. One could not help noticing that in dealing with the more important issues the Subordinate Judge's conclusions were influenced by the estimate which he formed of the general character of the Zamindar of Kuruppam and of the nature of his dealings generally based almost entirely on the reports made after the man's death. They contain rather general and vague criticisms which certain Revenue Officers thought fit to make regarding tome of the transactions of the Zamindar and the way in which his books of account were kept. None of those officers have been examined in this case and their observations, even if technically relevant, could be of no material assistance in deciding upon the definite issues involved in the suit.
20. In dealing with the issue as to whether the sale to the Kuruppam Zamindar was merely nominal and sham one is naturally faced with the question what was the motive of the then Zamindar of Kuruppam, the vendee, and of the 1st defendant, the vendor, in bringing about such a document? The observations of the Subordinate Judge on the various transactions which led to the sale-deed would rather suggest that in his opinion the Zamindar of Kuruppam, who is described by him as a greedy, grasping and unscrupulous man, was bent upon depriving Chandraraju and the 1st defendant of the Chemudu Zamindari by unfair means and without paying full consideration for it. If that be the true view of the fasts, then the sale could not be said to have been intended to be merely nominal, at any rate so far as the Zamindar of Kuruppam was concerned. There is no evidence that the 1st defendant ever seriously alleged that the Zamindar of Kuruppam got him to execute the deed on representation that it would not be given effect to and that it was wanted for some other object. The plaintiffs did not attempt to make out either that the transaction was entered into with a view to protect the estate from the 1st defendant's creditors, and this for very good reasons. For it was the Zamindar of Kuruppam himself to whom the great bulk of the debts were due. Taking all the other debts together so far as there is any evidence of them, they would not have amounted to more than Rs. 5,000. It could not, therefore, be seriously contended, and was not in fact contended, that since 1877 or 1878 Chandraraju and the 1st defendant on the one hand and the Zamindar of Kuruppam on the other combined in creating a series of fictitious documents with a view to defeat the creditors of these comparatively petty debts. In fact some of these were borrowed since the date of the usufructuary mortgages in favour of Kuruppam. Mr. Rangachariar, the learned Vakil for the plaintiffs-respondents, realising that none of these theories were tenable, has throughout argued the case on the basis of an altogether new theory no trace of which is to be found in the plaint, the issues, the evidence or the judgment of the Subordinate Judge, namely, that the Zamindar of Kuruppam in entering into the transactions was actuated solely by a desire to protect and advance the interests of 1st defendant, who was his 1st wife's sister's son and who it is alleged enjoyed his affection. With this object in view, Mr. Rangachari has argued, the Zamindar of Kuruppam, who was afraid lest Chandraraju should recklessly squander away the Zamindari, induced him by taking advantage of his rather average intelligence and trustful nature to execute fictitious mortgages and bonds so as to fetter Chandraraju's powers of alienation. And in pursuance of the same design he got the 1st defendant himself, it is said, to execute bonds and mortgages and finally the deed of sale, all unreal documents and without consideration, for the 1st defendant's own benefit. The very nature of the transactions covering a long period of years, as we have narrated them, would show prima facie that Mr. Rangaohari's theory is wholly artificial and far fetched and propounded for the first time before us, because no other theory seemed to fit in with the facts. In the plaint itself--paragraph 3, Clause (h)--it is stated that the 2nd defendant's father and 1st defendant conspired together and brought about the nominal sale deed in order to defeat the claims of the 5th defendant the supposititious child of Chandraraju. But the 5th defendant had been found not to be the issue of Chandraraju and Appandhora was charged with the fraud in this connection before the date of the agreement for sale. That theory is, therefore, also clearly unfounded, nor would it account for the execution of the numerous mortgages and bonds before the date of sale. Then it seems to us that the conclusive answer to these suggestions is furnished by the fact that the 1st defendant never alleged that the sale-deed or the numerous mortgages which formed its consideration were executed by him in order to protect his interests either against the reckless conduct of his adoptive father or against the claims of creditors or of the 5th defendant. Farther if the 1st defendant was at all conscious that he had a subsisting right in spite of the execution of Exhibit IX, he would not have allowed the Zamindari to be sold in execution of a decree for a few hundred rupees.
