PERURI APPALARAJU Vs. PERURI KRISHNAMURTHY

JUDGEMENT

(1.) The plaintiff is the appellant before us. The facts out of which this appeal arises may be stated as follows: Defendant 1 is the natural son of the plaintiff, but adopted by his cousin. Defendant 1 obtained a decree on an unregistered mortgage bond which therefore operated as a mere money bond for a sum of Rs. 1,600 which now amounts to Rs. 3,000 in O. S. No. 141 of 1923. He applied for attachment of certain properties of defendants 2, 3 and 4 situated at Thetagunta. The attachment was ordered on 21 September 1927. But on 20 September, the preceding day, the properties whose attachment was sought were sold by Ex. A to the plaintiff for Rs. 9,000, The consideration for the sale deed consisted of (1) a sum of Rs. 4,931-1-9 due to the vendee on two mortgage documents dated 13th March 1922 and 8 December 1923, Exs. D and E-1; (2) Rs. 103-3-4 due on a promissory note to the vendee; (3) Rs. 3,800 intended for discharging (a) the debt due to the Rani of Tuni under a mortgage dated 5 March 1913, Ex. G, and (b) the debt due to China Talrazu and others under a mortgage deed dated 8th December 1923, and also (c) a decree debt due to one Malrazu Ramaswami who has also obtained attachments of some property in execution of the decree; lastly (4) Rs. 165-10-11 paid before the Registrar. There is no dispute about the genuineness of items 1 and 2.

(2.) As to item 3, the vendee as a matter of fact paid Rs. 4,387-4-0, that is, much more than Rs. 3,800 mentioned in the document. When the attachment sought by defendant 1 was effected a claim petition was filed by the vendee relying on the sale deed. This claim was inquired into by the District Munsif of Cocanada and it was dismissed: vide order, Ex. J. He held that the sale deed, Ex. A, was executed with the secret reservation of some interest in the lands to the judgment-debtors and therefore it is not prima facie a bona fide transaction. Hence this regular suit by the plaintiff. The Subordinate Judge of Cocanada who tried the suit dismissed the suit. The plaintiff files this appeal.

(3.) It may be observed that the real crux of the case lies in the question whether the sale deed, Ex. A, was for adequate consideration. Defendant 1 alleges that the property is worth Rs. 12,000, and there was actually an offer for that amount. But finally it was arranged between the plaintiff and the vendors to have a sale deed for Rs. 9,000 only, there being some kind of secret arrangement in favour of the debtors so that they may get the benefit of the difference between the full value and the value mentioned in the sale deed. The evidence on this matter consists of two transactions. One is an attempt to purchase by a retired Tahsildar, P. W. 2, Pandayala Gurumurthi. He says he was willing to purchase three-fourths of the lands for Rs. 7,500. His agent Atti China Venkatachalam gives evidence as D.W. 2. He says he settled the sale for Rs. 8,000. The discrepancy is only apparent because even P. W. 2 admits that D. W. 2 wrote to him recommending that the lands may be taken for Rs. 8,000. But the transaction fell through. P. W. 2 says that the whole extent of the land is 20 acres wet and 22 acres dry. This portion of his evidence seems to be inaccurate, because wo have got evidence in connexion with the second transaction, now to be referred to, that the extent of lands is 120 acres. The other transaction which is relied on in this case is that one Dantuluri Venkatanarasimharazu, D. W. 3, arranged for a purchase of these lands for Rs. 12,000. A stamped agreement was actually drafted, which is Ex. 1 in the case, but was not executed by the mother of defendants 2 and 3. This document shows that the lands in Thetagunta are 120 acres in extent. It is suggested that this Ex. 1 is really a fabrication to support defendant 1's case. We are unable to accept this suggestion. D. W. 3 is a Kshatriya gentleman getting an annual income of Rs. 4,000 from his lands and he is a Taluk Board member. He was private secretary to the Rani of Tuni, though it is just possible that he is not occupying that position because the Rani has adopted a son. We do not see any reason why this gentleman should lend himself to a fabrication of the document for helping this dispute between the plaintiff and defendant 1 who are Vysias in connexion with the debts due from defendants 2 and 3 who are Kapus. No prior enmity or partiality has been elicited in cross-examination of this witness, and we find it difficult to brush aside the transaction proved by this gentleman. Apart from this there are other suspicious circumstances in the case. Whereas Ex. 1 mentions all the debts of defendants 2 and 3, only defendant 1's debt is omitted from Ex. A, and arrangements are made for the payment of all other debts. It is true there is another debt due to one Soma Razu, but that has been realized by sale of the house of defendants 2 and 3. There was also another mortgage debt due to defendant 1, but that has been realized by the sale of Kathipudi lands. While defendants 2 and 3 have no other property, only defendant 1's debt has been left unprovided for at the time of the execution of Ex-A. The decree obtained by defendant 1 was itself the subject-matter of second appeal and Letters Patent Appeal, and we disposed of the Letters Patent Appeal yesterday. It is practically proved from the records in the case and from the evidence that the plaintiff was financing that appeal, and though it may be said that the plaintiff has an interest in getting rid of the debt of defendant 1 for the protection of his sale deed, still the fact that he was incurring expenses in addition to the consideration mentioned in the sale deed is significant.