SAMA LAKSHMAYA CHETTY Vs. TSMANICKA CHETTY

JUDGEMENT

(1.) THE onus of proving that the sale-deed, Exhibit I, was a nominal transaction executed in order to delay creditors was on the plaintiffs. THE District Judge in his judgment sets out in Paragraph 3 and in the first part of Paragraph 4 the state of the evidence on both sides. He then referred to the evidence of possession and proceeds to say: "Possession not having been proved to have passed to defendants Nos. 1 and 2 before 1907, I think the evidence of defendant No. 3 and plaintiffs witnesses Nos. 3 and 4 should be preferred to the evidence of defend April, the Court directed a Commission to ants Nos. 1 and 2 and defendants witnesses Nos. 2 and 3 and I, therefore, find that the sale under Exhibit I was nominal and executed to delay creditors, whose existence, at the time it was executed, defendant No. 3 admits in his evidence." He does not record a positive finding whether possession passed or not under the sale. He says, "possession is not proved to have passed." In other words, if the onus was on the defendants to prove that possession passed, his finding was that they had failed to discharge that onus. Bat the onus was on the plaintiffs to prove any circumstances relied on for the purpose of showing that the sale was not a real and honest transaction. THE fact that possession was not proved to have passed apparently acted as a decisive circumstance in enabling the Judge to decide whether the witnesses on the plaintiffs side or on the defendants side with regard to two items of consideration should be believed. As his finding with regard to possession cannot be accepted as sufficient with respect to the question which he had to decide, his acceptance of the evidence on the plaintiffs side, which apparently was due to his finding on the question of possession, cannot also be accepted. THE result is that the whole judgment on the question whether the sale was a good and honest transaction or not, must be regarded as vitiated by the erroneous assumption as to the question of onus with regard to possession.

(2.) WE reverse the decree of the District Judge and remand the appeal for fresh disposal according to law. He will also deal with the question raised in the memorandum of objections. The costs of this second appeal and the memorandum of objections will abide the result.