JUDGMENT : The civil miscellaneous second appeal is directed against the Judgment and Decree, dated 30.01.2008, passed in C.M.A.No.7 of 2004, on the file of the Principal Subordinate Court, Dindigul, confirming the fair and decreetal orders, dated 21.06.2001, passed in E.A.No.229 of 1999 in E.P.No.477 of 1998 in O.S.No.451 of 1992, on the file of the District Munsif Court, Dindigul. 2. E.A.No.229 of 1999 has been preferred by the appellant, under Order XXI Rule 58 and Section 151 of the Code of Civil Procedure. 2. E.A.No.229 of 1999 has been preferred by the appellant, under Order XXI Rule 58 and Section 151 of the Code of Civil Procedure. The case of the appellant, in brief, is that the suit property belonged to the second respondent, by way of a registered sale deed, dated 09.06.1987 and the second respondent, according to the appellant, has been obtaining loans from the appellant promising to repay the same with interest and accordingly, the second respondent was liable to pay a sum of Rs.35,000/- to the appellant as on 02.07.1988 towards the abovesaid handloans and agreed to handover the original title deed of the property belonging to her as a security for the due repayment of the amount and accordingly, on 09.06.1987, she had handed over the original title deed to the appellant with an intention to create an equitable mortgage and subsequently, on the same date executed a letter acknowledging the said handing over the original title deed to the appellant and agreed that the property comprised in the title deed shall stand as a security for any further borrowing also and it is further stated that on 29.03.1989, the second respondent borrowed a sum of Rs.30,000/- from the appellant and executed a promissory note in evidence thereof and also subsequently, gave a letter, in the form of a document, agreeing that the document of title already handed over to the appellant would continue to be as the security for the said loan also and the said letter had been executed on 21.03.1992 and the second respondent made a payment of Rs.250/- towards interest for each debt and made a separate endorsement on the reverse side of the documents, however, the second respondent could not pay any further amount and thereby, agreed to sell the suit property to the appellant for the abovesaid borrowed sum and alienated the suit property to the appellant on 04.01.1993, by way of a registered sale deed and delivered the possession of the same to the appellant and thus, the appellant is in the possession and enjoyment of the suit property and on 04.02.1999, the appellant found a sale proclamation affixed in the door of her house and on verification, she came to know that the first respondent has obtained a money decree, against the second respondent, in O.S.No.451 of 1992, on the file of the District Munsif Court, Dindigul, and obtained an order of attachment before Judgment in I.A.No.532 of 1992 on 22.04.1992 and has brought the suit property for sale and inasmuch as the suit property had been equitably mortgaged in favour of the appellant as above noted, the order of attachment, dated 22.04.1992, made in I.A.No.532 of 1992 would not prevail over the appellant's right and entitlement in respect of the suit property and the appellant has a preferential right over the first respondent's order of attachment and accordingly, seeking to set aside the order of attachment abovestated, according to the appellant, she has been necessitated to lay the abovesaid application. 3. The first respondent resisted the appellant's abovesaid application contending that the appellant had presented the application only at the behest of the second respondent to defeat and delay the debt payable to the first respondent. The alleged sale deed, dated 04.01.1993, in favour of the appellant is not a valid one and on the abovesaid ground alone, the appellant's application is liable to be dismissed. The suit property was attached in the year 1992 as per the order passed in I.A.No.532 of 1992 and therefore, the sale deed having come into existence after the date of the attachment is invalid in the eyes of law and the appellant cannot claim any title to the suit property under the invalid document. The allegation that the second respondent was in the habit of borrowing loans from the appellant and that she was in debt to the extent of Rs.35,000/- as on 02.07.1988 to the appellant is false and it is further false to state that the second respondent has created a security in favour of the appellant and in connection with the same, had handed over the original title deed to the appellant on 09.06.1987 and executed a letter on the same date acknowledging the handing over the original title deed to the appellant and all the abovesaid allegations are made and invented by the appellant in collusion with the second respondent and it is further false to state that the second respondent has borrowed Rs.30,000/- from the appellant and again gave a consent letter to hold the suit property as a security for the said loan also and the appellant is not entitled to any of the reliefs prayed for and the application is liable to be dismissed. 4. In support of the appellant's case, P.Ws.1 and 2 were examined and Exs.P1 to P7 were marked and on the side of the respondents, Ex.R1 was marked, however, no witness was examined. 5. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the Courts below were pleased to dismiss the application preferred by the appellant. Impugning the same, the present civil miscellaneous second appeal has been preferred. 6. 5. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the Courts below were pleased to dismiss the application preferred by the appellant. Impugning the same, the present civil miscellaneous second appeal has been preferred. 