Skip to content


In Re: Thillai Govindaswami Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1928Mad1259; 113Ind.Cas.358
AppellantIn Re: Thillai Govindaswami Pillai and anr.
Cases ReferredV.E.A.R.M. Firm v. Maung Ba Kyn and
Excerpt:
.....unsuccessful party, conclusive. in other words the order dismissing a claim to attach property has all the force of a binding adjudication in favour of the attaching creditor which can be assailed only by the institution of a suit by the defeated claimant to establish his right to the property as provided in rule 63. it necessarily follows that in such a suit the onus lies on the unsuccessful claimant to establish his title to the property affirmatively. 6. i do not think that the judgment of their lordships can be construed as overruling the view taken by the several high courts in the cases referred to above that the onus is on the unsuccessful claimant to prove that he has a valid title to the property specially when no reference is made to any of those oases......appeal. the suit was brought under order 21, rule 63, civil p.c., to establish their right to the suit property in consequence of their claim thereto when it was attached as the property of defendant 3 at the instance of his judgment-creditors, defendants 1 and 2 having been dismissed. plaintiffs admit that the suit property originally belonged to defendant 3. the judgment-debtor, but he conveyed it to doraswami pillai since deceased, who was the father of plaintiff and the undivided brother of plaintiff 2 by a sale-deed ex. a, dated 13th september 1913, and hence it could not be attached in execution of the decree obtained by defendants 1 and 2 against defendant 3. the order dismissing the plaintiff's claim is ex. f dated 18th august 1924. the plea of the attaching creditors defendants.....
Judgment:

Thiruvenkatachariar, J.

1. The plaintiffs are the appellants in this second appeal. The suit was brought under Order 21, Rule 63, Civil P.C., to establish their right to the suit property in consequence of their claim thereto when it was attached as the property of defendant 3 at the instance of his judgment-creditors, defendants 1 and 2 having been dismissed. Plaintiffs admit that the suit property originally belonged to defendant 3. the judgment-debtor, but he conveyed it to Doraswami Pillai since deceased, who was the father of plaintiff and the undivided brother of plaintiff 2 by a sale-deed Ex. A, dated 13th September 1913, and hence it could not be attached in execution of the decree obtained by defendants 1 and 2 against defendant 3. The order dismissing the plaintiff's claim is Ex. F dated 18th August 1924. The plea of the attaching creditors defendants 1 and 2 is that the alleged sale was a sham transaction not supported by consideration but brought about solely with a view to defeat the creditors of the transferrer, defendant 3, who was then in embarrassed circumstances the transferee being his own maternal uncle and father-in-law. Both the lower Courts have concurrently come to the conclusion that the defendants' case that the sale-deed Ex. A is a sham transaction' is true and have, therefore, dismissed the plaintiff's suit. The lower appellate Court has gone fully into the evidence adduced on the question. It finds that at the date of Ex. A. the vendor was in very embarassed circumstances, that the alleged consideration for the sale viz., the discharge of a prior debt due on a promissory note executed by defendant 3 in favour of one Thangavelu Pillai was fictitious and that no consideration was in fact paid by the transferee that the vendor even after the sale-deed continued to be in possession and enjoyment of the property, that the property was worth a great deal more than Rs. 300 which was the price mentioned in the 'sale-deed and that the object of the transfer which was made to the vendor's uncle and father-in-law was merely to shield the property from the vendor's creditors. The learned Subordinate Judge upon those findings has come to the same conclusion as the Court of first instance, viz., that the sale was a sham transaction.

2. It is argued that the finding of the Subordinate Judge is vitiated by the circumstance that he misdirected himself on the question of onus. In para. 3 of his judgment he says as follows:

It is well settled that where the ostensible owner has been defeated in a claim proceeding and sued to set aside the order made on the claim petition under Order 21, Rule 63, Civil P.C., the onus lay on him to establish that he was the real owner of the property and it was not sufficient for him to rely merely upon the deed which shows his ostensible title (vide Perayya v. Venkayamma A.I.R. 1924 Mad. 770.