21. The truth and validity of the several items of debt recited in Exhibit IX has been minutely canvassed by the Subordinate Judge and in the appeal by the learned Pleader for the appellants. In determining whether the transaction was nominal such an enquiry cannot be said to be altogether irrelevant. If it was shown that either all or the bulk of these registered mortgages and bonds contained false recitals of moneys advanced to Chandraraju or the 1st defendant, the Court would naturally enquire further whether such fictitious documents were not introduced to lend colour to a transaction which was never intended to be acted upon. On the other hand if it be found that there was substantial consideration for the sale, the fact that all the items under consideration are not satisfactorily proved would in no way lead to the inference that the deed was nominal. It is not like the case of an alienee from a limited owner, such as a Hindu widow or manager of a joint family, who has got to prove that debts to discharge which the alienation was made really existed and had been incurred for proper purposes. To such cases the observations of the Privy Council in Banga Chandra Dhur Biswas (Nanda Lal) v. Jagat Kishore Acharjya Chowdhuri 36 Ind. Cas. 420 : (1916) 2 M.W.N. 336 : 4 L.W. 458 : 18 Bom. L.R. 888 : 14 A.L.J. 1103 : 24. C.L.J. 487 : 1 P.L.W. 1 : 21 C.W.N. 225 : 10 Bur. L.T. 117 : 43 I.A. 249 as to the value to be attached to the recitals in the deed in the particular circumstances of each case were intended to apply. The burden in the present case rests at the inception undoubtedly on the plaintiff, to make out that the sale-deed executed by the 1st defendant, whose validity and operative-ness is admitted by him, was executed for some ulterior purposes and without any intention to give effect to it. In Ranga Ayyar v. Srinivasa Ayyangar 21 M.P 56 : 7 Ind. Dec. (N.S.) 396 Collins, C.J., and Shephard, J., laid down that when a conveyance had been duly executed and registered by a competent person, it required strong and clear evidence to justify the Court in holding that the parties did not intend that any legal effect should be given to it. It needs to be proved that both parties had it in their minds that the deed should be a mere sham and in order to establish this proof, it needs to be shown for what purpose other than the ostensible one the deed was executed. We entirely accept that proposition. The plaintiffs in support of their case having alleged. that the items of consideration recited in the deed are false and fictitious, it is for them to establish this allegation. Their Lordships of the Judicial Committee say in Banga Chandra Dhur Biswas (Nanda Lal) v. Jagat Kishore Acharjya Chowdhuri 36 Ind. Cas. 420 : 31 M.L.J. 563 : (1916) 2 M.W.N. 336 : 4 L.W. 458 : 18 Bom. L.R. 888 : 14 A.L.J. 1103 : 24. C.L.J. 487 : 1 P.L.W. 1 : 21 C.W.N. 225 : 10 Bur. L.T. 117 : 43 I.A. 249 already mentioned:
'Under ordinary circumstances and apart from Statute, recitals in deeds can only be evidence as between the parties to the conveyance and those who claim under them. But in such a case as the present their Lordships do not think that these recitals can be disregarded, nor, on the other hand, can any fixed and inflexible rule be laid down as to the proper weight which they are entitled to receive. If the deeds were challenged at the time or near the date of their execution, so that independent evidence would be availably the recitals would deserve but slight consideration, and certainly should not be accepted as proof of tin facts. But as time goes by, and all the original parties to the transaction and all those who could have given evidence on the relevant points have grown old or passed away, a recital consistent with the probability and circumstances of the case assumes greater importance, and cannot lightly be set aside.' The last passage applies exactly to the facts of the present case. The plaintiffs chose to wait for nearly 12 years since their purchase before instituting this suit. Chandraraju, in some of the documents which he executed in favour of Appandhora and others, had no doubt stated that only half the consideration mentioned in the usufructuary mortgage of 1878 was actually received; but the suit in which this matter was put in issue was never pursued by the 1st defendant. Neither Chandraraju nor the 1st defendant ever explicitly asserted that no consideration passed for the various mortgages and bonds set out in Exhibit IX, far from taking any action to challenge those documents. Chandraraju died in 1888. Second defendant's father died in 1891. Jaggaraju, the natural father of the 1st defendant, died in 1889 and the 1st defendant himself died before the trial came on. Of the persons, that were in any way cognizant of the transactions of 1888 and 1889, Jagannatha Rao, the 2nd plaintiff, alone is alive and he has not gone into the witness-box.
22. Then what are the broad features? If we look at the circumstances of the Chemudu Zamindari when it came into the hands of Chandraraju in 1877, the probabilities and the undoubted events of subsequent years seem to accord with the case of the appellants that the Zamindari was sold in order to discharge the debts and liabilities which had gone on accumulating with time and which Chandraraju was never in a position to discharge except by the sale of the Zamindari.
