Juthan Ram Dubey vs Ramun Ram Tewari and Others

Wort, J.—This is a plaintiff''s appeal arising out of an action claiming possession of certain property under a sale deed of 10th August 1928. It may be mentioned, although I do not propose to go into great detail, that the interest in the property, the subject-matter of the sale deed, is a six annas interest. It appears from the facts proved in the Court below that a third party had one anna four pies interest in this property which was sold to the plaintiff on 22nd November 1922 for a consideration of Rs. 1500. It is not material perhaps to mention, but I state the fact that this third party was unwilling to sell this property to the defendant and this sale to the plaintiff in 1922 was merely a part of the machinery by which the interest in the one anna four pies came ultimately into the hands of the defendant, which it did on 19th February 1924 by a sale deed executed by the plaintiff to the defendant for a consideration of Rs. 1600.

Now in order to discharge the debt incurred by the defendant under this sale deed he entered into a mortgage to the plaintiff. Ultimately the mortgage debt amounted to Rs. 2375. Then comes the sale deed of 10th August 1928 by which the six annas interest was sold to the plaintiff, the consideration being Rs. 2375, the mortgage debt; Rs. 1000 a loan by the plaintiff together with interest Rs. 285, in all Rs. 1285; and a further sum paid in cash of Rs. 340. The defence substantially to this claim was that both the sale deed of 10th August 1928 and the mortgage were fictitious transactions.

The Judge in the Court below has held that the sale of one anna four pies interest to the plaintiff was a genuine sale, that the mortgage of the 6 annas interest was genuine, but that the sale of the 6 annas interest to the plaintiff was a fictitious transaction, and expressed itself in these words which are perhaps important to notice:

All these facts and circumstances lead me to conclude that Ex. 2 is a farzi deed executed by defendant 1 in favour of the plaintiff to save the properties from the clutches of the former''s creditor, Ram Lal Tewari.

One of the contentions put forward by Mr. De, who appears on behalf of the plaintiff, is that although the plaintiff has failed to prove the payment of one part of the consideration of the sale deed, yet on payment of that part he is entitled to succeed in his action for possession. In my judgment that proposition, which perhaps in other circumstances would be well founded, is not relevant for reasons which will presently appear. If the case had been a case of independent persons contracting and a part of the consideration had not been paid, the failure to pay the consideration would not necessarily involve a failure of the suit for possession. But here questions of Hindu law arise which make the proposition altogether inapplicable.

So far as the facts are concerned, as I have indicated already, the learned Judge in the Court below has come to the conclusion that neither the Rs. 1000 nor the Rs. 340 was paid. So far as the Rs. 1000 is concerned, it depended upon the evidence of two witnesses, perhaps it will be more accurate to say one witness, because witness 13, who was one of the witnesses called to prove this part of the transaction, proved nothing but merely formal matters. Plaintiff''s witness 11, however, was the witness who had purported to establish the consideration so far as Rs. 1000 was concerned. The learned Judge has declined to accept the evidence of this witness.

There are a number of circumstances in the case which led him to that conclusion, amongst which was the non-production of the document which was evidence of the original transaction of Rs. 1000. Nothing that the learned advocate in this case has advanced as an argument, has in any way-led us to the conclusion that the learned Judge, who saw the witnesses in the case and recognized the improbability of the story, was in error. That is all I propose to say with regard to that. The learned Judge with regard to the consideration of Rs. 340 to refer to his own words, says it is a "cock and bull story", and he has declined to believe the three witnesses who were called to establish this part of the case. He has come to the conclusion that the evidence is highly discrepant and entirely unworthy of belief. The substantial; part of the case, in my opinion, relates to the argument which has been advanced as to whether the transaction of the sale can be supported by that part of the consideration which has in fact been established, viz. a mortgage debt of Rs. 2375. Having regard to the authorities, it is quite impossible to accept the argument that the proof of Rs. 2375 out of a consideration of Rs. 4000 is sufficient to support this sale.

The case to which I will refer in this connexion is the well-known case in AIR 1927 37 (Privy Council) . Their Lordships were dealing with the case in which out of a consideration of Rs. 3500 the application of Rs. 3000 had been established the balance being described, as in this instance, a trifling amount: in other words, proof of the bulk of the= consideration would establish the transaction. The contention which Mr. De now puts forward is one which seems to me to have some startling results.

As I understand the argument, it is, that if the consideration which is said to support the transaction is for legal necessity, the bulk must be proved, but if, as in this case, a part of the consideration is an antecedent debt, he is no longer under that obligation, I should have pointed out in the early part of my observations that this mortgage washy the father, and the other defendants in the case are the sons and, that, prima facie, the mortgage which formed part of the consideration was an antecedent debt. Now the proposition which is put forward would1 lead us to the conclusion, if it were logically followed, that so long as a part of the consideration, however small, could be properly characterized as antecedent, it would establish a transaction which could not otherwise be supported.

Mr. De in this connexion relies upon the well-known decision in Brij Narain v. Mangla Prasad A.I.R.1924. P.C. 50, on a statement of Lord Dunedin (at p. 136). It is this:

It is more than apparent how in practice these two principles may clash, nor is this in any sense a new discovery. Nothing clearer could be said than what was said by Lord Hobhouse in delivering the judgment of the Board in Namoni Babuasin v. Modun Mohun (1886) 13 Cal. 21 already quoted: ''Destructive as it may be of the principle of independent coparcenary rights in the sons the decisions have for some time, established the principle that the sons cannot set up their rights against their father''s alienation for an antecedent debt, or against his creditors remedies for their debts, if not tainted with immorality.''

Mr. De''s argument would require an addition to the words "antecedent debt" of the words "however small". He refers to the case which was then quoted by Lord Dunedin viz. the case in Namoni Babuasin v. Modun Mohun (1886) 13 Cal. 21. At the end of the passage Lord Hobhouse made this very observation:

On this important question of the liability of the joint estate their Lordships think that there is now no conflict of authority. The circumstances of the present case do not call for any inquiry as to the extent to which sons are precluded by a decree and execution proceedings against their father....

It will be seen from the argument addressed to us by Mr. De that he would have us make a distinction between a consideration as for legal necessity properly so called, and a consideration which was of the nature of an antecedent debt, but in my judgment no such distinction can be made. The question in all cases is this: whether the consideration is of such a character as to support the transaction. Legal necessity and antecedent debt are in my opinion entirely on the same footing, to this extent that as it is necessary to prove the bulk of the consideration in the one case, it is necessary to prove the bulk of the consideration in the other.

In this case, apart from the arguments whirvh we have heard on the question of fact, there has been no attempt to prove the consideration other than that dependent upon the mortgage debt of Rs. 2375. It is further contended by Mr. De as another branch of the same argument that Rs. 2375 of the mortgage debt should be taken to be the true value of the property in the sense that the parties to the transaction of 10th August 1928, treated the balance of Rs. 1285 and Rs. 340 as fictitious. That is an argument which, in my judgment, cannot be accepted.

For these reasons I hold that th& appeal fails and should be dismissed with, costs.

Manohar Lall, J.

I agree.