Judgement Appeal (No. 11 of 1939) from a judgment and order of the High Court (November 16, 1936) which reversed a judgment and order of the Court of the Subordinate Judge of Cocanada (September 10, 1934). In suit No. 120 of 1930 of the Subordinate Court, Cocanada, the appellant sued the respondents, as persons in possession of the estate of the late Dharma Rao, for recovery of a promissory note debt due to him by Dharma Rao. The first two respondents were the sons of Dharma Raos brother, Kasibabu; the third respondent was a married daughter of Dharma Rao, and the fourth respondent was another of his relations. The appellant had, before judgment, attached certain immovable properties as belonging to the late Dharma Rao. The first two respondents (alone concerned in this appeal) contended that they were joint with Dharma Rao, and that on his death the properties devolved on them by right of survivorship and could not be proceeded against for a simple debt of Dharma Rao. The Subordinate Judge reserved those points for decision in execution, and passed a decree on January 27, 1931, directing the respondents to pay a certain sum to the appellant " from out of the assets of the late "Chelikani Dharma Rao in their hands." The appellant sought to execute his decree by proceeding against the properties attached. On September 12, 1931, the first two respondents filed Execution Application No. 772 of 1931, which gave rise to the present appeal, in the Court of the Subordinate Judge of Cocanada praying for an order establishing their right to the properties in question and setting aside the attachment effected at the instance of the appellant. The appellant contended that Dharma Rao was a divided member so far as regards the properties in question by reason of a sale deed of March 22, 1900, whereby Kasibabu purported to sell his one-tenth interest therein to his brother Dharma Rao. The Subordinate Judge rejected the respondents application. On appeal by the respondents the High Court (Mockett and Lakshmana Rao JJ.) held that the sale deed was a nominal transaction, never meant to be effective, and that it was not acted upon ; that even if it was a real transfer it did not effect a division of status either generally or partially between Dharma Rao and Kasibabu. On appeal by the respondents the High Court (Mockett and Lakshmana Rao JJ.) held that the sale deed was a nominal transaction, never meant to be effective, and that it was not acted upon ; that even if it was a real transfer it did not effect a division of status either generally or partially between Dharma Rao and Kasibabu. In the result, they found that the respondents were joint with their uncle, and as such had a right of survivorship. They therefore allowed their application, and set aside the order of the lower Court. 1941. Feb. 6, 7, 27. J. M. Parikh and Ralph Parikh for the appellant. The effect in law of the deed of sale of March 22, 1900, was that the respondents father, Kasibabu, and Dharma Rao, the two brothers, became separate from each other in status. That would be the result whether the sale deed was a real or a sham transaction. If it were a real transaction, Dharma Rao became the owner of a one-fifth share (his own one-tenth and his brothers one-tenth), and if it were a sham transaction, Dharma Rao became the separate owner of his own one-tenth share and the owner in trust for his brother of his brothers one-tenth share. In neither case was Dharma Rao a coparcener with his brother or his nephews, the respondents, who were not born at that time. The deed of sale effected a separation in estate of the respondents father and Dharma Rao. [On the question of admissibility reference was made to s. 92 of the Indian Evidence Act (I. of 1872), and to Balkishen Das v. Legge (( 1899) L. R. 27 I. A. 58.), where it was held that oral evidence of intention is inadmissible for the purpose of construing deeds or of proving the intention of the parties.] [Sir George Rankin referred to Tyagaraja Mudaliyar v. Vedathanni (( 1935) L. R. 63 I. A. 126, 134, 137, 139.).] Amirthathammal v. Periasami Pillai (( 1909) I. L. R. 32 M. 325.) deals with the same point, but it cannot stand in view of Tyagaraja Mudaliyar v. Vedathanni (( 1935) L. R. 63 I. A. 126, 134, 137, 139.). The sale deed was put on the register and allowed to stand for more than thirty-two years, and anybody making inquiry would know that Dharma Rao was the owner of the property, and that Kasibabu had sold it to him. Length of time is a matter for consideration. It is submitted that, on the evidence, consideration is proved. Sect. 34 of the Indian Evidence Act deals with the value to be attached to accounts, and Deputy Commissioner of Bara Banki v. Munshi Ram Parshad (( 1899) L. R. 26 I. A. 254. 259 134. 