23. To begin with, it is really too late to contend that the usufructuary mortgages of 1877 and 1878 were not fully supported by consideration. It is apparent from the recital in the document of 1877 that the debts for the discharge of which the mortgage was executed were not merely Rs. 14,000 and odd mentioned in the letter of the Collector to the Board of Revenue, Exhibit GGG, but also debts which had been incurred by Narasayammal and Chandraraju by reason of insufficiency of the allowances paid to them by the Court of Wards. Chandraraju, when a few months later he executed Exhibit II, acknowledged that Rs. 30,000 had been borrowed from Kuruppam and in the Muchilika Exhibit V executed in 1881 by Chandraraju and Appandhora, while the usufructuary mortgage is treated as a binding document, it is not suggested that only Rs. 15,000 had been borrowed under it. If Chandraraju was not a shrewd man of business, Appandhora could not be said to have lacked intelligence or experience of the world. With such a man by his side it was not likely that Chandraraju could have been induced to execute two mortgages one after another for Rs. 30,000, if in fact only Rs. 15,000 had been received. If the plaintiffs' case were true on this point, then by 1884 Rs. 15,000 would have been discharged except to the extent of Rs. 1,000 and in that case it is not likely that Chandraraju and Appandhora would have taken the lease mentioned above. So far as this point is concerned, the matter must indeed be taken to have been set at rest when Mr. Narayanamurthi, the learned Vakil for the present respondents, admitted, on a previous occasion in the course of the hearing of an appeal from the judgment of the Sub-Judge who first decided this suit, in the High Court that he was not prepared to contend that full consideration had not been received for the usufructuary mortgage of 1879 (see page 110 of the pleadings).
24. The position, therefore, even in 1878 was that for 20 years afterwards, Chandraraju and his family, including the 1st defendant, would have only an annuity of Rs. 100 a month to live on. It would be no violent assumption to suppose that persons occupying the position of a Zamindar would find it hard, if not impossible, to manage things on such a small amount. It is for that reason that Chandraraju took the 1st lease in the name of Jaggaraju, expecting that thereby he would be able to make something more than Rs. 100 and at the same time enjoy the privilege of being in direst possession of the Zamindari. But the gross collections even when made in full did not amount to more than Rs. 11,000, while the Peishcush of Rs. 5,000, whatever the state of collections, had to be paid by the Zamindar regularly every year to the Government. It is not at all to be wondered at that without any resources in reserve Chandraraju found himself unable to meet the dues, with the result that he got into debt again. No doubt the Peishcush that had remained unpaid was only Rs. 6,000; but it seems to us much more likely than not that Chandraraju was driven during this period to borrow sums of money for meeting other expenses as well, The details are set out in Exhibit IV which is the deed of surrender executed by Jaggarajn. Exhibit XXVIII, which is a mortgage for Rs. 10,000, recites that the amount was borrowed for Peishcush payable to Government, etc.' We think what it means is that the amounts were borrowed for paying Peishcush and for other purposes. This is corroborated by the letter written in 1885 by Chandraraju to Kumppam (Exhibit XXX). Another item of consideration is a simple money bond Exhibit XXIX executed by the 1st defendant for Rs. 5,000. As regards this, we cannot say that it is so improbable that Jaggaraju, the natural father of the 1st defendant, would have insisted on being re-paid the expenses incurred on account of the adoption of the 1st defendant and also for his maintenance after the adoption and during the time he and the adoptive father were not on good terms, that on that ground alone we should hold that the recital is fictitious. The 1st defendant, though at certain stages in the history of these dealings he was inclined to fight the Zamindar of Kuruppam, never alleged that this amount had not been borrowed by him. It is clear from the pleadings (Exhibit XVI) in the suit instituted by Cbandtaraju against the natural father of the 1st defendant (Original Suit No. 36 of 1883) that since at least l883 Chandraraju had off and on repudiated, and evidently falsely, the adoption of the 1st defendant. In these circumstances Jaggaraju might well have required to be paid for the expenses incurred on account of the 1st defendant for which the Chemudu Zamindari was not really liable.
24. The next item of consideration is a bond for Rs. 17,000, executed by the 1st defendant in favour of Kuruppam in 1886. This document (Exhibit XXXI) is written by the 1st defendant's Natural father himself and there is a regular receipt forthcoming for the payment. The money was borrowed in order to enable the 1st defendant to file suits, against his adoptive father, to discharge certain debts borrowed for maintenance and the expenses of the marriage he was contemplating about that time. We must say that we do not see anything inherently improbable in this transaction. Zamindars, even though in involved circumstances, like to spend money lavishly on marriages while with some of them, the more involved they are, the more reckless they become; and the 1st defendant had no means of maintaining himself unless he borrowed moneys from time to time.
25. The next two items of consideration are the debts for Rs. 2,000 and odd each borrowed under Exhibits XXXII and XXXIII by the 1st defendant in April and May 1888. This was after the 1st defendant discovered that Appandhora was trying to foist a spurious child on the family as the son of Chandraraju and that he was unable to render him any effective assistance in liquidating his debts or in finding him money for his expenses. There was necessity for borrowing money for litigation which he contemplated in connection with the documents which Appandhora had obtained from Chandraraju two days before the latter's death and having regard to his general impecunious condition there is no reason for suspecting the genuineness of these mortgages. They are evidenced by registered documents. The 1st defendant never repudiated them and they are corroborated by receipts executed by him. Similarly the sum of Rs. 9,118.13.4, which was paid by Kumppam during the term of the lease to Chandraraju and Appandhora, is supported by recipts, Exhibits XX series. It may be noted here that Kuruppam did not obtain possession of this Zamindari under the decree in Original Suit No. 3 of 1887 until some time in February or March 1888 and he had to get rid of attachment made of the Zamindari by the Government for arrears of Peishcush.
