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P.A. Raghunatha Chari Vs. N.S. Aravamuthaiyangar and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in34Ind.Cas.617
AppellantP.A. Raghunatha Chari
RespondentN.S. Aravamuthaiyangar and ors.
Cases Referred and Tirbeni Pershad v. Bam Narain
Excerpt:
vendor and purchaser - sale--suit by vendee to recover possession--long delay in instituting suit--inference--sale in fraud of creditors, proof of--sale nominal transaction--burden of proof--promissory note antedated--presumption as to date, whether arises--negotiable instruments act (xxvi of 1881), section 118. - john wallis, c.j.1. this is a case in which the parties have so conducted themselves as to make it difficult to arrive at the exact truth. the main consideration for the sale-deed, exhibit a, which was executed on the 13th july 1897 though dated the 10th, is a promissory note, exhibit b, which there is evidence to show was antedated and was really executed on the same day as the sale-deed, exhibit a. exhibit b was for rs. 3,200 made up of five items, and on the same day a conditional sale-deed of other items for rs. 1,150, exhibit gg, was executed, and there is evidence that a third sale-deed of other items for rs. 500 was prepared but not executed. these deeds purport to show an indebtedness of rs. 5,150 on the part of the 1st defendant to the plaintiff. the defendants pleaded that the.....
Judgment:

John Wallis, C.J.

1. This is a case in which the parties have so conducted themselves as to make it difficult to arrive at the exact truth. The main consideration for the sale-deed, Exhibit A, which was executed on the 13th July 1897 though dated the 10th, is a promissory note, Exhibit B, which there is evidence to show was antedated and was really executed on the same day as the sale-deed, Exhibit A. Exhibit B was for Rs. 3,200 made up of five items, and on the same day a conditional sale-deed of other items for Rs. 1,150, Exhibit GG, was executed, and there is evidence that a third sale-deed of other items for Rs. 500 was prepared but not executed. These deeds purport to show an indebtedness of Rs. 5,150 on the part of the 1st defendant to the plaintiff. The defendants pleaded that the sale-deed sued on was benami, and the 2nd defendant, the son, also pleaded that in any case it was not executed for antecedent debts, but to defraud creditors from whom the 1st defendant had borrowed for immoral purposes. At the trial the case set up for the 2nd defendant was that Exhibit A was part of a scheme to defraud the creditors of the 1st defendant and that Exhibit A was nominal and without consideration, while Exhibit GG- was in satisfaction of the only real indebtedness of the 1st defendant, but purported to be for debts which were non-existent. The 1st defendant made a statement to this effect when examined by the Subordinate Judge at the first hearing, but he did not appear at the trial to contest the suit, and he has not appealed against the decree which gives the plaintiff his share in the lands and charges the share of the 2nd defendant with the balance of the consideration found to have actually passed. The fact that he has not appealed may be due to his having become an insolvent, but as the Subordinate Judge points out the Vakil who originally appeared for him afterwards appeared at the trial for his son, the 2nd defendant, and he would no doubt have been put into the box if it had been thought that his evidence would help the 2nd defendant. In order that the sale may be binding on the 2nd defendant it is, of course, necessary to show that it was a real and not a nominal sale and that it was for antecedent debts. Even then it would not be binding if they were incurred for immoral purposes, but no attempt has been made to dispute the finding of the Subordinate Judge that this has not been proved. The question whether the sale deed is supported by consideration of antecedent debts to the extent found by the Subordinate Judge may be dealt with first. If the promissory note Exhibit B, as I am disposed to think, was executed at the same time as the sale-deed, it cannot be regarded as creating an antecedent debt, and it is for the plaintiff to prove as against the 2nd defendant that at the date of Exhibits A and B the 1st defendant was indebted to the plaintiff in the sums which are set out as the consideration for Exhibit B. Two of these items are admitted but it is said that they were satisfied by Exhibit GG and that the items of consideration mentioned in that document were non-existent. When, however, the 1st defendant was sued for these lands by a vendee from the plaintiff, he filed a written statement, Exhibit JJ, in which he pleaded that out of the consideration payable by the plaintiff under Exhibit A Rs. 450 had not been paid, and it had been arranged it was to be treated as paid under Exhibit GG so as to entitle the 1st defendant to a re-conveyance of the lands sold under Exhibit GG on payment of the balance of Rs. 700. This is altogether inconsistent with the story that the sale-deed Exhibit A was benami, and, as it appears from Exhibit JJ that the plaintiff and the 1st defendant had then fallen out, it does not appear likely that the 1st defendant would then have made in the plaintiff's favour an admission of having received all the consideration but Rs. 400 under Exhibit A, if in fact he had received nothing at all, or very much less.

