1. A money decree was obtained against the undivided brother of the first defendant in the suit, and in execution that brother's share was attached on the 26th of December 1908. The judgment-debtor died on the 2nd January 1909, and the defendant, who was his co-parcener, was brought on the record as his representative. Sale was ordered on the 7th April 1909, and the plaintiff purchased the judgment-debtor's interest in the property. The plaintiff now sues for possession. The lower Courts have dismissed the suit on the ground that, as the judgment-debtor, who was an undivided co-parcener, died before the order for sale was made, his interest survived to the defendant and was not available to the plaintiff for sale. In our opinion the question is concluded by authority. In Bailur Krishna Rau v. Lakshmana Shanbhogue, 4 Ma. 302. the question was fully discussed, and following a judgment of the Privy Council reported as Suraj Bunsi Koer v. Sheo Persad Singh, 6 I.A. 88 : 5 C. 148 : 4 C.L.R 226 : 4 Sar. P.C.J. 1 : 3 Suth P.C.J. 589 : 2 SL.R 242. the learned Judges held that, where an interest of the judgment-debtor, a co-parcener, had by an attachment been brought under the control of the Court for the purpose of executing the decree, such attachment precludes the accrual of title by survivorship in the event of the death of the judgment-debtor before an order for sale is made. In the case before the Privy Council it is true that not only was there an attachment but also an order to carry out the sale before the death of the co-parcener. But in the course of their judgment, the Judicial Committee expressed their dissent from a judgment of the North-West Provinces High Court in which it Was held that, while the co-parcener had died after his interest in the property was attached but before an order for sale was made, there remained no interest in the judgment-debtor which could be brought to sale. The decision in Lakshmana Aiyar v. Srinivasa Aiyar 8 M.L.J 64. lays down the same principle. The lower Courts refer to certain later decisions which, it is said, upheld the contrary view. In Sankaralinga Reddi v. Kandasami Tevan 30 M. 413 : 17 M.L.J. 834 : 2 M.L.T. 365. the decision in Bailur Krishna Rau v. Lakshmana Shanbhogue 4 M. 302. was not dissented from, but it was expressly pointed out that under that decision the attachment has the effect of preventing the property passing by survivorship, and the fact that the attaching creditor does not, by attachment, create such a charge on the property as to acquire priority over other creditors coming in, is in no way opposed to this view. This also is what was decided in Zemindar of Karvetinagar v. Trustee of Tirumalai, Tirupati, etc., Devastanam 2 Ind. Cas. 18 : 32M. 429 : 19 M.L.J. 401. wherein it was held that no charge was created by the attachment in favour of the creditor as against a subsequent creditor. There is no doubt an observation in Zemindar of Karvetinagar v. Trustee of Tirumalai, Tirupati etc., Devastanam 2 Ind. Cas. 18 : 32 M. 429 : 19 M.L.J. 401. that the decision in Bailur Krishna Rau v. Lakshmana Shanbhogue 4 M. 302. is opposed to this view. But whether that is so or not, no dissent was expressed from the decision to the effect that the attachment precludes the accrual of title by survivorship. The observation of their Lordships of the Privy Council in Moti Lal v. Karrabuddin 25 C. 179 : (P.C.) 24 I A. 170 : 1 C.W.N. 639, relied upon in Zemindar of Karretinagar v. Trustee of Tirumalai, Tirupti, etc., Devastanam 2 Ind. Cas. 18 : 32 M. 429 : 19 M.L.J. 401., has no reference to this question. That such is the effect of this decision seems to be borne out by the judgment in Murugaiya Mudaliar v. Ayyadorai Mudaliar 9 Ind. Cas. 286 : 9 M.L.T. 96. in which the learned Judges say that the case of Zemindar of Karvetinagar v. Trustee of Tirumalai, Tirupali, etc., Devastanam 2 Ind. Cas. 18 : 32 M. 429 : 19 M.L.J. 401. had reference to the question whether in the circumstances of that case, the judgment-creditors who had obtained orders of attachment were in a stronger position than those who had not obtained such orders. The question before us is, therefore, concluded by the decision in Bailur Ktishna Rau v. Lakslimana Shanbhogue 4 Ma. 302. We, therefore, reverse the decrees of the Courts below. Before finally disposing of the case, we direct the lower Appellate Court to return a finding on the 1st issue. The parties may adduce fresh evidence.
In compliance with the above order the District Judge of Vizagapatam submitted the following
FINDINGThe appeal has been remanded by the High Court for a finding upon the issue 'whether the plaintiff is a benamidar for Akula Bangariah and cannot maintain this suit ?
2. The onus of proving the issue lies upon the defendant who set up the plea. He has examined two witnesses, viz., himself and another. Defendant as D. W. No. 1 says that on the 3rd day of the auction, when the Amin told Bangariah that he would stop the auction, Bangariah sent for T. Ramamurthi (the present plaintiff) and Ors and got them to bid, that Ramamurthi bid up to Rs. 80 and that Bangariah afterwards paid that amount openly to Ramamurthi to deposit in Court. D. W. No. 1 says Baugariah and Ramamurthi have joint trade in a shop and joint contracts. D. W. No. 2 Y. Sanyasiraju says he was at Court on the day of auction on some business of his own unconnected with the auction and that he watched the auction from 4 to 6 p.m., though he had no interest in it and did not bid. D. W. No. 2 is said by the defendant to have witnessed the payment by Bangariah to Ramamurthi. In chief-examination he says the real purchaser was Bangariah who paid the money for Ramamurthi, but in cross-examination he says he understood Ramamurthi was bidding for Bangariah as they came to auction together. D. W. No. 2 was a very unsatisfactory and prevaricating witness. Though in examination-in-chief he said he was getting Rs. 400 a year from land he admitted in cross-examination that his house is about to be sold under a decree. I reject his evidence as untrustworthy.
3. The only witness examined by the plaintiff is Akula Bangariah himself. He deposes that he has no joint business or contracts with the plaintiff Ramamurthi. He says that on the other hand since the sale there have been suits between him and Ramamurthi. Notwithstanding this A Bangariah disclaims all interest in the suit house and declares Ramamurthi bought it with his own money and not on his (Bangariah's) behalf.
4. There are, therefore, only the uncorroborated statements of the defendant as against the denial of A. Bangariah (against his own interest.) that he has any interest in the suit house. In these circumstances I find that defendant has failed to prove, that the plaintiff T. Ramamurthi bought the suit house as benamidar for Akula Bangariah. Plaintiff can, therefore, maintain the suit.
5.This second appeal coming on for final hearing this day, after the return of the above finding, the Court delivered the following
We accept the finding, set aside the decrees of both the lower Appellate Court and the Court of first instance, and direct a preliminary decree for partition to be passed. The plaintiff will get half his costs throughout from the defendant.