26. The next item of consideration is a sum of Rs. 6,000 which is recited as payable as rent of Jammadavalasa, one of the villages belonging to the Chemudu Zamindari. This village is included in the usufructuary mortgage of 1878, but it was afterwards dedicated in 1884 to a deity situated in Kuruppam which is only a few miles from Chemudu, the Zamindar of Kuruppam being made trustee of the dedicated village. The dedication was consented to by the Zamindar of Kuruppam, though it was of lands included in the lease taken by Chandraraju. The rent of this village would amount to Rs. 8,000 in the 10 years which still remained of the term of the usufructuary mortgage. From this amount Rs. 2,000 was deducted on account of counter-interest. But whether the Chemudu Zamindar was properly made liable for Rs. 6,000 may not be quite clear.
27. The next item is a sum of Rs. 1,008 and odd alleged to have been received by the Zamindar for household expenses subsequent to July 1888, the date of the agreement for sale. We do not see why the payment of this amount during the course of nearly eight or nine months should be considered improbable.
28. The ninth item is a sum of Rs. 1,797 and odd which was reserved for payment of the decree debt of Kadiyala Venkataramayya. But it was not paid, with the result that the Zamindar of Kuruppam had to incur heavy loss on this account.
29. The last item is a sum of Rs. 10,750 due under Exhibit XII, a mortgage-bond executed by the 1st defendant. This sum was borrowed in order to pay Jagan natha Rao in connection with Exhibits F and XI already mentioned and it is not now disputed.
30. Upon the documentary evidence, therefore, in the light of the circumstances which we have narrated at some length there seems to be strong prima facie proof that the consideration or the great bulk of it as recited in the sale deed was real and bona fide.
31. The main argument of Mr. Rangachari was that it was extremely improbable that so much money could have been borrowed by Chandraraju and the 1st defendant. But as has been pointed out, they had only an income of Rs. 100 a month at the most for themselves and their families and they were often quarrelling with each other and had also expenses of litigation to meet. That they were extremely reckless and extravagant will be apparent from the fact that they made gifts of certain valuable villages while they were themselves in such straitened circumstances The learned Vakil for the respondent tried to make a great deal of the fact that the chitta or account book relating to the monetary transactions of the Zanindar of Kuruppam for the years 1883 to 1888 was not produced. The chittas from 1889 have been produced. It is argued that the earlier chitta was wilfully suppressed but we do not think that this has been made out. The evidence of defence witnesses Nos. 6 and 12 shows that the book had been filed in Court by Parnayyapanthulu who was the Divan of the Kuruppam Zamindar in certain proceedings in 1891, but was never returned by Pnrnayya to the office of the Zamindar. There is nothing to rebut this evidence, and we see no particular reason why it should not be believed. The chittu that have been produoed largely bear out the ease of the 2nd defendant. The Zamindar of Kuruppam, it appears, was in the habit of lending moneys on a rather large scale. The collections of the Zamindari used to be entered in what are called mahal chittas and the savings were dealt with by the Zamindar himself. The moneys lent by him were entered in what is called Huzur chitta. The books that have been produced in evidence (Exhibits 40 and 40a) appear to have been kept in the due course of business. The moneys lent and re paid by the debtors were entered regularly. At the end of each book a summary was made of the account as it stood of each individual. This summary of the ledger of each individual was then carried over in the next book, so that each bock is self-contained and shows the state of accounts of each individual with whom the Zamindar had transactions. On paged 172, 176, 329 and 387 we find most of the transitions which formed the consideration for Exhibit IX are entered. To that extent, therefore, the accounts of Kuruppam Zamindar support the recitals in the various registered deeds, receipts and other documents relating to the different transactions mentioned in the deed of sale. The books were from time to time inspected and signed by the Zamindar and his officials and their genuineness has not been seriously impeached.
