1. The main question at issue in this appeal is whether a document marked as Ex. J is admissible in evidence. The District Munsif rejected the document but it has been admitted by the Subordinate Judge. On the 9th October 1918 the second defendant executed a sale-deed, Ex. H. in favour of the plaintiff. The plaintiff claimed the lands sold in some execution proceedings but his claim was dismissed, and, therefore, he has brought this suit to declare his right under the sale deed. Defendants 2 and 3 contend that the sale to the plaintiff was a purely nominal transaction which was not intended to take effect and in order to prove this, they rely on this document Ex. J. The plaintiff says, amongst other things, 'I am entitled only to money, not to lands'. This recital was made almost immediately after the sale-deed for the lands had been executed in plaintiff's favour. I cannot possibly conceive that, if the plaintiff had really purchased those lands, he would have made this statement immediately afterwards. It was, I think, clearly made in order to protect the second defendant's interest, the sale-deed having been executed for the same purpose, namely, to protect the second defendant against his creditors who were then pressing him. I agree with the learned Subordinate Judge that Ex. J is very strong evidence of the nominal character of Ex. H, and I most certainly think that there is no reason to set aside his finding on this question of fact, as it is justifiable on the evidence of Ex. J. If he is entitled to rely on Ex. J, his finding that the sale was only nominal would be justified and must be accepted. As regards the admissibility of Ex. J, the appellant-plaintiff relies on the Full-Bench decision reported as Pydah Venkatachalapathi Garu v. Muthu Venkatachalapathi 1 L.W. 157. He relies on the following passage:
Assuming the plaintiff is entitled to sue fop possession on the ground that no title passed to the defendants! under the sale-deed (Ex. A) in order to succeed he must show that by virtue of the unregistered letter, the sale-deed does not affect the immoveable property which is comprised both in the sale-deed and in the unregistered letter, in the way in which the sale-deed purports to affect the property, and would affect the property if the unregistered letter had never been written. This being so, it seems to us the unregistered letter is relied on as evidence of a transaction affecting immoveable property and, being unregistered, is inadmissible in evidence.
2. The facts of the case are not given in the report but on reference to Mutha Venkatachalapathy v. Pyinda Venkatachalapathy Garu 17 Ind. Cas. 987 12 M.L.T. 579 the judgment of the Division Bench shows that the conflict in that case was whether the document evidenced a sale or merely a mortgage. There was no suggestion that the transaction was wholly nominal, the case on one side being that it was an outright sale and the case on the other that it was only a mortgage. In Mr. Justice Miller's judgment he cites the Full Bench case in Rajah of Venkatagiri v. Narayana Reddi 4 M.L.J. 198 : 6 Ind. Dec. 316 which he summarises as follows: 'It does not matter that the document may have the effect of proving a transaction affecting, immoveable property, if it issued--for the purpose of proving a transaction which does not affect immoveable property in any way, then it may be received in evidence'. If the summary of the Full Bench, judgment is correct, and I see no reason to think it is not, then it must be applied, to the present case where the facts are similar. What the defendants seek to do is to prove that there was a transaction, namely, the execution of a document which does not affect immoveable property because it was the intention of the parties that it should not do so. Therefore, in order to prove that fact or that transaction, this unregistered document, Ex. J., would be admissible in evidence; The others case of this Court relied on by the plaintiff is that reported as Putti Sesha Aiyar v. Kuppacher 26 M.L.T. 291 where again there was a dispute as to the nature of the interests that passed and no question of the nominal character of the transaction was raised. There is a case exactly in point reported in Yerraguntla Seshacharlu v. Mukkumalla Chinnian 25 Ind. Cas. 721 where it was held that an unregistered document purporting to be a sale-deed was admissible in evidence, because it was thereby sought to prove that a prior sale-deed was not a real transaction. That is the very point at issue in this case and if that is correct, and it is nowhere dissented from, Ex. J. is clearly admissible in evidence.
3. I have already found that if Ex. J is admissible in evidence, the Subordinate Judge's finding that the sale-deed was merely a nominal transaction is justifiable and consequently this second appeal must fail and is dismissed with costs.