RAMAN NARAYANAN Vs. MATHEVAN NARAYANAN

JUDGEMENT

(1.) This second appeal is by the 4th defendant, subsequent purchaser in a suit on a prior hypothecation bond which was dismissed by the Trial Court but has been decreed by the court below.

(2.) The property in dispute belonged to the defendants 1 and 2 sister and brother among themselves and children of defendants 5 and 6. On 24-11-1118, defendants 1 and 2 executed a usufructuary mortgage in favour of the 3rd defendant for a sum of Rs. 100. The plaint hypothecation bond Ext. A was executed by them for Rs. 200 subsequently on 26-12-1118 in favour of the plaintiff. There was finally the sale deed in favour of the 4th defendant on 27-12-1118 for Rs. 300. Ext. A did, not only not mention the existence of the admitted prior usufructuary mortgage Ext. II but affirmed towards close of it, that there was no prior encumbrance. Ext. III while it mentioned Ex. II, and provided for its redemption, did not mention anything about Ext. A. It would appear further that no interest was paid under Ext. A until date of suit 2-1-1951 even though the plaintiff had to forgo interest, exceeding one-half of the principal amount under the then prevailing law of Travancore. It appeared again that according to the plaintiff Rs. 175 out of Ext. A interest was advanced by the plaintiff on 15-11-1118 a few days before Ext. II and the balance Rs. 25 was advanced in two instalments of Rs. 10 on 23-12-1118 and Rs. 15 on 28-12-1118 when the instrument having been obtained from the Registration Department by the 1st defendant in the first instance was handed over to the plaintiff. In the above circumstances the 4th defendant contended that Ext. A was not a bona fide transaction but had been entered into fraudulently and collusively on the initiation of the 3rd defendant husband of the 1st defendant in favour of his brother the plaintiff with a view to defeat the 4th defendant whose sale transaction under Ext. III was settled already on 25-12-1118. Having heard learned counsel and gone through the records, I am inclined to agree with the Munsiffs conclusion of the evidence in the case and hold in favour of the 4th defendant.

(3.) Learned counsel for the plaintiff contends that so long as Ext. A is found to be genuine in the sense that defendants 1 and 2 have admitted its execution it is not open to the 4th defendant subsequent purchaser to question the validity and binding nature as against him of Ext. A. According to him the plaintiff has sworn to the consideration of Rs. 200 and there was no evidence in rebuttal and this was enough to grant decree in plaintiffs favour. Reference was made by learned counsel to Chinnan v. Ramachandran, I. L. R.15 Mad. 54. In that case the learned Judges held that prima facie when the execution of a mortgage or other conveyance is proved further evidence is not required to show that the purchaser has taken the interest what the document purports to convey. It is not necessary for him to prove as against a third person that the consideration passed and proof that the consideration mentioned did not pass is of no avail to show that interest which the instrument purported to convey was not conveyed to the purchaser. The learned Judges added however such proof is only important, when taken with other circumstances it tends to show that the instrument was a mere sham not intended to convey any interest to the ostensible purchaser at all. Indeed it is this latter proposition that learned counsel for the appellant 4th defendant contends for. It is only the first part of the proposition in 15 Mad. that is again laid down by the later decision in Maung Din v. Ma Huin Ne, AIR 1925 Rang. 227 where it was held that it was not necessary that a person claiming title under a duly registered document should prove as against a third person that the consideration stated did pass.