2. The 2nd defendant's case is that the 1st and 3rd items of consideration for Exhibit B, Rs. 930 and Rs. 210 or Rs. 1,190 in all, were really discharged by Exhibit GG, but there is no satisfactory explanation why Exhibit GG is a sale for Rs. 1,150 and not for Rs. 1,190. On the other hand, it is said that the plaintiff has not proved that the items of consideration mentioned in Exhibit GG are genuine. One of the items, Exhibit LL, is a promissory note, dated 5th July 1896, in respect of an alleged advance by the plaintiff to the 1st defendant for the discharge of Court decrees and a payment under a lease to Srirangam Sellappa who has not been called. As regards the other item, an alleged advance on a pledge of kammals, though P. W, No. 5 proves that plaintiff pledged a jewel with him, Exhibit YY, and though Exhibit FFF shows that subsequently to the date of Exhibit GG the 1st defendant pledged kammals to a third party, we have only the plaintiff's evidence that the money raised by him on pledge was for the use of the plaintiff, apart of course from the recital in Exhibit GG and the fact that the defence have not put the 1st defendant into the box to contradict him. However this may be, it is, in my opinion, clear that at the date of Exhibits A and GG, the 1st defendant was indebted to the plaintiff in respect of other items besides those mentioned in Exhibit GG and, therefore, the story that Exhibit GG was taken in full discharge cannot be aecepted.

3. Coming now to the other items of consideration mentioned in Exhibit B, Exhibit M is the register of a suit, Original Suit No. 47 of 1896, against the plaintiff, 1st and 2nd defendants on a mortgage, dated 28th June 1892, executed by plaintiff and the 1st defendant for Rs. 400 in which the plaintiff obtained a decree for principal and interest. Rs. 90 was realized by the sale of the plaintiff's house which was re-conveyed to him later, and Rs. 600 was collected by rateable distribution in Original Suit No. 296 of 1896 out of assets realized by sale of the plaintiff's properties, and Rs. 100 was paid on 20th February 1898 and is said to have been borrowed by plaintiff under Exhibit PP. On 6th June 1895 the 1st defendant and plaintiff put in a petition that satisfaction might be entered up, saying they had paid Rs. 450 in April 1898, far more than was then due, but this was contested and the petition was dismissed. Lastly on 12th August 1898 satisfaction was recorded. Exhibit K is a promissory note of even date with the mortgage sued on, in which 1st defendant admits that the money was borrowed for his own use, and Exhibit L, dated 27th June 1895, is a renewal of Exhibit K. There is no reason to doubt that this item of consideration is perfectly genuine, as the debt was the 1st defendant's and the decree was discharged by the plaintiff. Exhibit HHH is a decree, dated 25th September 1896, against 1st defendant and plaintiff on a promissory note for Rs. 580 executed by them on 19th January 1896 for Rs. 680-4-3. Exhibit R shows that in satisfaction of the decree the plaintiff's properties were sold for Rs. 1,501, subject to a mortgage for Rs. 2,500 and to a claim on a security-bond. Out of the Rs. 1,501, Rs. 600 was paid as already mentioned in rateable distribution under Original Suit No. 47 of 1896. Exhibit O, dated 30th October 1897, is a receipt in favour of 1st defendant and plaintiff for Rs. 44-14-3, the balance due under the decree. The 1st defendant has not been put into the box to contradict the plaintiff's story that the consideration for the promissory note sued on went to the 1st defendant, and the plaintiff's case is supported in this and other respects by Exhibit H, a memorandum of accounts in the 1st defendant's own writing, dated 2nd March 1897, that is to say, three weeks before the date which appears on Exhibit B, and four months before the date of Exhibit A. It includes Rs. 900 with interest to 30th Masi Rs. 974, which corresponds to the item Rs. 980 in Exhibit B; about Rs. 900 under Original Suit No. 47 of 1896; Rs. 200 under Small Canse Court No. 38 of 1897, item 3 in Exhibit B Rs. 700 for the decree in Original Suit No. 296 of 1896; Rs. 185 borrowed to pay decree of Tirumalai Aiyangar and Ayyavier and Brothers and items bringing up the total to Rs. 3,117 and certain further items bringing the amount up to Rs. 3,165-12-0. It is, in my opinion, satisfactory evidenced the antecedent indebtedness of the 1st defendant who has not been put into the box to explain it. It, no doubt, seems strange that the plaintiff should have advanced so much money to the 1st defendant, and incurred such liabilities on his behalf, that he should have delayed so long to enforce his rights under Exhibit A, if it is a genuine sale-deed, and that he has not accounted satisfactorily for not being in possession of the original sale-deed, but on the whole after a careful consideration of the evidence I see no sufficient reason for differing from the conclusion at which the Subordinate Judge has arrived. In view of the conclusion I have arrived at on the evidence as to consideration, the question of possession is of less consequenee, but I am not satisfied that the plaintiff had failed to get possession before 1902, when he alleges his possession was disturbed. Some of the documents may be explained with reference to his possession of lands sold to him under Exhibit GG, but Exhibit CO in the 1st defendant's writing seems to me to show that the 1st defendant had paid rent to the plaintiff for some of the items in Exhibits A and GG and owed a balance of Rs. 57 on that account. The rest of the document shows that the 1st defendant was to pay rent for the item in Exhibit GG, and to vacate one of the items in Exhibit A and that the plaintiff's lessee was to pay rent for Sallakulli which consists of items in Exhibit A. In this state of things I do not think there are sufficient grounds for interfering with the decree of the lower Court and would dismiss the appeal with costs.

Phillips, J.

4. This is a suit to recover possession of property under a sale-deed executed by appellant's (2nd defendant's) father (1st defendant in favour of plaintiff (1st respondent) on 10th July 1897 and has been brought in 1909, just before the expiry of the period of limitation available. The two questions for consideration are:

(1) Whether the sale-deed is merely nominal and executed in order to defeat 1st defendant's creditors; and

(2) Whether when the sale was effected, there were antecedent debts due by 1st defendant and whether the property passed to the vendee as consideration for their discharge so as to bind 1st defendant's son (appellant).

5. Plaintiff alleges that the sale was effected in July 1897, and that he got possession of the plaint property and remained in possession till about May 1902, when defendants trespassed upon the land and dispossessed him. In January 190l plaintiff prosecuted 1st defendant and others for trespassing upon his threshing floor and stealing the crop harvested from some of the plaint lands. 1st defendant then pleaded that he was in possession of the lands in question and the accused were discharged. Plaintiff does not state in what circumstances he was dispossessed in May 1902, nor did he take any steps to recover possession until he brought this suit seven years later in 1909. His only explanation for the delay is that he was staying at Cuddapah 'as well as want of funds to file the suit.' The sale-deed sued upon as well as the connected documents are said to have been stolen from plaintiff by 1st defendant in 1901 at the time of the alleged rioting and theft, but plaintiff made no complaint about the loss of his documents. No doubt he says he told the Police, but that is obviously a false story, for no action was taken upon what he told them, although the Police instituted a case of theft of their own belts, sandals, &c;, which is said to have occurred at the same time. Plaintiff, therefore, starts this case under somewhat suspicious circumstances. He cannot satisfactorily explain his inability to file the original documents upon which he relies, and tells an obviously false story of their theft, and he does not give an adequate explanation for allowing the defendants to enjoy the mesne profits of the lands from 1902 to 1909 without disturbance, although he was himself the real owner. No doubt he has brought his suit within the period-of limitation, and in some circumstances no adverse inference could safely be drawn from delay in bringing a suit, bat when each, day's delay entails additional monetary loss on a plaintiff, his omission to bring a suit until just before the expiry of the period of limitation requires some explanation, and the absence of any reasonable explanation must throw some doubt on his case. In the present case that doubt is stronger than it need some times be, because plaintiff and 1st defendant have been on bad terms since 1901, and plaintiff, has allowed his enemy peaceful enjoyment of stolen property for no less than 7 years, during the whole of which period he has made no attempt to recover the title-deeds stolen from him and has not attempted now to explain his omission to do so. These two circumstances lend considerable force to appellant's contention that the suit sale under Exhibit A was a nominal transaction. This contention would be still further strengthened if appellant can prove his assertion that plaintiff never got possession of the suit lands. Defendant No. 1 sold the plaint lands under the original of Ex-hibit A on 10th July 1897, and some other lands in the same village on 12th July 1897 under the original of Exhibit GG, both sales being in favour of plaintiff. It is found by the learned Subordinate Judge, and not seriously disputed in appeal, that both the sale-deeds were executed on the same day, and admittedly the sale under Exhibit GG was a genuine one and the lands passed to plaintiff. The learned Subordinate Judge has found that plaintiff did get possession and relies for this conclusion on Exhibits Y, Z, SS series, WW, WW1, CO, DDD and DDD1. Exhibit Y is a copy of a receipt given to plaintiff for quit-rent on some of the suit lands, but admittedly the numbers of the suit lands found no place in the original and this copy, Exhibit Y, was first produced in the criminal case of 1901 and was obviously altered to differ from the original for the purposes of that case, and no reliance can be placed on it. Exhibits Z, SS series, 'WW, and WW1 no doubt show that plaintiff had to pay rent for lands in the suit village, but there is nothing to show that it was for the suit lands. Plaintiff was in possession of the lands mentioned in Exhibit GG, and, although he executed a sale-deed for them to P. W. No. 10 on 22nd June 1900 (Exhibit HH), the purchaser did not get possession until sometime after August 1902 (vide Exhibits JJ and KK). The lands referred to in the above documents may well be the lands sold under Exhibit GG. Exhibit CO is a rough note said to be in 1st defendant's handwriting, but it is not at all clear what it really means. It is suggested that it proves that one Ariyar, who took a lease of the plaint lands on 16th August 1897 under Exhibit I), was actually in possession and paid rent. There is nothing in the document to support this conclusion, and in my opinion the document is of very little value without some proper explanation of its meaning. The rate of rent mentioned in Exhibit CO cannot be made to tally with the rent provided in Exhibit D. Consequently it cannot be said that Exhibit CO proves payment of rent under Exhibit D. It does, however, show that 1st defendant was in possession of one of the suit lands at least until 11th April 1899, but I think the document must be disregarded as being unintelligible. Exhibits DDD and DDD1 are depositions of P. W. No. 11 (4th defendant) in the criminal case in 1901, and do not materially help plaintiff. Then we see that all the documents relied on by the Subordinate Judge are really of very little value. In addition to these 1st respondent relies on Exhibits AA, T series, SS series, TT and ZZ. Exhibit AA does not specifically mention the suit land, but the reference in it to a dispute between 1st defendant and Ratna Naik, the purchaser under Exhibit GG, would show that it referred to land sold under that document. Exhibits T series refer to the plaint lands and are samba and har outturn accounts of Aravamudu Aiyangar (plaintiff) of 1898 and 1899. All the lands are in the names of third parties and cultivated by sundry tenants. P. W. No. 12, who prepared some of them, was a prosecution witness in the criminal proceedings and says in examination-in-chief that plaintiff was present when they were prepared and had the patrai made, but does not know who took away the paddy and in cross-examination he admits that before 1901 plaintiff and 1st defendant would come to the village together and 1st defendant would either lease out the land or get some one to cultivate, As plaintiff and 1st defendant were at that time close friends, this seems very reasonable and I can see no reason why this witness should be treated as hostile to plaintiff. Plaintiff would have it that all his witnesses who make statements in favour of defendants are hostile, and the Subordinate Judge treats their statements in plaintiff's favour as admissions, but there is nothing on record to show why all these witnesses should perjure themselves in favour of defendants, or give evidence hostile to plaintiff unless it were true. Exhibits SS series are merely arrears lists for Faslis 1310 and 1311, and no details of lands are given. As the latest date in the documents is May 1902, there is no reason why plaintiff's arrears mentioned therein should not relate to lands in Exhibit GG. Exhibits TT and TT1 are attachment lists prepared by P. W. No. 6, and they show that in Fasli 1310 some of the suit lands were in the enjoyment of plaintiff, but these documents were prepared at the time of the criminal litigation and about the same time that the false document Exhibit Y was prepared, The only other document is Exhibit ZZ and this is explained by P. W. No. 6, who obtained the unregistered lease-deed Exhibit E from plaintiff on 13th April 1901. He is also said to be hostile, but no reason for the hostility is assigned, and he distinctly says that he could not get possession under Exhibit E. Plaintiff is unable to produce any receipts, except Exhibit Y referred to above, and he does not even produce the original of the lease-deed, Exhibit D. That document recites that all payments of rent under it should be endorsed on the document itself, and its non-production is, therefore, very suspicious as there is no other document to show that the lease ever took effect. There was no reason why plaintiff should have had this document with him when his documents were stolen, unless he carried all his documents with him on that occasion, in which case it is strange that Exhibit B was not also stolen. We then see that Exhibits T and T l are the only documents which recite plaintiff's possession of the suit lands. No doubt defendants do not produce any receipts, but it is likely from the fact that plaintiff prosecuted the 1st defendant unsuccessfully in 1901 that 1st defendant was then in possession, and the oral evidence is in defendants' favour. Plaintiff and 1st defendant are first cousins and there is no adequate reason alleged for treating all plaintiff's witnesses as hostile. Exhibits FF series and W show that since 1902 1st defendant claimed the suit lands, and several of the documents filed by plaintiff, such as Exhibits AA and SS, are as much evidence of 1st defendant's possession as of plaintiff's possession. It is suggested that they favour 1st defendant because he belongs to the original shrotri-emdar's family, but the close relationship between plaintiff and 1st defendant refutes that suggestion, when there is no evidence to support it. Defendant No. 2's case is undoubtedly prejudiced by the fact that 1st defendant has not gone into the witness-box, and quite possibly he has failed to do so in the interests of his son, but on the other hand it is possible that he has kept in the background because the allegation that he incurred debts for immoral purposes is true and he is unwilling either to admit or deny the charge. The burden of proving that Exhibit A is a nominal transaction lies on appellant, but I think that sufficient circumstances have been proved to show that plaintiff has acted in such an extraordinary manner as to cast the utmost suspicion on the truth of his story. The fact that he can produce none of the important documents on which his case depends and the absence of any satisfactory evidence as to his possession require explanation. He admits that he had to bring a criminal case in January 1901, but says that he continued in possession until about May 1902, and yet he cannot show how he was dispossessed. None of the witnesses can speak to plaintiff's possession, but on the contrary support 1st defendant's possession. There is no reason to suppose that the whole village is hostile to plaintiff, unless it is on the supposition that they think he is putting forward a false claim. He says he went away to Cuddapah but admits that he used to come to the suit village once in four months. It is very difficult to believe that he would have quietly acquiesced in his dispossession for seven years, if the lands had really been sold to him. I would, therefore, hold that there are very strong reasons for holding the sale to be a nominal one.

6. This finding is supported by a reference to the evidence as to the consideration for the sale-deed Exhibit A. The deed is for Rs. 3,500 i.e., Rs. 3,312 due under the promissory note Exhibit B and Rs. 188 paid in cash. The consideration for Exhibit B consists of 5 items.

(1) Rs. 980 due on the bond Exhibit J.

(2) Rs. 915 due under the decree in Original Suit No. 47 of 1896.

(3) Rs. 210 due under the decree in Small Cause Suit No. 38 of 1897.

(4) Rs. 700 due under the decree in Original Suit No. 296 of 1896.

(5) Rs. 395 borrowed to pay debts to discharge the decree due to V. Tirumalachari and Ayya Iyer.

7. It is contended for plaintiff that, as Exhibit B is a promissory note and execution is admitted by 1st defendant, presumptions arise under Section 118 of the Negotiable Instruments Act that it was executed for consideration and on the date it bears, and that, therefore, the burden of proof is on 2nd defendant to show that there was no consideration binding on him. The second presumption is negatived by the oral evidence of the three attesting witnesses to Exhibit B that it was executed on the same day as Exhibit A, and plaintiff has failed to examine several of the attesting witnesses to Exhibits A and GG to disprove this statement. There is other evidence tending to show that Exhibit B was not executed on 22nd March 1897 and consequently the sole evidence of plaintiff that it was executed on that date must be rejected. As Exhibit B is shown to be a false document in that it bears a false date, the presumptions under Section 118 are rebutted, and the burden of proof is on plaintiff to show that the consideration is real, and that there were antecedent debts due by the father which would justify the alienation of the son's property and make the alienation binding upon him. No doubt in Mala-yandi Goundan v. Subbaraya Vanavaraya Gaundan 8 Ind. Cas. 854 it was held that the son had to make out that the money for a mortgage-deed executed by the father had not been advanced in a case where the father had allowed judgment to go by default, and it was held that his liability must thereby be taken to have been established. Whether the same burden would have been cast upon the son if the father's liability had not been held to have been established, is not stated, but the question is discussed in Seetharam Naidu v. Balakrishna Naidu 22 Ind. Cas. 638 by the learned Chief Justice and he held that when there is a question of an antecedent debt the burden of proving it lies on him who asserts it, and this principle was recognised in Gangisetti Ramaya v. Kallika Peraya (1912) M.W.N. 959 and in Bisheswar Dayal v. Harbans Sahay 6 C.L.J. 659 and Tirbeni Pershad v. Bam Narain 20 Ind. Cas. 951 and in the last case it was held that the recital as to consideration in the mortgage-deed was not evidence as against another member of the mortgagor's family whose interests were affected. I have no doubt, therefore, but that the onus is on plaintiff in this suit to prove an antecedent debt, and as I understood the learned Advocate-General's argument he did not dispute this proposition, but contended that if the debt was proved against the father it was proved against the son. This contention is, I think, quite correct, but I do not think that the presumption to be drawn from the execution of the promissory note can be said to be proof against the father when that presumption is rebutted by proof that the document is itself a false one.

8. On the same day that Exhibit A was executed 1st defendant executed another sale-deed (original of Exhibit GG) to plaintiff for Rs. 1,150, reciting as consideration Rs. 590 due on a pledge of a pair of diamond Teammate and Rs. 560 due on a promissory note Exhibit LL, dated 5th July 1896. It is defendant's case that Rs. 1,150 were really due, i.e., items 1 and 3 in Exhibit B amounting to Rs. 1,190 and that the items in GG are fictitious. The first point that strikes one is that plaintiff was not in a position to find all the money alleged to have been lent to 1st defendant. On 9th October 1896 plaintiff's house was sold for Rs. 90 (Exhibit M) and in March 1897 all his lands were sold for Rs. 1,501 (Exhibit Q) and from the fact that this money was applied in rateable distribution towards his decree-debts, which were not thereby fully satisfied, it is evident that he was in a bad financial position towards the end of 1896 and beginning of 1897 and could not meet his debts in March 1897. it is alleged that Rs. 500 was lent on the kammals on 5th January 1896, and yet on 19th January 1896 plaintiff and 1st defendant borrowed Rs. 500 from V. Ramasami Aiyar and in August 1896 plaintiff was indebted to Pichai Rowther and increased this indebtedness on 14th April 1897 (vide Exhibit YY) to Rs. 860.