137, 139.) deals with their admissibility. The most recent statement of the law as regards partition is to be found in A Hurt Venkatapathi Raju v. Dantuluri Venkatanarasimha Raju (( 1936) L. R. 63 I. A. 397, 406.). [Reference was also made to Appovier v. Rama Subba Aiyan (( 1866) 11 Moo. I. A. 75, 89-90.); Baboo Hurdey Narain Sahu v. Pundit Baboo Rooder Perkash Misser (( 1883) L. R. 11 I. A. 26, 30.) ; Balabux Ladhuram v. Rukhmabai (( 1903) L. R. 30 I. A. 130, 137.); Balkishen Das v. Ram Narain Sahu (( 1903) L. R. 30 I. A. 139.) ; Hari Bakhsh v. Babu Lal (( 1924) L. R. 51 I. A. 163.) ; and Bal Krishna v. Ram Krishna (( 1931) L. R. 58 I. A. 220, 226.).] Sir Herbert Cunliffe K.C. and P. V. Subba Row, for the first two respondents, were not called upon to argue. Mar. 18. The judgment of their Lordships was delivered by Sir George Rankin. Dharma Rao and Kasibabu were brothers, the former being older than the latter by about nineteen years. The appellant, Merla Ramanna, was a creditor of Dharma Rao in respect of a promissory note executed in 1928 for Rs. 10,000, with certain interest. The first and secnd respondents (herein called the respondents) are the sons of Kasibabu, who died in 1910. The family is governed by the Mitakshara. The third and fourth respondents do not appear, and need not be mentioned. After Dharma Raos death, in 1929, the appellant sued the respondents in the Court of the Subordinate Judge at Cocanada as being persons in possession of Dharma Raos estate, and on January 27, 1931, recovered judgment in the usual form limited to assets of Dharma Rao which had come to their hands. After Dharma Raos death, in 1929, the appellant sued the respondents in the Court of the Subordinate Judge at Cocanada as being persons in possession of Dharma Raos estate, and on January 27, 1931, recovered judgment in the usual form limited to assets of Dharma Rao which had come to their hands. Certain immovables in which Dharma Rao had had an interest were attached before judgment, and on April 22, 1932, the respondents applied to the Subordinate Judge to raise the attachment, contending that the properties attached were not liable to be taken in execution under the degree. Their case is that the£ were coparceners with their uncle in a joint Hindu family governed by the Mitakshara, and that on Dharma Raos death they became entitled by survivorship to the whole interest in the joint family property, the appellant, though a creditor of Dharma Rao, not having taken any steps in his debtors lifetime to recover his debt. The appellant, on the contrary, contends that Dharma Rao and Kasibabu had ceased so far as regards the attached properties to be undivided, and had become separate in estate by reason of a deed of sale (exhibit B), dated March 22, 1900, whereby Kasibabu purported to sell his one-tenth interest therein to his brother Dharma Rao. To this, the first answer of the respondents is that the deed was a sham deed, not intended to have any effect upon the rights of the parties, and not the expression of any agreement between them. Further, and in the alternative, the respondents contend that even if the deed of sale was intended to be operative and was entered into animo contrahendi, it did not have the effect of dividing the brothers interest in the attached properties or of bringing to an end the right of the survivor to succeed to the whole interest. This contention is based upon the circumstance that in 1900 other branches of the family were joint with the branch represented by Dharma Rao and Kasibabu, and it is said that the members of these other branches are not shown to have had notice of the deed of sale. As their Lordships do not find it necessary to examine this contention it need not be stated more particularly. As their Lordships do not find it necessary to examine this contention it need not be stated more particularly. The respondents also contend that if Dharma Rao had acquired Kasibabus one-tenth interest in addition to his own he had brought the income into the common stock so as to make the properties joint. This contention was raised by the respondents in their petition, and, though it does not seem to have been urged at the hearing before the Subordinate Judge, it was maintained before the High Court with success. Apart from exhibit B, their Lordships are satisfied that there is no ground for maintaining that Dharma Rao and Kasibabus sons had become divided in respect of the properties now in question. The learned Subordinate Judge found that the respondents had "failed to prove that exhibit B is a sham "or a nominal document," but the High Court, on appeal, thought that "the conclusion is irresistible that exhibit B, "the sale deed, was a nominal conveyance.” The learned Subordinate Judge found in favour of the appellant that exhibit B operated to divide the interests of the two brothers, and by his order of September 10, 1934, he maintained the attachment. The High Court, having found that exhibit B was not intended to be acted on, held that it did not operate a division of status as between the brothers. They also held that this would not have resulted from the deed even if it had been a real and not a sham transaction ; and that, if a division of interest had taken place by virtue of the deed, the manner in which the income had been treated by Dharma Rao restored the properties comprised therein to the condition of joint family property. The High Court, by order dated November 16, 1936, accordingly held that the appellant was not entitled to have recourse to the attached properties in execu tion of his decree, and this is the decision now complained of. There is a good deal of evidence upon the question whether the deed of sale (exhibit B) was intended by the parties thereto as an agreement between them or was executed merely to bring into existence a document which might, contrary to the truth, appear to have taken away from Kasibabu his interest in the properties comprised therein. There is a good deal of evidence upon the question whether the deed of sale (exhibit B) was intended by the parties thereto as an agreement between them or was executed merely to bring into existence a document which might, contrary to