Raman Nadar v. Bhoothalingam — 1950 DIGILAW 72 (KER)

Judgment :- 1. This is a second appeal by the plaintiff from the judgment and decree of the District Judge of Nagercoil in A.S.148 of 1121 dismissing the suit in reversal of the decree of the Additional Munsiff of Nagercoil in O.S. 290 of 1117. 2. The facts so far as they are necessary for the purpose of this appeal may be stated thus. The plaint property originally belonged to one Arumughom Nadar. He executed a sale of the property to his wife Annalekshmi Nadachi on 20.2.1095. Annalekshmi Nadachi sold the property to one Palanimuthu under Ext. A sale deed dated 8.7.1098. The latter sold the property to Iyenkannu Nadar Ext. B dated 22.10.1099 from whom plaintiff purchased under Ext. C sale deed dated 8.5.1111. According to the plaintiff possession followed Ext. A, B and C sale deeds and he was in possession of the property under Ext. C. directly and through his lessees. One Daivana obtained a money decree against Annalekshmi in O.S. 1029 of 1100 and in execution attached the plaint property and purchased it in court auction and sought delivery of possession of the property. Ext XV dated 24.7.1101 is the delivery list. The plaintiff's case is that Ext. XV was but a paper delivery and that the auction purchaser did not get actual possession. Immediately after Ext. XV dispute regarding possession of the property arose between the auction purchaser in O.S. 1029 of 1100 and the vendee of the property which resulted in several criminal cases between the parties. In the meantime 1st defendant purchased the property from Daivanna's daughter Nagaramma on 11.11.1110. Ext. VIII is the sale deed in his favour. The dispute regarding possession ultimately terminated in a proceeding under S. 143 of the Criminal Procedure Code. As a result of the enquiry 1st defendant's possession was declared. The order of the First Class Magistrate was sought to be revised in revision before the High Court without any success. The plaintiff has therefore filed the present suit for declaration of title to and recovery of possession of the property. The 1st defendant contended that Ext. A is a sham and benami document executed with a view to defeat and delay the creditors of Annalekshmi, that Exts. B and C also stood on the same footing and that no possession passed under these documents. The 1st defendant contended that Ext. A is a sham and benami document executed with a view to defeat and delay the creditors of Annalekshmi, that Exts. B and C also stood on the same footing and that no possession passed under these documents. According to him the property was validly sold in execution of the decree in O.S. 1029 of 1100 and delivered over to the decree-holder-auction purchaser. The order of the First Class Magistrate was therefore contended to be correct. It was also pleaded that after the delivery of the property in execution of the decree in O.S. 1029 of 1100 Iyenkannu Nadar vendee under Ext. B applied for redelivery of the property and that the suit brought after one year from the date of that order is barred under Art.8(2) of the Limitation Act. The title of the plaintiff and his predecessors-in-interest was alleged to be barred by adverse possession also. 3. The learned Munsiff repelled the contentions of the 1st defendant and decreed the suit. The learned judge held that Exts. A, B and C are sham or benami documents and that title to and possession of the property passed under the court sale and delivery in O.S. 1029 of 1100. Therefore in reversal of the trial court he dismissed the suit with costs. 4. The case of the 1st defendant as set up in paragraph 4 of his written statement is that Annalekshmi had large debts and that the sale deed in favour of Palanimuthu was executed fraudulently and benami for the purpose of defeating her creditors. The law draws a clear distinction between a fraudulent transfer under S. 53 of the Transfer of Property Act and fictitious or benami transfer. "If a transaction is fictitious it was never intended to exist. If, however, a transaction is fraudulent it was intended exist though its object was to defeat the legal rights of other people." (Vide A.I.R. 1944 All. 214). The written statement of the 1st defendant is not happily drafted as to indicate clearly the exact line of defence that he has set up. If, however, a transaction is fraudulent it was intended exist though its object was to defeat the legal rights of other people." (Vide A.I.R. 1944 All. 214). The written statement of the 1st defendant is not happily drafted as to indicate clearly the exact line of defence that he has set up. The trial court has dealt with the case as if the plea is essentially one of fraudulent transfer to defeat creditors, while the approach of the lower appellate court is mainly on the basis that the plea of the defendant is that of fictitious or benami transfer though of course the lower appellate court makes it clear in paragraph 10 of its judgment that even on the question as to whether Exts. A and B are fraudulent transfers or not, if any finding was necessary he would have differed from the trial court and held that the transfer is fraudulent. 