6. The property involved in the matter is found to have been attached on 22.04.1992 as per the order passed in I.A.No.532 of 1992 in O.S.No.451 of 1992 and the abovesaid position could be gathered from the case projected by the respective parties as well as the document marked as Ex.R1. Seeking to set aside the abovesaid order of attachment, the appellant has come forward with the application, under Order XXI Rule 58 of the Code of Civil Procedure, on the footing that, briefly stated, the second respondent, in connection with the various loans obtained from the appellant, had handed over the title deed concerning the suit property to the appellant and also gave a letter of acknowledgment depositing the title deed concerning the suit property to the appellant with an intention of creating an equitable mortgage in respect of the property in favour of the appellant on 02.07.1988 as well as extended the abovesaid deposit of title deed as a security in respect of the another loan obtained by her from the appellant on 29.03.1989 and also executed another letter, on the same lines, on the same date and the abovesaid letters had been marked as Exs.P2 and P3 and also further stated as the second respondent was unable to discharge the debts, she had alienated the property in favour of the appellant on 04.01.1993, which document has come to be marked as Ex.P7 and therefore, it is stated by the appellant that inasmuch as Ex.P7 – sale deed had been executed by the second respondent in favour of the appellant in recognition of the pre-existing right created in favour of the appellant, by way of Exs.P2 and P3, according to the appellant, even though Ex.P7 – sale deed had come to be executed after the order of attachment made in respect of the property, by way of the order passed in I.A.No.532 of 1992, still, as she has been given the preferential right in respect of the property involved, it is her case that the order of attachment is liable to be raised. 7. 7. The first respondent has strongly repudiated the case of the appellant and contended that the sale deed, dated 04.01.1993 is an invalid document and also disputed the factum of the various loans said to have been incurred by the second respondent from the appellant and also disputed the factum of the execution of the letters of acknowledgment by the second respondent in favour of the appellant equitably mortgaging the property involved by the deposit of title deed as putforth by the appellant and contended that only to avoid the payment of money due to the first respondent, the appellant has come forward with the false case at the behest of the second respondent and hence, contended that the appellant is not entitled to raise the order of attachment effected in respect of the subject property, pursuant to the order passed in I.A.No.532 of 1992 in O.S.No.451 of 1992. 8. From the materials placed on record, it is found that the property involved in the matter belonged to the second respondent. For the amount due to the first respondent from the second respondent, it is found that the first respondent has laid the suit against the second respondent in O.S.No.451 of 1992. In the abovesaid suit, the first respondent had preferred I.A.No.532 of 1992 seeking attachment before Judgment of the property belonging to the second respondent and by way of the order, dated 22.04.1992, passed in I.A.No.532 of 1992, the property belonging to the second respondent had come to be attached. Thereafter, the appellant has come forward with the present application, on the footing that even prior to the order of attachment abovestated, the second respondent had created an equitable mortgage by the deposit of the title deed in respect of the property involved in favour of the appellant by way of the documents marked as Exs.P2 and P3 and accordingly, the appellant having a pre-existing right in respect of the property involved and though the appellant had obtained the sale deed in respect of the property subsequently, on 04.01.1993, as the abovesaid sale deed had been executed in recognition of her pre-existing right by the second respondent in favour of the appellant, according to the appellant, she has a precedence over the property and accordingly, sought for raising of the order of attachment. 9. 9. As abovenoted, the first respondent, in toto, repudiated the case projected by the appellant and in fact, disputed the truth and validity of the alleged letters of acknowledgment executed by the second respondent in favour of the appellant as regards the creation of the equitable mortgage of the property involved and further contended that the sale deed, dated 04.01.1993, itself is created by the appellant in collusion with the second respondent with a view to defeat and defraud the first respondent's lawful claim and hence, contended that the appellant is not entitled to raise the order of attachment. 10. In the light of the abovesaid defence putforth by the first respondent, as rightly found by the Courts below, it is for the appellant to establish that the second respondent had in fact borrowed various loans from her and in the evidence thereof, with a view to create an equitable mortgage by depositing the title deed, had mortgaged the property in her favour as putforth by the appellant. However, considering the evidence placed on record, particularly, on the part of the appellant, it is found that the appellant has miserably failed to establish her abovesaid case as determined by the Courts below. However, considering the evidence placed on record, particularly, on the part of the appellant, it is found that the appellant has miserably failed to establish her abovesaid case as determined by the Courts below. In this connection, the appellant examined as P.W.1, during the course of her cross-examination, has admitted that she cannot state as to on what dates, the second respondent had borrowed loans from her and according to her, at the time of every borrowal, the second respondent used to retrieve the old promissory note from her and execute a fresh promissory note in her favour and further admitted that she has not maintained any account in respect of the loans advanced to the second respondent and she has admitted that though she is an income tax assessee, has not brought into record the loans advanced by her in favour of the second respondent in her income tax returns and particularly, admitted that she has not apprised the advancement of Rs.35,000/- in favour of the second respondent in the income tax returns and also averred that she cannot state as to on what date, the second respondent had deposited the title deed and also pleaded ignorance as to whether the second respondent had entrusted