32. The next argument in support of the plaintiffs' case is based on the conduct of the Zamindar of Kuruppam, which it is contended shows that he could not have intended the sale deed to be an effective and real transaction. It is first of all stated that the agreement for sale, Exhibit XXXIV, emitted to mention certain debts owing by the Zamindar of Chemudu. The 1st item is a debt of Rs. 3,000 borrowed from the Aryan Bank of which the plaintiffs were Directors. This amount was borrowed by Chandraraju and Appandhora for filing an appeal against the decree against them in the suit instituted by the Zamindar of Kuruppam for possessions of the property on their failure to carry out the terms of the lease granted to them. The appeal was in fact filed by Appandhora alone and the suit was remanded by the High Court on the ground that Appandhora had not been given sufficient opportunity to adduce evidence. But Appandhora did not afterwards appear and the original decree was confirmed and Appandhora was ordered to pay the costs of the remand. The 1st defendant in those circumstances might well have thought that as between himself and Appandhora the latter was liable for this debt and thus omitted to mention it in the agreement for sale. The fact that the Court of Wards afterwards found it prudent to pay the balance of the decree amount obtained by the Aryan Bank would not show any mala fides on the part of the Zamindar of Knruppam in the non-mention of this debt in the agreement for sale.
33. There was also a debt for Rs. 1,700 due to one Kadiyala Venkataramayya which ultimately led to the sale of Bandaluppi Mitta, a substantial portion of the Chemudu Zamindari. It would appear that out of Rs. 10,000 paid under Exhibits F and XI Rs. 1,500 was kept by Appandhora for payment to Kadiyala Venkataramayya in satisfaction of his decree. See Exhibit XXXIX. This is acknowledged in a letter written by Appandhora on the 20th January 1888 to the 1st defendant. That being so, there was no necessity to mention this debt in the agreement for sale. Apparently Appandhora never paid this amount to Kadiyala Yenkataramayya, who afterwards executed his decree by attaching and bringing to sale the Bandaluppi Mitta. The execution petition stated that the property was to be sold subject to the encumbrance of Rs. 60,000 under the usufructuary mortgage of 1878. But no mention was made of the other encumbrances mentioned in the deed of sale to the Zemindar of Kuruppam. But the latter pointed out in his petition that there were other encumbrances of his on the property and asked for a stay of sale. But somehow or other the property was put up for sale subject only to the usufructuary mortgage of 1878. The evidence shows, and the Subordinate Judge also finds, that Yenkataramayya and the Zamindar of Kuruppam must have come to some understanding at the time when the property was put up for sale, for the day before that, the Zamindar had appointed this man an Amin of his estate. But apparently Yenkataramayya proved false to him and the property was knocked down for a sum of Rs. 850, the proper value of the property being at least Rs. 10,000.
34. Then Mr. Rangaohari also relied on the fact that in the application (Exhibit J2) made by the 1st defendant to set aside the sale on the ground of irregularity, he did not refer either to the agreement for sale or the deed of sale or the mortgages other than the usufructuary mortgage of 1878. He, as applicant under Section 311 (old Civil Procedure Code), had to prove substantial loss and for that reason he might have omitted to make any reference to the other encumbrances, the agreement and the deed' of sale. For it is likely that he might have apprehended that if he mentioned them, the Court would have held that the loss to 1st defendant was practically nil. The executing Court confirmed the sale (Exhibit LIV), although it held that nothing passed to the purchaser Yenkataramayya as at the date of attachment of the property the 1st defendant, the judgment debtor, had no interest in it as the property was the self acquired property of Chandraraju who was then alive. Yenkataramayya filed a suit (Exhibit LV) to establish that he had acquired the mitta by sale and not merely a shadow as the executing Court had held. This was in 1890, but while the suit was pending the Zamindar of Kuruppam died and the Court of Wards thought it advisable to come to an understanding with Vepkataramayya and to buy the property from him paying him Rs. 10,000. It is argued that the Court of Wards would not have acted in. this way if they thought that the sale-deed of March 1889 which included this property was an operative transaction. We do not, however, think that the facts lead to such an inference. On the other hand the correct inference to be drawn is that the Court of Wards thought it safer to pay Rs. 10,000 in order to secure this important property as part of the Chemudu Zamindari, This they would not have done if they were of opinion that the Zamindar of Kuruppam acquired no rights in the rest of the Zamindari under the deed of sale.
35. Similar arguments were advanced with reference to the villages of Sambara, Kottiparavu Palakivikalsa, Annamraju Valsa and Mamidi Mutta. Sambara is a large village which, it may be remembered, was reserved by Narasayamma for herself and exaluded from Exhibit XV. It was also excluded from Exhibits I and If, In 1884 Narasayamma died and Sambara was mortgaged to Kuruppam for Rs. 6,300 by Chandraraju. Then it appears from Exhibit G that he granted a permanent lease of the village to Appandhora for a rent of Rs. 756 on the same' day as the mortgage in favour of Kuruppam. In 1886 Chandraraju made a gift of the village to Appandhora and thereafter we find that Appandhora dealt with it as his own. The property passed through several successive alienations and at last got into the hands of the Raja of Vizianagaram. In the deed of sale Sambara was included and it was left to Kuruppam to recover it by suit if he could. The Collector, who took charge of that estate on the Zemindar's death, apparently found that there was no chance of doing this and was satisfied to receive the mortgage money due on it from Vizianagaram (see Exhibits P, Q, R and X). It seems to us that the Court of Wards managing the estate of Kuruppam anted wisely and prudently in this matter, for they would have found it extremely difficult to establish his title to the property especially as it had passed through several alienations and as in possession of a bona fide purchaser for value.