5. It is however clear that whether the question be one of sham or benami transaction or of fraudulent transfer the burden of proof is on the 1st defendant who has set up the plea. In the former case even a greater burden is put on the 1st defendant for in the case of a fraudulent transfer under S. 53 of the Transfer of Property Act, on the 1st defendant proving an intention to defraud, the burden shifts to the plaintiff to show that the transfer was made in good faith and for consideration. (Vide 29 T.L.J. 787 and 16 T.L.J. 453 F.B.) 6. The foundation of the plea of the 1st defendant that Ext. A is a sham or benami transaction is that Ext. A was executed with a view to screen the property from the creditors of Annalekshmi. This is clear from paragraphs 4 and 8 of the 1st defendant's written statement. Ext. A was executed on 8.7.1098 nearly two years before Daivana obtained the decree in O.S. 1029 of 1100. There is absolutely no evidence in the case to indicate when the debt which was the basis of the suit O.S. 1029 of 1100 arose or what the amount was or what exactly was the nature of the debt. The 1st defendant has produced a large number of documents in the case and it is surprising that he should not have produced the decree in O.S. 1020 of 1100. The 1st defendant has produced a large number of documents in the case and it is surprising that he should not have produced the decree in O.S. 1020 of 1100. There is no evidence in the case that Annalakshmi had any other creditors. The file register in O.S. 1633 of 1097 produced by the 1st defendant in the lower court does not appear to have been admitted in evidence. Moreover it is in evidence that Annalekshmi had another property at the time of execution of Ext. A. 1st defendant admits this. In these circumstances the evidence in this case does not warrant the conclusion that Ext. A was executed with a view to screen the property from the creditors of Annalekshmi. 7. Reliance was placed on Exts. XII and XIII to show that Ext. A in favour of Palanimuthu must have been a benami document. Annalekshmi acquired the plaint and another property under Ext. 32 sale deed from her husband Arumughom Nadar on 20.2.1095. On the same date Arumughom Nadar appears to have executed an assignment of an hypothecation right in favour of his wife. This was assigned to Palanimuthu and he sued on the hypothecation bond. The creditors of Arumughom Nadar contested the suit on the ground that assignments in question were fraudulent and sham transaction. It is to be noted that the case of the defendants was that the assignments were executed with a view to screen the property from the creditors of Arumughom Nadar. This was upheld. The case here is that Ext. A was executed by Annalekshmi to screen the property from her creditors. There is no case for the 1st defendant that Ext. XXXIII or Ext. A was executed with a view to screen the property from the creditors of Arumughom Nadar. In fact in this case both the 1st defendant and the plaintiff proceeded on the basis that a valid title passed to Annalekshmi under Ext. XXXII sale deed. As already sated the case of the 1st defendant is that Ext. A was executed for shielding the property from the creditors of Annalekshmi. Ext. XII and XIII will be of no avail to the 1st defendant to establish this case. Instead of confining to the pleadings in the case in deciding the question in controversy in the suit we are afraid that the learned judge has allowed himself to be sidetracked. A was executed for shielding the property from the creditors of Annalekshmi. Ext. XII and XIII will be of no avail to the 1st defendant to establish this case. Instead of confining to the pleadings in the case in deciding the question in controversy in the suit we are afraid that the learned judge has allowed himself to be sidetracked. 1st defendant has not let in any evidence to indicate that Exts. A, B and C are not supported by consideration. Even Palanimuthu Nadar vendee under Ext. A or Iyenkannu Nadar vendee under Ext. B who are admitted to be alive have not been examined. The person who impugnes the apparent character of a deed must establish by clear evidence that it is not real but is only a sham. The presumption is that the transaction is real until the contrary is proved. 8. Ext. A states that the sale deed in favour of Annalekshmi and the 'thelivucheettu' of the property are handed over to the vendee. These documents are produced in the case by the 1st defendant. It is contended that if as a matter of fact Ext. A is a real transaction these documents ought to have been handed over to the vendee and can never be in the possession of the first defendant. There is no knowing how 1st defendant came into possession of these documents. His evidence does not throw any light on this matter. The plaintiff's advocate suggests that 1st defendant in collusion with Iyenkannu must have obtained the document from him after he sold the plaint property to the plaintiff. However in the absence of any evidence as to how the 1st defendant came by these documents we are unable to give any weight to his possession of the documents in relation to the question of reality of Exts. A, B or C transactions. 9. There is nothing to show that possession did not pass under Exts. A and B. Exts. H is a lease deed executed by Iyenkannu Nadar in favour of one Ponniah as early as 10.10.1100, Ext. D dated 29.3.1111 is another lease deed executed by Iyenkannu Nadar in favour of one Subramania Nadar. Though Ext. D was executed at a time when there was dispute regarding possession between the 1st defendant's vendors and the Iyenkannu Nadar at the time when Exts. D dated 29.3.1111 is another lease deed executed by Iyenkannu Nadar in favour of one Subramania Nadar. Though Ext. D was executed at a time when there was dispute regarding possession between the 1st defendant's vendors and the Iyenkannu Nadar at the time when Exts. A, B and H were executed there could possibly be no difficulty in the vendees or their lessees in getting possession of the property. The