Elayaperumal Thalaivar vs Vellaikannu Thevar and Another

Sundaram Chetty, J.—This appeal arises out of a suit brought by the plaintiff-appellant for a declaration that the plaint-mentioned property

belongs to him by right of purchase under the sale deed, Ex. A, obtained from one Guruvammal who had previously purchased from defendant 2

under the sale deed, Ex. 13, for Rs. 500. Defendant 1 who obtained a money decree against defendant 2 in O.S. No. 570 of 1917 on the file of

the District Munsif s Court, Srivilliputtur, caused the suit property to be attached as that of the judgment-debtor, the present defendant 2. The

plaintiff intervened in the execution proceedings setting up his claim to the attached property on the strength of the sale deed Ex. A, but without

making any investigation of the claim, the executing Court rejected the claim petition as being late: vide Ex. F. Thereupon, he instituted the present

suit under Order 21, Rule 63, Civil P. C, and his suit was resisted by the attaching creditor (defendant 1) on the ground that the original sale by

defendant 2 in favour of Guruvammal under Ex. B was a nominal transaction intended to defraud the creditors. The trial Court in a well-considered

judgment has found that the sale deed Ex. B, dated 19th August 1915, evidences a real transaction fully supported by consideration. On the

strength of this finding the plaintiff, who is only a subsequent purchaser from the vendee under Ex. B, was given a decree in his favour. In the

appeal, preferred by defendant 1 against that decree the learned Judge reversed the finding of the District Munsif and dismissed the plaintiff''s suit.

It is urged by the learned advocate for the appellant in this Court, that the judgment of the lower appellate Court is vitiated by an erroneous

assumption that the burden of proof lay heavily on the plaintiff to show that the sale in favour of Guruvammal was a real transaction and that it was

not for the attaching creditor to show in the first instance that the sale was fraudulent or collusive. In fact the learned Subordinate Judge has

distinctly stated in para. 4 of his judgment what view he took as regards the onus of proof in a case of this kind. To quote his own words, the

Subordinate Judge says thus:

The observation of the District Munsif in para. 8 of his judgment that the burden of showing that Ex. B. evidences a sham transaction, brought into

being by defendant 2 and his wife with a view to defraud his creditors, had not been made out on the side of defendant 1 is not correct law. The

burden of proof lay heavily upon the plaintiff to show that the sale deed relied upon by him is a real transaction supported by consideration, let

alone the defendant''s oral evidence.

In this view as regards the onus of proof, the Subordinate Judge approached the evidence adduced in the case and came to the conclusion that

the plaintiff had failed to discharge the onus of proof that lay on him. If his view of the law is correct this Court sitting in second appeal would

hesitate a great deal before interfering with the finding arrived at by him. It is urged on behalf of the appellant that the recent decision of the Privy

Council reported in AIR 1927 237 (Privy Council) , lays down the rule as to the burden of proof in a suit of this kind. It that case, the suit was by

a defeated claimant under Order 21, Rule 63, Civil P.C. and their Lordships observe thus at p. 855 (of 5 Rang.):

Now they being the ostensible owners of the property, under a duly registered deed and a deed of transfer, obviously, the party claiming to attach

that property for somebody else''s debt, not their debt, but the debt of the original debtor, must show that the sale was a fraudulent one, and that

could only be done in this case, (there is no other evidence) by showing utter inadequacy of consideration.

After laying down this dictum, their Lordships proceeded to deal with the evidence as regards the adequacy or otherwise of the consideration

and came to the conclusion that there was not enough warrant to draw the conclusion that it was a fraudulent sale. The principle of this decision

was followed by the Patna High Court in Gillu Mal and Another Vs. Manohar Das Jai Narain and Others, . In that case it was contended that

inasmuch as the claim under Order 21, Rule 58 was dismissed without decision on the merits, it was for the defence to show that the debt was

fictitious and not really what it appeared to be. There is some discussion in that judgment as to whether there would be any difference as regards

the initial burden of proof between a case where the claim was dismissed after investigation and the case wherein a claim was dismissed for non-

prosecution or without investigation. The decision of the Privy Council in V.E.A.R.M. Firm v. Mating Ba Kyin, was referred to and on the

authority of this decision it was held that the burden of proof was. on the defence. Even if there should be any doubt as to the initial burden of

proof in a case where the claim was dismissed after investigation, it seems to me that the rule laid down in the; aforesaid Privy Council case should

be applied in the present case where the claim was dismissed without investigation and. on the sole ground that it was put in too late. My attention

was drawn to a recent decision of this Court in Govindaswami Pillai, In Re: Thillai Govindaswami Pillai and Another, in which the effect of the

aforesaid decision of the Privy Council was considered. In that case, it is clear that the claim based upon ''a registered-- sale deed was investigated

and rejected as a fictitious transaction and thereupon the defeated claimant filed a suit for a declaration of his rights under Order 21, Rule 63, Civil

P.C. Thiruvenkatachariar, J., who decided that case is of opinion that the mere filing of the title deed in such a case does not shift the onus on the

other side to show that it was not a real or bona fide transaction, but some evidence has to be adduced in support of the reality of such a sale.

Inasmuch as the claim in that case was decided upon the merits and the sale was held to be fictitious it is distinguishable from the present case. It

seems to me that the dictum of the Privy Council in the aforesaid case can well nigh be applied to the present case for the reasons already stated

by me. That being so the observations of the learned Subordinate Judge as to the burden of proof in this case cannot be deemed to be correct.

Having in view the correct principle of law relating to the burden of proof it has to be seen whether on defendant 1''s side there is any tangible

proof of facts or circumstances which would show that the original sale under Ex. B was either a benami transaction or a fraudulent one brought

about with intent to defraud the creditors of defendant 2. Defendant 1 himself has deposed as his first witness. He alleges that Guruvammal had no

money of her own to purchase the properties. D. W. 2 similarly states that Guruvammal had no stridhanam properties. He is a man whose

credibility is open to much doubt and I should think there is no reliable evidence worth naming to make out the ingredients of fraud or collusion.

There is, no doubt, the fact that the sale by defendant 2 was in favour of his own wife. The sale deed Ex. B recites the particulars of consideration

and the trend of the entire documentary evidence on the plaintiff''s side clearly indicates as observed by the learned District Munsif that the sale

was a real transaction and was acted upon in a series of subsequent documents executed in respect of those properties. They are documents

ranging from 1915 to 1922. The pattas were duly transferred in favour of Guruvammal and payments of kist since then have been proved to be

made by her: vide Exs. C, D and F. It was she who was paying the loan due to the Government in pursuance of the undertaking in the sale deed

obtained by her and that is evidenced by the documents filed in the case. The suit by the present defendant 1 was six years after the execution of

the sale deed Ex. B. There is in my opinion a clear basis for the finding arrived at by the learned District Munsif but the Subordinate Judge would

even go to the length of ignoring the oral evidence on the defendants'' side and decide the case on a consideration of the evidence adduced on the

plaintiff''s side alone, in the view that if the plaintiff should fail to discharge the onus of proof that lay on him, his suit should be dismissed even

without reference to the evidence on the other side. But accord-ding to the dictum laid down by the Privy Council the burden of proof lay on

defendant 1 and it is by way of rebutting that proof that the plaintiff should adduce evidence.

I have therefore no hesitation in confirming the finding of the learned District Munsif and setting aside the decree of the lower appellate Court.

The decree of the District Munsif is restored. Defendant appellant 1 should pay the plaintiff''s costs throughout. Leave to appeal is refused.