the truth, appear to have taken away from Kasibabu his interest in the properties comprised therein. Upon a full consideration of this evidence, their Lordships are of opinion that the view taken by Mockett and Lakshmana Rao JJ. in the High Court has the greater reason, and should prevail. In 1900 Kasibabu had just attained the age of eighteen years, and Dharma Rao was thirty-seven. Of a total alleged consideration of Rs. 12,500, only Rs. 650 is said to have been paid in cash to Kasibabu at the time, the rest being accounted for in the deed by recitals about debts of the joint family, of the parties own branch of the family and of Kasibabu personally, and by a statement that Rs. 1000 had been paid as earnest money. Though accounts kept by Dharma Rao over many years are in evidence, there is no satisfactory proof of the existence of the alleged debts of their father, and none at all that these were, in 1900, pressing, or that payments were made by Dharma Rao in discharge of them. It is reasonably clear from these accounts that they draw no distinction between properties sold to Dharma Rao by exhibit B and other properties in which Kasibabu retained his original interest as a coparcener. He and his family are shown to have been provided for out of the income of the family as a whole down to 1908, when the four branches became divided in status, and thereafter out of the income of the branch. It is not easy to account for such a transaction as the deed discloses save upon the ground that Kasibabu was thought to be foolish and extravagant, and given to bad habits likely to lead to his dissipating his property. There is direct evidence contradicting one of the recitals as to his having taken a loan during his minority, and there is evidence of statements made by Dharma Rao disclaiming that by the deed he had become entitled to his brothers share. In 1912, at the making of the record of rights, no such effect appears to have been given to the deed. In 1912, at the making of the record of rights, no such effect appears to have been given to the deed. There was another deed, in 1910, whereby Kasibabu purported to divest himself of other properties in favour of a nominee for Dharma Rao, and there is also to be considered the fact that Dharma Rao, in 1927, made an ineffective, because un-witnessed, will purporting to leave all his properties to the respondents. In the present case the oral evidence, as to which the courts in India have differed, must be judged mainly upon the probabilities arising out of the proved documents and the admitted facts. Their Lordships think it sufficient to say that the careful and detailed examination of the evidence given by Lakshmana Rao J. in his judgment appears to them to be convincing, and that they agree with the High Court in regarding the deed of sale as being merely M nominal ", in the sense that it was not intended to have effect upon the right of the parties inter se. Even so, and upon the footing that exhibit B is only a sham, and not a real transaction, the appellant has contended before the Board that it would in law divide the interests of the parties thereto so as to put an end to the jus accrescendi, or right of survivorship, between coparceners. The learned judges of the High Court do not appear to have contemplated that a document which was not the expression of an agreement at all, and not intended to have effect upon the rights of the parties, could have the important effect of changing their undivided status. The repeated references in exhibit B to the one-tenth share of each of the two brothers have been emphasized in argument for the appellant, but, while they do not seek in any way to qualify what was said in Appoviers case (( 1866) 11 Moo. I. A. 75.), their Lordships are unable to hold that coparceners who intend to remain joint and undivided become divided contrary to their intention because, for purposes of pretence, they refer to their interests as represented by a fractional share. I. A. 75.), their Lordships are unable to hold that coparceners who intend to remain joint and undivided become divided contrary to their intention because, for purposes of pretence, they refer to their interests as represented by a fractional share. Where a third party has been induced to act upon the footing of such a document as exhibit B, very different questions may arise by reason of estoppel or otherwise, but the question in the present case is limited to the parties themselves and to the immediate effect of the deed. Even a member of a Mitakshara family may sometimes be forgiven for speaking of his " one-third share " instead of using the more accurate but more elaborate expression " the share which, if a partition "were to take place to-day, would be one third." But in the present case the reference to the shares as "one-tenth " shares is part of the pretence of sale. When once the conclusion is reached that exhibit B is not the expression of any intention or agreement to transfer Kasibabus interest to Dharma Rao, propriety or impropriety of language matters little, since the deed does not warrant any inference of a previous or independent agreement to hold in divided shares. Their Lordships are of opinion that it is not shown as regards the properties now in question that Dharma Rao had before his death ceased to be joint with Kasibabus sons. They will humbly advise His Majesty that this appeal should be dismissed. The appellant will pay the costs to the first and second respondents.