probabilities are that possession followed Ext. A, B and H. It is however argued that Ext. XV delivery list shows that Annalekshmi and her daughter were living in the property at the time of the delivery. It is in evidence that the lessee under Ext. H was the son-in-law of Annalekshmi. There is therefore nothing strange that the lessee's wife and mother-in-law were residing in the property. The plaintiff as P.W.1 swears that he and before him the vendees under Exts. A and B and the lessee under Ext. H obtained possession of the property. The circumstances of the case indicate this version to be true. 10. The ordinary presumption of law is that the person in whose name a conveyance stands is the beneficial owner. First defendant has failed to establish by any positive evidence that Exts. A to C are benami or sham documents created for the purpose of screening the property from the creditors of Annalekshmi. Ext. XII and Ext. XIII and the possession of Ext. XXXIII and Ext. XXXI by the 1st defendant may be at best be indicative of certain circumstances of suspicion. "But on matters of this description it is essential to take care that the decision of the court rests not upon suspicion but upon legal grounds established by legal testimony". (Vide XI Moore's Indian Appeals 28 P. 44). 11. Even from the point of view of an alienation in fraud of creditors there is no evidence in the case that leads to the inference that Exts. A to C were executed with any fraudulent intention of defeating or delaying the creditors of Annalekshmi. We agree with the findings of the learned Munsiff in regard to this matter. We are of the view that the evidence in the case does not establish that Exts. A to C were executed with any fraudulent intention of defeating or delaying the creditors of Annalekshmi. We agree with the findings of the learned Munsiff in regard to this matter. We are of the view that the evidence in the case does not establish that Exts. A to C are sham or benami documents or that they are fraudulent transfers executed with the intention of defeating or delaying the creditors of Annalekshmi as contended for by the 1st defendant. 12. The 1st defendant contends that his predecessors-in-interest got possession of the property under Ext. XV delivery list. But immediately after Ext. XV delivery dispute regarding possession arose between the two rival claimants. Ext. T petition was filed by Iyenkannu Nadar and his lessee asserting that they were in possession of the property and praying that Ext. XV may be set aside and the property redelivered in case it is found that possession has been delivered over. However this petition does not appear to have been pressed and therefore it was dismissed. From this the learned judge thinks that Iyenkannu Nadar the predecessor in interest of the plaintiff is precluded after the expiry of one year from impeaching that order or filing a fresh suit for the purpose of establishing title to or possession of the property. We do not think that the view of the leaned judge is correct. It is clear that there has not been any investigation by the court on Ext. T application. The applicant stated that they did not press the application and therefore the court dismissed it. An order cannot be said to have been made against any party within the meaning of 0.21 R. 100 of the Travancore Civil Procedure Code unless it had been made after investigation into the matter. This position is not seriously challenged by the learned Advocate for the respondent. Therefore an action by the plaintiff or his predecessor-in-interest is not barred by the one year's rule under Art.8(2) of the Limitation Act. 13. The dispute between the parties regarding possession continued with but little interruption right up to the date of the proceedings under S. 143 Criminal Procedure Code. Several criminal cases were filed against the plaintiff his predecessors-in-interest and their lessees and though some of them ended in conviction in the lower court invariably the convictions were quashed by the High Court. The dispute between the parties regarding possession continued with but little interruption right up to the date of the proceedings under S. 143 Criminal Procedure Code. Several criminal cases were filed against the plaintiff his predecessors-in-interest and their lessees and though some of them ended in conviction in the lower court invariably the convictions were quashed by the High Court. Each party appears to have claimed possession to himself. However from Ext. P petition dated 8.3.1106 filed byPuliyudayar the agent of Daivana the decree-holder auction purchaser in file No. 524 of 1101, it is clear that Iyenkannu Nadar and his lessees were in possession of the property. Puliyudayar moved the court for putting him into possession of the property on the ground that possession was obtained by the use of criminal force. The prayer in Ext. P petition was not granted. It also appears that the conviction entered was set aside by the High Court. This being the case it cannot be said that Iyenkannu Nadar or his lessees had no possession of the property. At any rate it is abundantly clear that they were in possession of the property within 12 years of the date of the present suit and that 1st defendant has not perfected any title to the property by adverse possession. 14. We are of the view that the plaintiff has obtained a vaid title to the property and is entitled to possession thereof. Therefore in reversal of the decree of the lower appellate court we restore that of the Munsiff and allow the appeal with costs in both the courts. Appeal allowed.