Gillu Mal and Another vs Manohar Das Jai Narain and Others

Ross, J.—This is an appeal by the plaintiffs in a suit brought under Order 21, Rule 63. Puran Mal Ghanasam Dass were a firm, carrying on business in the city of Patna. The business was managed by Premsukh Dass, the father of defendants 3 to 8, and grandfather of defendants 14 to 16, and by Nathoram, defendant 2, father of defendants 9 to 13. On 21st September 1918 the firm borrowed Rs. 30,000 from Gillu Mal, plaintiff, 1 and Chokh Raj, the father of plaintiffs 1 and 2. The fir n failed in February 1921. By various private sales and in other ways defendants 2 to 16 had paid off Rs. 15,500 out of this debt. On 24th April 1923 a sum of Rs. 23,831 was still due and properties Nos. 2 and 3 of the mortgage bond, which are the subject-matter of the present suit, being a house in Mirchaiganj and a godown in Chamargalia in Patna city, were sold to the plaintiffs for Rs. 18,000 and the balance of the debt was remitted. It appears that on 25tb December 1920 the firm had obtained money on a hundi from defendant 1 and a decree was pissed on the basis of this hundi on 23rd February 1922 and execution was taken out for satisfaction of the decretal amount of Rs. 3,006 2 6 and the property in suit was attached of 31st August 1923.

The plaintiffs made a claim under Order 21, Rule 58 which was rejected without trial as the claimants did not appear Therefore this suit was brought for a declaration of their title be the properties in suit and for a permanent injunction against defendant 1 restraining him from proceeding against those properties in execution. The defence was that the plaintiffs are the brothers-in-law of Nathoram, defendant 2, and that the bond of 21st September 1918 and the deed of sale of 24th April 1923 were both fictitious instruments without consideration. The learned Subordinate Judge decided in favour of the defence on both their allegations and dismissed the suit.

The first question that arises is as to the burden of proof. It was contended on behalf of the appellants 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 deeds in question were fictitious and not what they appeared to be The respondent relied on the decisions in Jamahar Kumari Bibi v. Askaran Boid [191] 22 C.L.J. 27 and Bibi Sairah v. Mt. Gulab Kuer [1919] P.H.C.C. 409 and contended that the plaintiffs must show affirmatively that not only the ostensible but the real title was in them and that the burden was not discharged by merely pointing to the innocent appearance of the instruments under which they claimed, but they must show that they were as good as they looked; and that the defendant was not to make out that they were colourable It is not clear from either of the reports whether the claims under Order 21, Rule 58 in these cases had been dismissed after trial or not. In the first case it is indeed stated that an adverse decision of the Court had been given and the second case states that the objection was rejected on the ground that the transfer was fabricated in order to defraud the creditors of the judgment-debtor.

These observations would seem to indicate that there had been a trial of the claim; and prima facie it does not appear reasonable that the plaintiff should be in a worse position than be would otherwise have occupied merely because he preferred a claim under Order 21, Rule 58, but did not prosecute it to a decision. There is, however, a recent decision of the Judicial Committee in AIR 1927 237 (Privy Council) , a case in which a claim under Order 21, Rule 58 had failed and a suit was brought under Order 21, Rule 63. Their Lordships observed:

Now they (that is, the plaintiffs) 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.

On the authority of this decision it would appear that the burden of proof was on the defence, (The judgment then discussed the evidence as to the nature of the sale and the mortgage-deeds and their consideration and proceeded.) The conclusion therefore ab which I have arrived is that there was a real mortgage transaction and that as regards the sale, while the defence has been able to raise some grounds for suspicion they have given no evidence to establish that it was a fraudulent transaction. In my opinion therefore the appeal should be decreed with costs and the suit decreed with costs.

Kulwant Sahay, J.

I agree. It was contended that when a suit is instituted under Order 2t, Rule 63, Civil P.C., by a party against whom an order is made in a claim case, it is for him to establish the right which he claims to the property in suit and therefore in every case the onus is upon him to prove the real nature of the conveyance under which he claims irrespective of the fact whether the claim was dismissed after investigation or without investigation on the merits. In my opinion this is not a correct view of the law. Order 21, Rule 63 merely empowers the party against whom an order is made to institute a suit to establish his right. It does not deal with the question as regards the burden of proof and this question has to be decided according to the law of evidence. When there has been an investigation of the claim and it has been dismissed on the merits, it may be contended that the onus ia on the party who seeks to establish his right, inasmuch as his claim has been dismissed on the merits; but the recent decision of the Privy Council in AIR 1927 237 (Privy Council) seems to take a different view. When, however, a claim is dismissed for default without investigation on the merits, I fail to see why the plaintiff should be in a worse position than that in which he would have been if no claim case had been brought at all.

He was under no obligation to bring a claim case; he might have ignored the attachment and resisted the purchaser in execution of the decree from taking possession and driven him to bring a suit to establish his title under his purchase and in that case the onus would clearly be upon the purchaser to prove the benami nature of the conveyance. I think the position is the same when a suit is instituted by a party whose claim is dismissed for default without trial on merits. There are cases in the books which lay down that even in the case of dismissal of a claim for default, the suit contemplated by Order 21, Rule 63 has to be brought within one year of the order, but this is based on the provisions of Article 11 of the Schedule to the Limitation Act, where special provision is made for such suits. This, however, in no way affects the rules of evidence and of burden of proof and I am of opinion that the onus in the present case was upon defendant 1 to prove that the apparent state of things was not the real state and that the conveyance of the 24th April 1923 was fictitious and with out consideration. I agree that he has failed to discharge the onus and that the suit should be decreed with costs.