MERLA RAMANNA Vs. CHELIKANI JAGANNADHA RAO

JUDGEMENT

(1.) DHARMA Rao and Kasibabu were brothers, the former being older than the latter by about nineteen years. The appellant Merla Ramanna was a creditor of DHARMA Rao in respect of a promissory note executed in 1928 for Rs. 10,000 with certain interest. Respondents Nos. 1 and 2 (herein called the respondents) are the sons of Kasibabu who died in 1910. The family is governed by the Mitakshara. Respondents Nos. 3 and 4 do not appear and need not be mentioned.

(2.) AFTER Dharma Rao's death in 1929, the appellant sued the respondents in the Court of the Subordinate Judge at Cocanada as being persons in possession of Dharma Rao's estate, and on January 27, 1931, recovered judgment in the usual form limited to assets of Dharma Rao which had come to their hands. Certain immoveables in which Dharma Rao had an interest were attached before judgment, and on April 22, 1932, the respondents applied to the Subordinate Judge to raise the attachment contending that the properties attached were not liable to be taken in execution under the decree. Their case is that they were coparceners with their uncle in a, joint Hindu family governed by the Mitakshara and that on Dharma Rao's death they became entitled by survivorship to the whole interest in the joint family property, the appellant, though a creditor of Dharma Rao, not having taken any steps in his debtor's lifetime to recover his debt.

(3.) THERE is a good deal of evidence upon the question whether the deed of sale (exhibit B) was intended by the parties thereto as an agreement between them or was executed merely to bring into existence a document which might, contrary to the truth, appear to have taken away from Kasibabu his interest in the properties comprised therein. Upon a full consideration of this evidence their Lordships are of opinion that the view taken by Mockett and Lakshmana Rao JJ. in the High Court has the greater reason and should prevail. In 1900 Kasibabu had just attained the age of eighteen years and Dharma Rao was thirty-seven. Of a total alleged consideration of Rs. 12,500 only Rs. 650 is said to have been paid in cash to Kasibabu at the time, the rest being accounted for in the deed by recitals about debts of the joint family, of the parties' own branch of the family and of Kasibabu personally, and by a statement that Rs. 1,000 had been paid as earnest money. Though accounts kept by Dharma Rao over many years are in evidence, there is no satisfactory proof of the existence of the alleged debts of their father and none at all that these were in 1900 pressing or that payments were made by Dharrna Rao in discharge of them. It is reasonably clear from these accounts that they draw no distinction between properties sold to Dharma Rao by exhibit B and other properties in which Kasibabu retained his original interest as a coparcener. He and his family are shown to have been provided for out of the income of the family as a whole down to il908 when the four branches become divided in status, and thereafter out of the income of the branch. It is not easy to account for such a transaction as the deed discloses save upon the ground that Kasibabu was thought to be foolish and extravagant and given to bad habits likely to lead to his dissipating his property. THERE is direct evidence contradicting one of the recitals as to his having taken a loan during his minority, and there is evidence of statements made by Dharma Rao disclaiming that by the deed he had become entitled to his brother's share. In 1912 at the making of the record of rights no such effect appears to have been given to the deed. THERE was another deed in 1910 whereby Kasibabu. purported to divest himself of other properties in favour of a nominee for Dharma Rao, and there is also to be considered the fact that Dharma Rao in 1927 made an ineffective, because unwitnessed, will purporting to leave all his properties to the respondents. In the present case the oral evidence as to which the Courts in India have differed must be judged mainly upon the probabilities arising out of the proved documents and the admitted facts. Their Lordships think it sufficient to say that the careful and detailed examination of the evidence given by Lakshmana Rao J. in his judgment appears to them to be convincing and that they agree with the High Court in regarding the deed of sale as being merely "nominal" in the sense that it was not intended to have effect upon the right of the parties inter se.