36. Kottiparavu was not expressly mentioned in the deed of sale which, however, comprised the entire Zemindari. The Zamindar of Kuruppam apparently could not have hoped to establish his title to this property, seeing that it had been given away to the Appandhora family long before his deed of sale even before the usufructuary mortgage of 1877.
37. Annamraju Valsa and Patipolan are service inams granted to persons on condition of their rendering palanquin bearers' servioe to the Zamindar of Chemudu. They are small pieces of land, the Kattubadi of the former being Rs. 268 and of the latter about Rs. 30 a year. It is somewhat doubtful whether these inams were intended to be included in the deed of sale. Annamraju Valsa was expressly excluded from Exhibit I. The fact that the 1st defendant was allowed to remain in possession of these inams and that the 6th defendant continued to enjoy the palanquin bearers' service without any protest from the Zamindar of Kuruppam is to our mind quite explicable in the circumstances of the case. With regard to Palaki Valsa the Kattubadi was paid to Kuruppam, though the palanquin bearers were allowed to render service to the 6th defendant. Having regard to the former status of the 1st defendant and his family, one can well understand that the Zamindar of Kuruppam would not be hasty in depriving them of such small amenities.
38. Similar considerations might have induced him to allow the 1st defendant's enjoyment of the small home farm land of Patipolam in the residential village of Chemudu and also some garden lands.
39. As regards Mamidi Mitta, that is property of a very substantial value. It was in the possession and enjoyment of one Radhai Amma, who inherited it from her husband. The 1st defendant's adoptive father, thinking that he had a vested reversionary interest in the property, made a gift of the Mitta to Appandhora. It was not included either in the usufructuary mortgage of 1877 or 1878, though it has been included in the deed of sale, Kuruppam taking his chance of recovering the Mitta if he could. The 1st defendant had confirmed the gift before the execution of the sale-deed to Kuruppam. It also appears that another person claimed the property as the rightful reversionary heir disputing the title of the Chemudu Zamindar. He instituted a suit to set aside the alienations made by Radhayammal. Upon those facts the Kuruppam Zamindar acted rightly in not pressing his claims to this property any further.
40. Then it is alleged that the Court of Wards entirely ignored Exhibit IX, the sale deed, treating it as a nominal document. Bat this is not borne out by the facts. No doubt in certain suits against the tenants the Court of Wards relied upon the usufruotuary mortgage of 1888, and not on the deed of sale. Bat then they were in possession at the time by virtue of the usufructuary mortgage. On the other hand, they must have treated the sale-deed as valid: for we find the Collector registering the Zamindari in the name of the 2nd defendant. So also the chittas, Exhibits 44 (c) and 44 (d) (pages 641 and 645) describe the Chemudu Zamindari as belonging to the Kuruppam estate, which they would not have done if the Court of Wards regarded the sale to Kuruppamas nominal. Nor would they have paid Rs. 10,000 to Kadiyala Venkataramayya for Bandaluppi Mitta unless they regarded Kuruppam as the owner of the rest of the Zamindari.
41. Much stress was laid by the respondents on the withdrawal from a suit for contribution which the Court of Wards had instituted against the Rajah of Vizianagaram with regard to the sale of Sambara and Kottiparavn, The Court of Wards had obtained a decree for Rs. 900 as contribution in the 1st Court, but an appeal was preferred and the High Court remanded the case, as it was of opinion that the issue relating the purchase by Kuruppam which had not been adjudged upon by the lower Court ought to have been decided before the Court of Wards' claim could be sustained. The Court of Wards, however, did not think it advisable to have the larger issue decided in that suit and allowed the suit to be dismissed. One can quite understand the reluctance of the Court of Wards to take the trouble or to in our the expenditure of the trial of an issue involving the title to the entire Chemudu Zamindari in a suit in which a small gum of Rs. 900 only was involved.
42. Mr. Rangaohariar farther argued that we should conclude from the admissions of the Zamindar of Kuruppam made in his statements (Exhibits D and L 50) when he was examined as a witness in Original Suit No. 50 of 1890 and from the statement of the 1st defendant (Exhibit D-1) when he was examined as a witness in Original Suit No. 2 of 1893 and from the recitals in the mortgage-deeds (Exhibits NN and SS) executed by 1st defendant that Exhibits II and IX were on the showing of the parties principally concerned nominal documents not intended to have any effect.
