Peria Krishnasami Naik and Another vs Aiyappa Naik and Others

Sadasiva Aiyar, J.—The learned District Judge finds (a) that no consideration passed for the sale-deed relied on by the plaintiffs : (b) that

the price mentioned in the sale-deed is not the proper price of the property sold : and (c) that no transfer of possession passed under the sale-deed

and that the vendor continued in possession. We cannot interfere with these finding of fact in second appeal, though a few of the reasons given for

the findings may not be satisfactory. Than the next fact the learned District Judge infers from the above three facts is that the sale-deed in the

plaintiffs'' favour was a sham and a colourable transaction. I do not think that we could interfere even with this inferential finding, though the learned

District Judge put it too strongly when he directed himself that that is the "" inevitable inference "" from these facts. Even where similar facts existed,

that inference was held not to follow in Ranga Ayyar v. Srinivasa Ayyangar 21 M. 56. because the alienees in that case were the wife and daughter

of the alienor and there were other "" previous circumstances "" which indicated that a gift in the guise of a conveyance was intended by the alienor.

But where the alienee is not such a near relation as a wife, or a daughter and where no such previous circumstances are proved, the inference that

it is a sham, transaction can, in my opinion, be legally drawn, especially as the District Judge refers to the evidence on the defendants'' side (see

defence witness No. 1) showing that Exhibit A was executed with an ulterior purpose.

Then it is argued that as the 2nd defendant did not appeal from the Munsif''s decree so far as it directed him to be ejected, the District Judge

ought not to have dismissed the whole suit, but ought to have only modified the District Munsif''s decree by dismissing the plaintiffs'' claim as

against the 3rd defendant alone. Whether the Distinct Judge had the power (on his finding that the plaintiffs had no title to the plaint house) to

reverse wholly the District Munsif''s decree so that the reversal could enure in favour of the 2nd defendant also is, in other words, the question for

consideration. It is argued that Order XLI, Rule 4, which gives a power to the Appellate Court to so reverse a decree in favour of a person who

has not appealed, does not apply to the facts of this case. I am not sure that it does not so apply : but whether Order XLI, Rule 4, applies or not, I

am clear that the new provision enacted in Order XLI, Rule 33, gives full powers to the Appellate Court to pass the decree which should have

been passed by the Court of first instance on the findings arrived at by the Appellate Court and in favour of any of the parties to the suit, whether

such party has filed an appeal or not, or even whether he is a party to the appeal or not. There is no reason whatever to restrict the powers so

plainly given by that Rule 33 by a reference to the history of the reasons which led to the enacting of that provision or by the single illustration

affixed to that rule.

I would, therefore, dismiss the second appeal with costs.

Seshagiri Aiyar, J.

I do not think the judgment of the District Munsif can be said to proceed on a ground common to the defendants Nos. 2 and 3, when the 2nd

defendant has not appeared in the Court below to defend his possession. There was a decree directing the defendants Nos. 2 and 3 to give joint

possession. The 3rd defendant alone has appealed against that decree. I must, therefore, hold that Order XLI, Rule 4 of the Code of Civil

Procedure, 1903, does not apply to this ease. Still all the parties are before the Court, and the finding in second appeal, which we accept, is that

the plaintiffs'' sale-deed is a sham transaction.

Rule 33, Order XLI of the Code of Civil Procedure, 1938, is intended to cover oases where a party puts forward an untrue claim. Allowing the

plaintiffs to get possession of the 2nd defendant''s share will be to give a decree on a false claim. It is on this ground that I agree in dismissing the

second appeal with costs.