the original title deed on the date of the execution of the acknowledgment letter and further, also admitted that with reference to all the abovesaid transactions, it is only her brother Ramachandran who had been looking after the same and thus, from the evidence of the appellant, it is seen that she is not personally aware of the alleged monetary transactions dealt with by her vis-a-vis the second respondent and it is only her brother, who is in the know of things with reference to the same. If really the appellant had given various loans to the second respondent on promissory notes executed in her favour, in evidence thereof, as rightly determined by the Courts below, the appellant, admitted to be an income tax assessee, would have disclosed the same in her income tax returns or would have maintained a separate account with reference to her money matters. On the other hand, as admitted by the appellant herself, she has not brought home the abovesaid transactions with the second respondent in her income tax returns and also not maintained any account with reference to the same and when she has pleaded total ignorance of the abovesaid transactions and unable to answer clearly as regards the same and has admitted that it is only her brother who is in the know of things qua the same, in such view of the matter, as determined by the Courts below, based on the abovesaid evidence of the appellant, it cannot be held that the second respondent, in fact, had borrowed various loans from the appellant and executed the documents in favour of the appellant as projected by the appellant. The appellant mainly relies upon the letters of acknowledgment executed by the second respondent in her favour marked as Exs.P2 and P3. As regards the Exs.P2 and P3, the appellant, during the course of her cross-examination, has admitted that she does not know who has attested the abovesaid documents marked as Exs.P2 and P3 and furthermore, the appellant having not endeavoured to examine the attestors of the abovesaid documents or in fact, the executant of the abovesaid documents, namely, the second respondent, in support of her case and when as abovenoted, she is unable to come out with a clear picture of the alleged loan transactions, which she had with the second respondent, as rightly determined by the Courts below, on the basis of the abovesaid unreliable and unacceptable evidence of P.W.1/the appellant and the documents projected by her, we cannot safely accede to the case of the appellant. 11. 11. Furthermore, her brother Ramachandran, who has been examined as P.W.2, has also not supported the case of the appellant and P.W.2, during the course of his cross-examination, has admitted that he does not know as to the transactions, which the appellant had with the second respondent on various dates and in such view of the matter, when P.W.2 is also totally ignorant of the monetary transactions of the appellant with the second respondent and when the appellant has not endeavoured to examine the attestors of Ex.P2, in particular, and though P.W.2 has attested the document marked as Ex.P3, considering the fact that P.W.2, being the brother of the appellant and when P.W.2 is totally unaware of the alleged money transactions between the appellant and the second respondent and particularly, when a strong challenge is made to the abovesaid documents projected by the appellant as well as her case for raising the order of attachment by the first respondent in toto, in such view of the matter, to establish the genuineness of Exs.P2 and P3, the appellant should have endeavoured to summon the second respondent as well as the other independent persons associated with the abovesaid documents and examined them to establish the truth and validity of the abovesaid documents in support of her case. The appellant having failed to establish the truth and validity of the abovesaid documents, in such view of the matter, the Courts below are found to be totally justified in rejecting the evidence of P.Ws.1 and 2, particularly, noting that the appellant had failed to examine any independent witness in support of her case, who is associated with the abovesaid documents. 12. 12. The counsel for the appellant, in support of his contentions, placed reliance upon Section 48 of the Transfer of Property Act and contended that inasmuch as the appellant has a pre-existing right in respect of the property involved by way of Exs.P2 and P3 and only in recognition of the abovesaid preexisting right, the sale deed, dated 04.01.1993, had come into existence, even though the abovesaid sale deed is effected after the order of attachment, still, she would have priority over the property involved and hence, entitled to raise the order of attachment effected in respect of the subject property, pursuant to the order passed in I.A.No.532 of 1992 in O.S.No.451 of 1992 and in this connection, he placed reliance upon the decisions in M.G.Natesa Chettiar vs. S.Subbunarayana Ayyar and others, reported in AIR 1946 (Mad) 91 and Bishan Singh and others vs. Khazan Singh and another, reported in AIR SC 838. However, as above discussed, when the appellant has failed to establish the truth and validity of Exs.P2 and P3 and particularly, when the second respondent has conveniently remained ex parte and despite the same, the appellant, seeking to derive title to the property only through the second respondent, should have endeavoured to examine the second respondent and other independent persons associated with the abovesaid documents to establish her case, particularly, in the light of the strong resistance projected by the first respondent. In such view of the matter, it is found that the claim of pre-existing right in respect of the property involved by the appellant on the strength of Exs.P2 and P3 cannot be accepted and upheld and the same had been rightly discountenanced by the Courts below. 13. In the light of the above discussions, no interference is called for in the dismissal of the appellant's application by the Courts below and no substantial question of law is found to be involved in this civil miscellaneous second appeal. 14. Resultantly, the civil miscellaneous second appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.