MARNEEDI SATYAM Vs. MASIMUKKULA VENKATASWAMI AND ORS.

JUDGEMENT

(1.) THE subject -matter of the suit out of which this second appeal arises is a tiled house and site sought to be recovered by the plaintiff (the appellant before me) on the basis of a sale deed in favour of his father executed by one Suranna, the original owner, on 30th August, 1924. The defendants -respondents resisted the action on the ground of a sale deed in their favour by the decree -holder auction purchaser in a suit instituted by a creditor of Suranna, who had obtained an attachment before judgment of the property in question on the very date of Suranna's sale deed in favour of the plaintiff's father. The main issue for trial in the present suit was whether the sale deed in favour of the plaintiff was nominally executed in fraud of the. creditors of Suranna, as alleged by the defendants. The trial Court and the lower appellate Court both having held against the plaintiff on this issue, he has preferred this second appeal in which having heard arguments on 18th January, 1949, I reserved judgment. I have since considered the matter over again in order to satisfy myself whether I can give effect to the contentions of the learned advocate for the appellant. Mr. Bhimasankaram contended firstly that due weight was not given by the learned Subordinate Judge to the rule of onus probandi applicable to the case, and secondly that Ex. D -18 (b), the affidavit of a living person not called into the box, ought not to have been accepted and. acted upon.

(2.) AS regards the first contention I have no hesitation in repelling it. The learned Subordinate Judge is, in my opinion, right in holding that the burden of proof, if it lay on the defendants, according to the decision of the Privy Council reported in Mina Kumari Bibi v. Bijoy Singh Dhudhuria, (1916) 32 M.L.J. 425 :, L.R. 44 IndAp 72 :, I.L.R. 44 Cal. 662., ceased to be a matter of any particular importance after adduction of evidence of both sides, as ruled by the Privy Council in the case reported in Mohamed Aslam Khan v. Khan Sahib Mian Feroz Shah, (1932) 63 M.L.J. 694 :, L.R. 59 IndAp 386 :, I.L.R. 13 Lah. 687 (P.C.). The learned Subordinate Judge was entitled to accept the case of the defendants as proved, not merely on the positive evidence adduced by them but also on the discrepancies and lacuna in the evidence on the side of the plaintiff adverted to in paragraphs 4, 5, 9 and 10 of the appellate judgment. Dealing with a case in which the question for consideration was whether the onus under Section 118 of the Indian Negotiable Instruments Act was discharged by the defendant in that case, Varadachariar, J., makes the following observations in the decision reported in Marayana Rao v. : (1937)1MLJ543 , with which I respectfully agree:

(3.) THE second appeal is accordingly dismissed with costs.