Nalla Kumara Gounder vs Thangammal and another

Jagadisan, J.—One Thangammal filed three suits O. S. No. 1025 of 1955, O. S. No. 498 of 1957 and O. S. No. 561 of 1957, on the file

of the District Munsif''s Court, Erode, seeking to set aside three summary orders passed in E. A. No. 2694 of 1953 dated 2nd June 1955 in E. A.

No. 1370 of 1955 and in E. A. No. 7 of 1956 dated 31st August 1956 on the file of the same Court. These suits were necessitated as she was

unsuccessful in her claim petitions intervening in execution proceedings in original suits in which the first defendant in all the three suits had obtained

decrees against the other defendants in the suits. The plaintiff is the wife of one Palani Goundan. They had two sons, Nachimuthu Goundan and

Kasianna Goundan. The properties to which she laid claim, which were the subject matter of the attachment in execution of simple money decrees

against her sons, were properties purchased in her name under Ex. A-1 dated 16th September 1933. The plaintiff''s case was that it was her

exclusive property in respect of which neither her husband nor her sons had any right, title or interest. The creditor against the sons, the first

defendant in all the suits, however, contended that the properties though standing in the name of the plaintiff were joint family properties which had

been partitioned between the sons with the consent of their father and with the consent of the plaintiff herself. The learned District Munsif of Erode,

who tried the suit, negatived the plaintiff''s claim and dismissed all the suits. She accordingly preferred three appeals, A.S. Nos. 20, 87 and 136 of

1958 on the file of the Subordinate Judge''s Court, Erode, challenging the correctness of the judgment and decree of the trial Court in all the suits.

The learned Subordinate Judge, who heard the appeals reversed the judgment and decree of the trial Courts in all the suits and granted a decree

in favour of the plaintiff as prayed for with costs throughout.

These three second appeals have been preferred by the first defendant in all the suits. Learned Counsel for the appellant contended that the

finding of the lower appellate Court on the question of title to the suit properties is vitiated by a wrong approach made by the learned Subordinate

Judge by throwing the entire burden of proof on the defendants in the suit. The learned Subordinate Judge was apparently of the opinion that as the

ostensible title stood in the name of the plaintiff she must also be presumed to be the real owner of the properties, unless it is established by

persons contending against her that she was only a benamidar for the joint family of her husband and his sons. It is no doubt true that ordinarily

when a person impugns a transaction as being sham and nominal or as being benami for another person the onus of establishing such a case will be

upon the person who puts forward such a plea. But it has been pointed out by a number of decisions of which reference need be made only to the

decision in Perayya v. Venkayamma 47 M.L.J. 14=19 L.W. 627, that a defeated claimant in a claim proceeding has the burden upon him to prove

that the claim is well founded. The head note of this decision is as follows:

Ordinarily it will be for the party who sets up that a particular transaction is not real but benami to make out affirmatively the case put forward by

him. But where the ostensible owner has been defeated in a claim proceeding and sues to set aside the order made on the claim petition under 0.

21, R. 63, C.P. Code, the onus is on him to establish that he is the real owner of the property and it is not sufficient for him to rely merely upon the

deed which shows his ostensible title.

As the learned Subordinate Judge has failed to apply this principle of law his finding on the question of title cannot be upheld. I may point out

that there are other fundamental mistakes committed by the learned Subordinate Judge. The learned Subordinate Judge has observed that the

partition karar Ex. B-1 in the case does not contain either the mark or the thumb impression of the plaintiff. But a reference to Ex. B-1 will show

that the mark purported to be that of the mark of Thangammal finds a place therein. Whether it was really the mark of Thangammal or not will of

course be a matter for consideration by the lower appellate Court. But as I am satisfied that the learned Subordinate Judge has committed an error

of law in not appreciating the correct legal position on the question of onus of proof, his judgment has to be set aside. I am not expressing any

opinion on the merits of the case of the respective parties. These second appeals are allowed. The judgment and decree of the learned Subordinate

Judge are set aside and the Appeals Nos. 20, 87 and 136 of 1958 are remanded to the file of the Sub Court, Erode, to be heard afresh and

disposed of according to law and in the light of the observations contained in this Judgment. The appellant will be entitled to a refund of the court-

fee paid on the memorandum of appeals in all the three appeals. Costs will abide and will follow the result.