43. In paragraphs 19 and 20 of his judgment the Subordinate Judge has adopted this view and relies upon these so called admissions.
44. Upon this point we have only to observe that as regards Exhibits D and L 50, the witness himself explained in the course of the same deposition what he meant by the expression 'namaka' or 'nominal'. He said it signified a transaction reduced to writing but not followed by possession. As he was not questioned further on the point, it must be taken that this explanation was accepted at that trial.
45. The 1st defendant in D-1 used the word benami to describe the sale-deed Exhibit IX. This word does not ordinarily signify that the transaction to which the term is applied is a sham transaction and of no effect, but rather that the actual executant is one who has lent his name to the person who is the real party to the contract.
46. Whatever he meant by the word 'benami,' it must be noted that this statement was made and the deeds NN and SS were drawn up four or five years after the date of the sale to 2nd defendant under Exhibit IX.
47. The 1st defendant and his father had throughout their careers, been borrowing money right and left and playing off one set of creditors against another.
48. Statements made by a debtor, after be has parted with all his interest in his property and can only hope to save something from the wreck by means of some piece of fraud or trickery, are not, in our opinion, entitled to serious considerations. Nor are the conduct and opinion of the Court of Wards during their management of Kuruppam's estate of any importance in the circumstances.
49. The whole of the criticisms levelled against the sale to Kuruppam seem to be based on suspicions and surmises, and it was easy enough for the respondents to raise doubts and suspicion with reference to transactions which had occurred long ago and the principal parties to which were no longer in existence to explain the very complicated dealings which took place in the course of about 12 years. We hold, therefore, that Exhibit IX, the sale deed, is not shown to be a nominal and sham document. On the other hand we have no hesitation in holding that the parties thereto fully intended that it should have this effect of transferring the 1st defendant's rights in the Zamindari of Kuruppam in satisfaction of the prior debts set out in the document.
50. The next question for decision is as to the claim of the plaintiffs to the annuity of Rs. 1,200 a year payable to the 1st defendant under Exhibits F and IX with arrears for 12 years, and a sum of Bs. 9,500 alleged to have been due to Appandhora under the decree in execution of which the property was sold at auction and bought by the plaintiffs with profits as stipulated in the conditional sale to Appandhora (Exhibit F) amounting altogether to Rs. 42,000 and odd. As regards the annuity, putting the most favourable construction on the proceedings in execution and the sale certificate, the claim of the plaintiffs seems to be entirely untenable, In the execution petition Exhibit 49, execution was asked for against the immoveable properties of the 1st defendant and Appandhora under Section 274 and also against moveable property, meaning by the latter the rights of Appandhora under Exhibit F. We may take it that this attachment continued, as contended by Mr. Bangachari, until the date of sale. The next application which needs to be mentioned is that of 30th August 1893 (Exhibit 24G), praying for sale of the rights of Appandhora under the conditional sale-deed. In pursuance of that application the rights of Appandhora which were treated as moveable property were sold and bought by the plaintiffs for Bs. 50, as would appear from Exhibit 24(J) and Exhibit 24(K). It may be mentioned that in the sale proclamation the value of Appandhora's rights was put down as Rs. 5. Then we find that the plaintiff as purchaser at auction sale put in a petition (Exhibit 14) apprehending that what was sold was only a piece of paper (Exhibit F) and not the lien which Appandhora had for the moneys advanced by him and asked that this lien also might be sold. A fresh proclamation was issued and the warrant of sale [Exhibit 24(d)] shows that the immoveable property belonging to the defendant already attached was directed to be put up for auction. The sale, however, did not then take place. A fresh proclamation was issued (Exhibits 24 and 240, and the proclamation shows that what was proclaimed for sale was the right of redemption in respect of Chemudu Zamindari which the 1st defendant had under Exhibit F, the deed of conditional sale executed in favour of Appandhora, and the right of Appandhora to redeem the property reserved to him under Exhibit XI. the sub-mortgage in favour of Jagannatha Row. We do not think that Exhibit 24(m), auction list which is relied on by the learned Vakil for the appellants, shows anything to the contrary. The sale certificate (Exhibit E) also shows that those were the two rights which were put up for sale and purchased by the plaintiff. It is difficult to see how the plaintiff can be said to have purchased the annuity of Rs. 1,200 payable to the 1st defendant under Exhibit II. It cannot be described as part of the equity of redemption and if it can be so described, the equity of redemption had passed by the sale to the 2nd defendant in 1888. Appandhora acquired no right to the annuity under Exhibit F or Exhibit XI, both of which documents were brought into existence in order to put an end to the usufructuary mortgage in favour of Kuruppam