3. In that case, the learned Judge Venkatasubba Rao, J., refers to the following cases (1) Jamahar Kumari Bibi v. Askaran Boid [1915] 22 CRI.L.J. 27, Govind Atmaram v. Santai [1888] 12 Bom. 270 and Nanhi Jan v. Bhuri [1908] 30 All. 321 as supporting that view as to the onus in such cases and a reference to those cases fully supports his conclusion. The same view has been taken by the Punjab Chief Court in Laiq Ram v. Thola Singh [1919] 47 P.L.R. 1919 and by the Lahore High Court in Ai Bai v. Bhai Lahan Singh A.I.R. 1921 Lah. 97. There is thus a strong concensus of authority of three other High Courts in favour of the view taken by Venkatasubba Rao, J., in Perayya v. Venkayamma A.I.R. 1924 Mad. 770.

4. It is argued for the appellant that the view taken in all these cases as to the onus of proof being on the plaintiff must be taken to be overruled by the recent decision of the Privy Council in V.E.A.R.M. Firm v. Maung Ba Kyn and that the decision of their Lordships is on the other hand authority for the appellant's contention that the onus lies on the attaching creditor who seeks to defeat the ostensible title of the plaintiffs under a registered sale-deed in their favour. In the case before their Lordships the judgment-debtor had executed in favour of the plaintiffs a sale-deed of his properties for Rs. 20,000. Upon the evidence it was found that the property which was sold for its proper value was supported by consideration to the extent of Rs. 17,000 which was the amount due to the father of one of the purchasers both under a previous mortgage of the same property in his favour and also a simple money debt due to him by the vendor and that the purchasers had not satisfactorily proved the payment of the balance of Rs. 3,000 which was to be paid in cash to the vendors. The sale was impeached by an attaching creditor of the vendor as a fraudulent one and it is with reference to that plea that their Lordships make the observation which is relied on:

Now they being the ostensible owners of the property under a duly registered deed of transfer, obviously the party claiming to attach that property for somebody else's debt not their debt but the debt of the original debtor must show that the sale was a fraudulent one and that could only be done in this case (there is no other evidence) by showing utter inadequacy of consideration.

5. Their Lordships held that upon the finding that for the property which was worth Rs. 20,000, Rs. 17,000 had been paid, the non-payment of the balance of Rs. 3000 is not enough to allow them to draw the conclusion that it was a fraudulent sale. That seems to me to be the only point decided in that case. I do not think that their Lordships' judgment can be construed as laying down that even though in the claim proceedings the sale-deed relied on by the claimant has been rejected as fictitious yet in the suit filed under Order 21, Rule 63, he has only to file the very same sale-deed and then the onus shifts on the attaching creditor to show that it was not a real or a bona fide transaction supported by consideration. Under Order 21, Rule 63, the order passed in the claim proceedings is, subject to the result of any suit which is brought under that; rule by the unsuccessful party, conclusive. In other words the order dismissing a claim to attach property has all the force of a binding adjudication in favour of the attaching creditor which can be assailed only by the institution of a suit by the defeated claimant to establish his right to the property as provided in Rule 63. It necessarily follows that in such a suit the onus lies on the unsuccessful claimant to establish his title to the property affirmatively. If he proves as the plaintiff in the Privy Council case did that the property was sold for its real value and that the sale is supported by adequate consideration he discharges the onus which lies on him and the plea-of the attaching creditor that the sale is either fraudulent or fictitious cannot be upheld.

6. I do not think that the judgment of their Lordships can be construed as overruling the view taken by the several High Courts in the cases referred to above that the onus is on the unsuccessful claimant to prove that he has a valid title to the property specially when no reference is made to any of those oases.

7. So far as the present case is concerned the decision of the lower appellate Court whose finding on a question of fact is binding in second appeal rests on a careful consideration of the evidence in the case on both sides. The learned Subordinate Judge has elaborately discussed the evidence and has given ample reasons for discrediting the plaintiff's case and even if he had misdirected himself as to the onus of proof, which in any opinion he has not, that had not in any way affected the findings he has arrived at on a consideration of the evidence adduced on both sides.

8. The second appeal is dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //