M. Anantanarayanan, J.
1. The appellants are defendants 2, 3, 4 and 6 in the Courts below in a suit for recovery of possession instituted by the plaintiff, claiming to be the beneficial owner of the properties, whose title was not affected by the ostensible sale deed executed by her in 1952 in favour of her brother, the first defendant, the vendor of these properties by subsequent transactions to the appellants. I might briefly state that, on the application of the criteria relevant to an alleged nominal transaction of this character, which was not intended to convey title as between the parties, the learned District Munsif of Melur who tried the suit, came to the conclusion that the plaintiff had failed to establish her case, and dismissed the suit as against the subsequent vendees (appellants).
2. The matter came up in first appeal before the learned Subordinate Judge of Madurai. He again dealt with the main matters in controversy, in the context of the tests applicable, and came to the precisely opposite conclusion. In his view, the sale deed in favour of the first defendant executed by the plaintiff was a nominal transaction which was not intended to convey title, and which did not convey title. Further, in the light of certain notices sent by the plaintiff both to the first and second defendants, the Court held that the defendants (appellants) could not claim to be bonafide transferees for value without knowledge of the real title inhering in the plaintiff. The appeal was allowed, and the suit decreed.
3. In the light of the course that I have been constrained to adopt in the interests of justice, upon a consideration of the facts and probabilities as approached and discussed by the first appellate Court, I am deliberately refraining from making any comments upon the merits, which might be taken as an indication of my own view, one way or the other. It appears to me to be fairly clear that the learned Subordinate Judge has not discharged his responsible task of differing from the trial Court upon these exclusive questions of fact, if he felt impelled to so differ, on a careful consideration of the evidence in a proper manner, and in the right perspective. I need not reiterate the well-known proposition that where property is conveyed by an owner to another party by a valid registered instrument which is followed, as it was in this case, by transfer of registry, the burden lies heavily upon the alleged beneficiary to show that the real title did not pass, and that the ostensible vendee was a mere namelender. That burden could be discharged by such a plaintiff by satisfying the well-known criteria, namely, (1) the motive for the transaction, (2) the source of purchase money relating to the transaction, (3) the custody of the documents of title, and (4) the subsequent facts of possession. On all these aspects the trial Court held against the plaintiff-first respondent. It is the first appellate-Court which has differed, and it is the error in the perspective of approach of that Court that has constrained me to allow the Second Appeal, at least to limited extent of setting aside the decree of the first appellate Court, and remanding the appeal for a proper and full consideration on the merits.
4. I shall briefly indicate the reasons justifying this remand, without proceeding into the merits in great detail, and without indicating my own view upon the facts and probabilities of the evidence.
5. First of all, upon the question of motive, the trial Court pointed out that two alternative versions were put forward by the plaintiff (the first respondent) both of which failed in proof. Actually, the sale was not by the plaintiff alone, but by the plaintiff and her alleged adopted son, one Mookan Naicker, who is not a party to this suit. No doubt the plaintiff and the first defendant are sister and brother but the learned Subordinate Judge does not state that the trial Court was in error in holding that the motive had not been established. The first may not be a very material component. But it is certainly a relevant consideration, and on this aspect it is the appellants who have cause for complaint.
6. Next, with regard to the aspect of consideration, there are two facts in favour of the appellants, the subsequent vendees. The first is that they produced two out of the three promissory notes, the discharges of which formed the main items of consideration under the sale deed. The second is that there are subsequent usufructuary mortgages by the first defendant and by one of the appellants, which would amount prima facie to dispositions of the suit properties, whether the mortgagees really succeeded in obtaining possession or otherwise. It is true that, per contra we have the oral evidence of two witnesses who are creditors under the promissory notes, who gave testimony to the effect that it was the plaintiff (first respondent) who actually paid the moneys. The plaintiff came forward with an extraordinary case that the discharged promissory notes were with her, that there was a trespass into her house by defendants 2,4,5, etc. and that the documents were stolen. No attempt has been made to substantiate this except by her ipse dixit and Exhibit A-7, the petition given by her to the police in August, 1956. The record does not show what happened to this petition, or what action the authorities took. The oral evidence of the creditors has to be balanced against the indisputable production of the discharged instrument (vouchers) by the appellants. On this aspect, it is atleast clear that the learned Subordinate Judge should have approached the question with the perspective that the burden lies heavily on the party affirming the nominal character of the transaction.
7. The third lest, with regard to the perspective of approach, is even more heavily against the plaintiff-first respondent. The transfer of registry was made in favour of the first defendant, and the subsequent cist receipts have been produced by the vendees (appellants). The first appellate Court thinks that since the plaintiff and the first defendant were sister and brother, the hand that paid the cist is not of much significance. But apart from the oral evidence of the plaintiff herself, I can find no evidence in the record to show that the subsequent facts of possession were in favour of the plaintiff. On the contrary, the Village Officers like the Munsif and the Karnam have supported the version of possession by the first defendant and the alienees from him (appellants). This matter has to be carefully considered, again in the light of the burden of proof by the plaintiff-first respondent. I am unable to see how the learned Subordinate judge could come to the conclusion that the facts of possession were in favour of the plaintiff-first respondent, without further scrutiny of the probabilities on record.
8. I think that I have said enough to indicate that the disposal of the appeal by the first appellate Court cannot at all be regarded as satisfactory or as based upon a true perspective of approach. As far as the fifth defendant is concerned, his learned Counsel states that the fifth defendant is no longer interested in the properties, since she has released herself from the rights under the other othi in her favour, and I merely record the fact. The decree of the first appellate Court will be set aside, and the appeal, remanded to that Court for a proper and full disposal in the light of the above observations, which are not intended as conclusions upon merits. The costs will abide and follow the result of the remand. The Court-fee paid on the memorandum of Second Appeal will be refunded.
9. No leave.