JOHN Vs. CHERIAN

JUDGEMENT

(1.) THIS is an appeal by the plaintiff whose suit for recovery of plaint items 1 and 3 and the mortgage amount charged on item No.2 has been dismissed by the court below.The plaintiff got suit items Nos.1 and 3 and the mortgage right in item No.2 in partition of his father 's properties in 1109 M.E.On 30 -3 -1114 he executed a sale deed,Ext.I,for item No.1 for Rs.2,000/ - to the defendant.On 6 -11 -1114 he assigned the mortgage on item No.2 for Rs.500/ - to the defendant himself as per Ext.B;and on 28 -2 -1115 sold as per Ext.C suit item No.3,along with other properties,to P.W.2 who assigned item No.3 by Ext.IV to the defendant on 25 -8 -1116 for Rs.500/ -.According to the plaintiff,he resolved in Chingom 1114 to join the war service and in view of the risk involved therein executed bogus conveyances of all his properties in favour of the defendant,his brother -in -law and P.W.2,the brother so that if anything untoward happened to him they might take respective properties for themselves but if he returned safe,as he did in 1940,they should return the properties to him.As the defendant did not surrender the properties to the plaintiff on demand,the suit became necessary for their recovery.As the mortgage in suit item No.2 had in the meanwhile been released by the defendant in favour of the mortgagor,the prayer is for recovery of the amount thus received by the 2nd defendant with interest and of possession of suit items Nos.1 and 3.The defence asserted the genuineness and validity of the conveyance concerned.The District Judge in the first instance allowed the suit as regards items Nos.1 and 3 but dismissed the same in regard to the mortgage amount realised by the defendant.On appeal,the Travancore -Cochin High Court set aside the decree and remanded the suit for a fresh disposal giving liberty to the parties to amend their pleadings.Accordingly the plaintiff amended the plaint averring therein that the impugned alienations were executed with a view also to defeat the City Bank Ltd.( In Liquidation ),to which the plaintiff was indebted largely and the defendant filed a fresh written statement reasserting his title under the impugned conveyances.Both sides tendered additional evidence.The Additional District Judge dismissed the suit in its entirety.Hence this appeal.

(2.) ACCORDING to the original plaint,the impugned alienations Exts.I,B and C,were sham or colourable documents unsupported by consideration and intended to take effect only if the plaintiff met with his end in the war service.The plaintiff has admitted,as P.W.1,that the suit properties were being cultivated by his brother and its proceeds delivered to the defendant.Referring to suit item No.1 he deposed: ...[VERNACULAR TEXT COMITTED]... Though the plaintiff asserts that the proceeds were being paid to the defendant at the instance of the plaintiff there is no evidence in support thereof except the oral testimony of the plaintiff himself.P.W.2,a brother of the plaintiff,who is a legal practitioner,has deposed: ...[VERNACULAR TEXT COMITTED]...Admittedly Mathai died in 1125.Plaintiff has no case that he has shared the proceeds of the suit properties at any time after their conveyances.His testimony is that the proceeds are taken by defendants only.P.W.2 's testimony also shows that possession passed to the defendant as per the conveyances in his favour,and the defendant was enjoying their profits thereafter.It then follows that the conveyances in favour of the defendant were not mere colourable documents,but came to full effect passing possession and enjoyment of the properties to the defendant.

(3.) THE fact that the documents were executed at pretty long intervals distributed over a period of 2 odd years indicates that they could not have been for the purposes alleged by the plaintiff.If the idea was that he should settle his properties on his brother and brother -in -law on the eve of his departure on war service one would expect the documents to be executed almost simultaneously and not at such long intervals.All these facts go to show that the conveyances in favour of the defendant were not sham but were real.Ext.XVIII thandaper shows that in 1115 mutation was effected as per Ext.I.In these circumstances the plea that the impugned conveyances were sham or colourable not intended to create any title in the defendant cannot be accepted.