MERLA RAMANNA Vs. CHELIKANI JAGANNADHA RAO

JUDGEMENT

(1.) Dharma Rao and Kasibabu were brothers, the former being older than the latter by about 19 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 1 and 2 (herein called the respondents) are the sons of Kasibabu who died in 1910. The family is governed by the Mitakshara. Respondents 3 and 4 do not appear and need not be mentioned. After Dharma Rao's death in 1929, the appellant sued the respondents in the Court of the Subordinate Judge at Coconada as being persons in possession of Dharma Rao's estate and on 27 January 1931 recovered judgment in the usual form limited to assets of Dharma Rao which had come to their hands. Certain immovables in which Dharma Rao had had an interest were attached before judgment and on 22nd April 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.

(2.) The appellant, on the contrary contends that Dharma Rao and Kasibabu had ceased so far as regards the attached properties to be undivided and had become separate in estate by reason of a deed of sale (Ex. B) dated 22 March, 1900 whereby Kasibabu purported to sell his one-tenth interest therein to his brother Dharma Rao. To this the first answer of the respondents is that the deed was a sham deed not intended to have any effect upon the rights of the parties and not the expression of any agreement between them. Further, and in the alternative, the respondents contend that even if the deed of sale was intended to be operative and was entered into animo contrahendi it did not have the effect of dividing the brothers' interest in the attached properties or of bringing to an end the right of the survivor to succeed to the whole interest. This contention is based upon the circumstance that in 1900 other branches of the family were joint with the branch represented by Dharma Rao and Kasibabu and it is said that the members of these other branches are not shown to have had notice of the deed of sale. As their Lordships do not find it necessary to examine this contention it need not be stated more particularly. The respondents also contend that if Dharma Rao had acquired Kasibabu's one-tenth interest in addition to his own he had brought the income into the common stock so as to make the properties joint. This contention was raised by the respondents in their petition and though it does not seem to have been urged at the hearing before the Subordinate Judge, it was maintained before the High Court with success.

(3.) Apart from Ex. B, their Lordships are satisfied that there is no ground for maintaining that Dharma Rao and Kasibabu's sons had become divided in respect of the properties now in question. The learned Subordinate Judge found that the respondents had " failed to prove that Ex. B is a sham or a nominal document" but the High Court on appeal thought that "the conclusion is irresistible that Ex. B, the sale deed, was a nominal conveyance. " The learned Subordinate Judge found in favour of the appellant that Ex. B operated to divide the interests of the two brothers and by his order of 10 September 1934 he maintained the attachment. The High Court having found that Ex. B was not intended to be acted on held that it did not operate a division of status as between the brothers. They also held that this would not have resulted from the deed even if it had been a real and not a sham transaction; and that if a division of interest had taken place by virtue of the deed the manner in which the income had been treated by Dharma Rao restored the properties comprised therein to the condition of joint family property. The High Court by order dated 16th November 1936 accordingly held that the appellant was not entitled to have recourse to the attached properties in execution of his decree, and this is the decision now complained of.