OUSEPH SOURO Vs. THOMMEN MICHAEL

JUDGEMENT

(1.) The suit out of which these appeals have arisen, was instituted in the District Court at Anjikaimal, to enforce a covenant for indemnity in a partition deed. Deceased Avira, who was the father of defendants l to 10 and the husband of the 15th defendant, and his brothers, the 13th defendant and the plaintiff, partitioned their properties in the year 1103 by deed Ext. C, by which a mortgage, and puravaipa right over a property, which was subject to an encumbrance in favour of a church, was allotted to the share of the plaintiff; Avira undertook by Ext. C to clear the encumbrance, and in the event of default, to indemnify the plaintiff, the properties allotted to him being also made answerable. The church obtained a decree Ext. I against the plaintiff, and another, and in execution purchased the mortgage and puravaipa right, and obtained delivery of possession under Ext. B on the 30th Dhanu 1116. The plaintiff has therefore sued to recover damages, to the extent of the mortgage and puravaipa amounts and interest, charged on four items of properties allotted to the share of Avira, impleading also defendants 11, 12 and 14, who are subsequent transferees of some of them. The court below overruled the contentions of defendants 1 and 11 to 14, and decreed the suit in terms of the plaint. The 11th defendant who is the transferee of item 1, and the 12th defendant who is the transferee of item 4, of the properties scheduled in the plaint, have preferred these appeals.

(2.) The chief question for determination is, whether the defendants 11 and 12 and the predecessor-in-interest of the former, were transferees for value without notice of the covenant for indemnity. Item 1 was purchased by Avira under a document of the year 1100; but this and other items of properties, in the names of the three brothers, were thrown into the hotchpot and partitioned by Ext. C. Avira then sold item 1 by deed Ext. IV of the year 1107 to Jacob, who was a minor, and was represented by his guardian Pappi, referring to the document of 1100, and not to Ext. C, as the source of his title; subsequently, in the year 1119, Jacob sold item 1 to the 11th defendant, by Ext. III. The onus is on the transferee to prove, that he had no notice of the prior charge. This has been so laid down by the Privy Council in Bhup Narain Singh v. Gokul Chand, 13 Patna 242, and Subramonia Iyer v. Lekshmikutty Amma, 23 Cochin 173 F.B., to mention Only two cases on the subject.

(3.) The first question is, whether the 11th defendant has proved, that his transferor had no notice. The recital in Ext. IV, by itself, cannot be held to be conclusive. At the trial, the 11th defendant testified, that Avira had represented to Pappi aforesaid at the time of Ext. IV, that the property was not subject to any prior charge, but in cross examination admitted, that his only information was from the recital in the document. There being no other evidence, it must be held, that the 11th defendant has not sustained the onus of proof, that his predecessor was a transferee without notice.