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Venkatasubba Sastrial and ors. Vs. V. Subramania Aitar and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1918Mad500; 42Ind.Cas.827
AppellantVenkatasubba Sastrial and ors.;venkatasubba Sastrial and ors.
RespondentV. Subramania Aitar and ors.;v. Subramania Aiyar
Cases ReferredVaithinatha Aiyar v. Vaithinathaswamy Aiyar
Excerpt:
evidence act (i of 1872), section 92 - sale deed--oral evidence showing deed was intended to be mortgage, admissibility of. - .....by the plaintiffs on behalf of themselves and of the 9th defendant for a declaration that a sale-deed of 4th july 1901 executed by the members of the plaintiffs' family was not bona fide sale-deed, nominal and inoperative, and for recovery of possession of the agricultural lands sold under it, the plaintiffs having themselves continued in possession of the house and house sites soil under the deed. the connected suit (original suit no. 23of 1913) was brought by the 1st defendant to recover possession of the house and house sites against the plaintiffs in original suit no. 10 of 1913. i shall call the plaintiffs in original suit no. 10 of 1913 plaintiffs hereafter. though the plaint in paragraphs 4 and 5 uses the words benami', 'colourable', 'nominal' and so on and the claim is.....
Judgment:

Sadasiva Aiyar, J.

1. These are appeals from two connected suits brought in the Subordinate Judge's Court of Tinnevelly. Appeal No. 3 is against the decision in Original Suit No. 10 of 1913 brought by the plaintiffs on behalf of themselves and of the 9th defendant for a declaration that a sale-deed of 4th July 1901 executed by the members of the plaintiffs' family was not bona fide sale-deed, nominal and inoperative, and for recovery of possession of the agricultural lands sold under it, the plaintiffs having themselves continued in possession of the house and house sites soil under the deed. The connected suit (Original Suit No. 23of 1913) was brought by the 1st defendant to recover possession of the house and house sites against the plaintiffs in Original Suit No. 10 of 1913. I shall call the plaintiffs in Original Suit No. 10 of 1913 plaintiffs hereafter. Though the plaint in paragraphs 4 and 5 uses the words benami', 'colourable', 'nominal' and so on and the claim is based upon the allegation that no interest whatever in the properties was intended to be conveyed under the sale-deed Exhibit 35 (Exhibit A is a copy of Exhibit 35), the evidence let in by the plaintiffs at the trial (see especially the evidence of P. Ws. Nos. 1 and 12) was to the effect that the parties intended to give simple mortgage rights to the 1st defendant over-the properties for the sums which the 1st defendant promised to pay to the plaintiffs' numerous creditors (mortgage-simple and decree creditors). The word malaranai' in Madura and Tinnevelly seems to be used in a very loose manner to indicate not only transactions and documents which are wholly colourable but also to indicate documents which were intended to have some other legal effect than the effect which the language of the document in its plain and natural construction imports. The sale deed (Exhibit 35) thus is not a sham, nominal or colourable transaction according to the evidence of the plaintiffs themselves but it is a transaction which was intended to have a legal effect of far-reaching character and to transfer large interests and rights in the properties mentioned therein in favour of the 1st defendant. The executants deliberately stated in the document that it was executed in Order to convey the absolute proprietary interest in the properties mentioned in it to the 1st defendant. There was no mistake existing in the mind when making the statements and they iptended to state in the document that, it should operate as a conveyance, but the plaintiffs' case as developed in the trial was that both parties secretly intended that it should operate as a mortgage though they intended to state and did state differently, Is it' allowable to parties to adduce evidence to show that what they intended to state and what they stated in a document was not what they intended should be the operation of the document but it was to have some other legal effect? I think we are bound by, the decision in Mottayappan v. Palani Goundan 20 Ind. Cas. 924., following the decision in Balkishen Das v. W. F. Legge 4 C. W. N. 153: 9 Ind. Dec. 1130 to hold that oral evidence is inadmissible to prove that it was intended to have some other mode of operation than that which the executants stated and which the parties intended that it should state. It is clear from the evidence in this case that the parties intended that the 1st defendant should advance moneys of his own to discharge the mortgage debts, simple money debts and decree debts mentioned in Exhibit A and due by the plaintiffs. It is also clear that a few days even before the execution of the document, the 1st defendant (vendee) borrowed Rs. 2,000 in order to discharge the plaintiffs' decree debts. He afterwards paid Rs. 3,000 odd to discharge the prior mortgage debts Exhibits N and N-1, though he had agreed under Exhibit 4 to, pay only Rs. 3000 odd that account. He had also to pay Rs. 3,700 odd to a usufructuary mortgagee whose debts were not mentioned at all in Exhibit A. It is, therefore, impossible to contend that no interest whatever was intended to be transferred to 1st defendant under Exhibit A and as decided by the Chief Justice and Sashagiri Aiyar, J., in Vaithinatha Aiyar v. Vaithinathaswamy Aiyar 29 lad. Cas. 970., where an ostensible vendee has paid out of his pocket Sums towards the amounts due by the vendor arid which he (the vendee) has undertaken to pay, the burden lies very heavily upon the vendor to prove that the transaction was intended to b8 a sham and colourable one. It, no doubt, appears from the evidence that the amounts mentioned in Exhibit A as payable by the 1st defendant to discharge the plaintiffs' debts do not correspond in many cases exactly with the actual sums due to the said creditors. It further appears that the 1st defendant in November 1902 sent the account Exhibit B to the managing member of the plaintiffs' family (Gopala-krishna Aiyar), showing the amounts which he (1st defendant) had paid or the amounts for which he had made himself liable to the creditors of the plaintiffs' family. This indicates one of three alternatives, 20 Ind. Cas. 924 that at the very time of the sale-deed, there was a contemporaneous oral agreement to re-convey on re-payment of 1st defendant's expenses, 4 C. W. N. 153 that there was a secret understanding that the sale-deed was to be really a mortgage-deed for the sums payable to the 1st defendant, or 29 lad. Cas. 970. that there was a Subsequent oral agreement to re-convey. The Subordinate Judge finds for the second of the three alternatives and I am inclined to agree with him. But, as I said, evidence cannot be adduced to prove such an intention varying the terms of the registered document. As regards the 1st and the 3rd alternatives, neither is put forward as the basis of the claim as in the plaint or developed at the trial. The result is that the sale-deed Exhibit 35 Ought to be given its legal effect as conveying title to the 1st defendant as owner as regards the plaint lands; The 1st defendant's subsequent conduct in trying to get what he thought would be a stronger or safer title through bringing the properties to sale by means of a suit instituted on the mortgages, Exhibits N and N-1, in the name of his benamidar (whom he made to get an assignment of these deeds from the original mortgagee) has no relevancy on the question of the legal effect of Exhibit: A or 35 in creating a perfect title in the 1st defendant according to its own unaided strength. In the result, I would dismiss the appeal with costs. The other appeal follows, Defendants Nos. 1, 2 and 4 will get separate costs on the value of the properties in which they are respectively interested.

Ayling, J.

2. I agree.


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