under which an annuity was payable to Chandraraju. In respect of the claim to Rs. 9,500 said to have been advanced by, Appandhora to Chandraraju under Exhibit F, we may proceed on the assumption that the right, supposing it existed, had been sold at the Court auction and purchased by the plaintiff. But in our opinion the plaintiff has failed to prove that any such amount was due to Appandhora. The Subordinate Judge was of opinion that this is the amount borrowed by Appandhora under Exhibit TT but for the benefit of Chandraraju. In this finding, however, we cannot agree at all. On the other land that document states that the amount of Rs. 9,500 was borrowed by Appandhora and his brothers on the mortgage of family properties in order to pay. off a number of debts which were due by them as having been borrowed for their family purposes. There is nothing in that document to suggest that the sum of Rs. 9,500 or any portion of it was intended to be borrowed for the benefit of Chandraraju. In Exhibit XI itself Appandhora states that his father had contracted debts before his death and that he had much difficulty in discharging those and other debts borrowed for the expenses of the family. It is true that in Exhibit N the brothers of Appandhora seem to repudiate their liability for the sum of Rs. 9,500 borrowed under Exhibit TT. But it by no mean follows that the amount was borrowed by Acpandhora for the benefit of Chandraraju. We are also prepared to assume that Appandhora might have procured small loara from time to time as the Chemudu Zamindar was always in want. At the same time one cannot assume without some definite evidence that the Chemudu Zamindar at the date of Exhibit F was indebted to Appandhora in this amount. On the other hand, in the deed of gift with respect to Mamidi Mitta executed the very day before Exhibit F, it is stated that this Mitta was given to Appandhora in return for his services rendered to the Zamindar and also in consideration of the money which he had received from him as loan and which he had not repaid. We are not at all satisfied that the recital in Exhibit F as to this sum of Rs. 9,500 is true and bona Me. We hold, therefore, that the plaintiffs are not entitled to this amount. The conclusions at which we have thus arrived are that the sale deed of 12th March 1839 in favour of the 2nd defendant was valid and intended to be given effect to and, therefore, the Zamindari passed to him. Nor are the plaintiffs entitled to the annuity of Rs. 1,200 by right of their purchase at Court auction or the sum of Rs. 9,500 mentioned in Exhibit F or to any rights enforceable against the Chemudu Zjmindari in the hands of the 2nd defendant.
51. The result is that the decree of the Subordinate Judge will be reversed and the suit dismissed with costs of the 2nd, 3rd and 4th defendants and defendants Nos. 6 to 10 to the extent of their interest in the suit in this and in the lower Court, including the costs provided in the decree in Appeal No. 260 of 1916. In consideration of the special difficulty and importance of the questions involved in this appeal we direct under Rule 41 of the Appellate Side Rules that the fees of the appellants' (defendants Nos. 2,3 and 4) Pleaders be assessed at Rs. 2,000 to be payable 1 y the plaintiffs-respondents (Respondents Nos. 1 and 2).
52. The memorandum of objection is dismissed bat without costs.
53. This appeal can be disposed of in a few words. The question relates to the village of Jaosadavalasa, which originally belonged to the Chemudu Zamindari. This was dedicated on the 10th June 1884 to Sri Suryanarayanasami temple. The temple is situated at Kuruppamand the Zamindar of Kuruppam was made trustee. The deed of gift was executed in pursuance of a vow made by Chandraraju to the effect that if he succeeded in obtaining possession of the Zamindari of Chemudu which was then in the possession and enjoyment of Narasay-yamma, he would endow a village out of the estate to this god.
54. He did in fact get the Zamindari under Exhibit XV from Narasayyamma and in fulfilment of that vow he dedicated Jamadavalasa to the deity. Mr. Rangachari has argued that having regard to the indebtedness of Chandraraju, it is hardly credible that he really intended to give effect to this gift. But we fail to sea anything incredible in such conduct, and the evidence is overwhelming to show that it was a bona fide gift. In our opinion the reasons given by the Subordinate Judge in his judgment for holding that the gift was not acted upon are wholly inconclusive. The Zamindar of Kuruppam, after the execution of the deed, took possession of the property as trustee and in his accounts the village has throughout been treated as belonging to the deity, and there is no reason whatever for supposing that the income was not applied for the benefit of the temple. On more than one occasion he admitted that he was holding the village as trustee and in all the dealings between Kuruppam and 1st defendant the village was treated as the property of the temple. The Subordinate Judge finds that the gift, though true, was not voluntary and acted upon, to use his own language. There is no issue as to the gift having been made under coercion or as a result of any misrepresentation and there is no evidence whatever that it was not voluntary. The weight of the evidence is clearly in favour of the gift being real and bona fide. We, therefore, reverse the decree of the Subordinate Judge in respect of this village also and dismiss the plaintiff's suit with costs in this Court.