MANNOOLAL SONAR Vs. NANDKISHORE MISHRA

JUDGEMENT

(1.) MACNAIR , J.C. 1. Chitroo, defendant 2, executed a sale-deed in favour of the plaintiff's two days after Manoolal, defendant 1, had applied for attachment in execution of his decree. After the house was attached the plaintiffs filed an objection but were unsuccessful. Accordingly they filed this suit for a declaration of their title. The suit was dismissed by the trial Judge but has succeeded in appeal. In second appeal it has been urged that the burden of proof has been wrongly placed. Reliance is placed on Ghunsham v. Umaprasad AIR 1919 PC 6. In that case their Lordships after mentioning that a mortgage-deed had been executed in a great hurry and with much secrecy, stated that the District Judge rightly threw on the plaintiff the onus of establishing that the transaction was entered in good faith. In V. E. A. R. M. Firm v. Maung Ba Kyin their Lordships also dealt with a suit instituted under Order 21, Rule 63, Civil P. C. They stated: Now they (i. e. the plaintiffs) being the ostensible owners of the property under a duly registered deed and a deed of transfer, obviously the party claiming to attach that property for somebody else's debt, not their debt, but the debt of the original debtor, must show that the sale was a fraudulent one.

(2.) IN Mohammad Ali Mohammad Khan v. Mt. Bismillah Begam their Lordships after mentioning the circumstances in which certain deeds were executed, stated: Under Order 21, Rule 63, the decision in the said claim proceedings was final subject to the result of this suit which the plaintiff instituted for a declaration that the deeds are valid and that the said properties are not liable to be attached in execution of the decree of the appellant. In their Lordships' opinion she is not entitled to this declaration unless she establishes to their satisfaction that the deeds in question were bona fide and were intended by defendant 2 to pass the beneficial interest in the premises in favour of the muttawali of the wakf and the plaintiff respectively.