9. As regards the item of Rs. 395 in Exhibit B plaintiff, realizing that the recital in Exhibit B that it had already been paid could not be proved, says as P. W. No. 1 that it was paid on the day the note was executed, and yet at that very time all plaintiff's immoveable property was being sold for his debts. Again when Exhibit A was executed Rs. 188 is said to have been paid in cash. The Subordinate Judge has discredited these cash payments and I agree that he is quite right in his finding. Plaintiff seeks to corroborate Exhibit B by Exhibit H, a memorandum of account said to be in 1st defendant's handwriting. It is proved by plaintiff and he says it is an account of what 1st defendant owed to him on 2nd March 1897, and forms the basis of Exhibit B. The debts referred to in Exhibit GG find no place in Exhibit H, and plaintiff's explanation of the omission is very unconvincing. The first item in Exhibit H 'principal Rs. 900' is said to refer to Exhibit J, a simple bond of 27th May 1892 for Rs. 700. The next item is 'interest 30th Mast Rs. 74-4-0'. The amount that would have been due on Exhibit J on 2nd March 1897 is about Rs. 970, but it is not at all clear why Rs. 900 of this amount should be treated as principal. In Exhibit H there is also an item devasthanam Rs. 25, which finds no place in Exhibit B, and the amounts paid for the decrees for Thirumalai Aiyangar and Ayyavier and Brothers come only to Rs. 185, a sum which had evidently been already paid when Exhibit H was written. There is also an entry of Rs. 36 interest of Pichai Rowther, which finds no place in Exhibit B. Items in B 2-4 are for decrees obtained jointly against 1st defendant and plaintiff. Admittedly item No. 2 was 1st defendant's own debt and to evidence this and to secure himself plaintiff took the promissory note Exhibit K from 1st defendant. No such security is taken for item No. 4, and the evidence of the creditor P. W. No. 3 goes to support appellant's case that the loan was borrowed by plaintiff with 1st defendant as a surety, and we see that it was to satisfy this debt that all plaintiff's lands were brought to sale, Plaintiff relies on an alleged admission of 1st defendant in his written statement in a suit filed against him by Ratna Naik to recover possession of the lands sold to him under Exhibit HH, i.e., the lands sold under Exhibit GG (Exhibit JJ). In it 1st defendant refers to another sale-deed (besides Exhibit GG) executed on 12th July 1897 and says a balance of Rs. 400 was due under it by plaintiff. There is oral evidence that not only Exhibits A and GG were executed on that day but also a third sale-deed, and I think to make this a relevant admission against 2nd defend- ant, it must be construed strictly. It might refer to Exhibit A or to this other sale-deed, but if it refers to the former it is not possible to explain in what way Rs. 400 could have been due to 1st defendant under it. The third sale-deed is not before us, and so one cannot say whether the figure of Rs. 400 would apply to its conditions or not. I, however, think that if Exhibit JJ is strictly construed, it cannot be held to be an admission of receipt of the whole consideration under Exhibit A except Rs. 400, for that would read, into the admission, words which are not there. There is thus strong reason for supposing that the debts mentioned in Exhibit GG-are not real. Item 5 in Exhibit B is undoubtedly false. The evidence as to item 4 is also not at all satisfactory, and even assuming that 1st defendant was liable jointly with plaintiff to the creditors for this debt he cannot be treated as owing it all to plaintiff. Items 1 - 3 may be true, but Exhibit GG discharges items 1 and 3 and only item 2 remains. Exhibits RR series show that the debt to Kasturi Rangan Chetti was not discharged till 1898 when plaintiff and 1st defendant jointly paid Rs. 600. It cannot have been discharged by plaintiff alone before Exhibit B. The inability to prove the consideration coupled with the fact that two separate sale-deeds were executed on the same day between the same parties and that a spurious promissory note was also got up on the same day, strengthens my conviction that the sale-deed Exhibit A was a purely nominal transaction. An indemnity deed (Exhibit MM) was executed at the same time as Exhibit A by 1st defendant, but plaintiff has even lost the original of that. In these circumstances, I would set aside the Subordinate Judge's decree and dismiss the plaintiff's suit with costs throughout.

10. By the Court. - The appeal is dismissed with costs. The memorandum of cross-objections is dismissed with costs.


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