(VARNASI) VENKATA SASTRULU Vs. KALLURI VEERABHADRUDU

JUDGEMENT

(1.) This case (S.A. No. 241) illustrates forcibly the way in which the subordinate judiciary, I find, often misapplies the rule as to the fraud on the Registration Law laid down by the Privy Council Harendra Lal V/s. Haridasi Debi 1914 P.C. 67 and Mathura Prasd V/s. Chandra narayan 1921 P.C. 8. It is forgotten that, as in the case of every other kind of fraud, the party, who sets up this defence is bound to make it out by clear and cogent evidence. As has been pointed out by Beasley, C.J. and Curgenven, J., in their judgment in Ramanathan Chetti v. Delhi Batcha Thevar 1931 Mad. 335. There should be the strongest evidence of the fact there was collusion between the mortgagors and the mortgagees before the mortgagees can be deprived of the mortgage amount owing under the mortgage deed by reason of its registration being invalid, because of the inclusion of a small item of property not belonging to the mortgagors.

(2.) Again, it is important to bear in mind that a mere failure to make out a good title to the property dealt with by the instrument, is something totally different from the fraud contemplated by the decisions: See the observations of the Judicial Committee Ramanathan Chetti V/s. Delhi Batcha Thevar 1931 Mad. 335. The crucial question in each case, as I observed in my judgment in Marina Ammayi V/s. Sundayya 1929 Mad. 432, is, was it intended or not that the document should take effect in regard to the particular item of property in dispute? The fact, that it is a fictitious item, may often furnish clear evidence of fraud, but when the item does exist, to invalidate a transaction on the ground that the party has not adduced satisfactory evidence as to his title, is to misunderstand and misapply the law on the subject. If there were some legal evidence on which the lower Courts could have properly acted, however much I might regret their finding, I should not, this being a second appeal, interfere with it; but this is not a case of insufficient or meagre evidence but of no evidence at all and a decision that there is no evidence to support a finding is a decision of law : Harendra Lal V/s. Haridasi Debi 1914 P.C. 67.

(3.) This is, strictly speaking, not a suit by a reversioner, because on the death of the widow Gangammal in 1913, the person that succeeded to the property as the reversioner, was not the plaintiff but his father, who lived for about nine years thereafter, never impeached the sale and died in 1922. The plaintiff brings this suit in 1925 just as the period of limitation was about to expire. The sale was of lands to the extent of about 7 acres and both the lower Courts have found that the plaintiff's case that it was not for legal necessity, is thoroughly false; but then it is said that the sale deed comprises an item of a small house site measuring 64 sq. yds. which did not belong to the widow Gangammal and that therefore the parties committed a fraud on the registration law. The relationship of the parties has a material bearing on this issue. The vendor was Gangammal, and the vendee was defendant 1, her brother. The plaintiff alleged in his plaint that that plot did not belong to Gangammal but to defendant 1 himself. The District Munsif, who has found that fraud has been made out, has not chosen to give a finding as to whom this property belonged, When the attack is that the vendor was not the owner of the property, one would expect that this attack is made good by showing that somebody else was the owner. The learned Subordinate Judge seems to think, although he has also not given a definite finding, that the property belonged to Gangarnmanl's father. The position then is this; the defence maintains that Gangammal was the real owner; the plaintiff came to the Court with the allegation that it belonged to her brother and while the trial Court gives no finding, the appellate Court seems to think that it belonged to the father. This house site appears to have formed a portion of a bigger waste plot, on which there were encroachments made both by Gangammal and her father; that is what the Subordinate Judge says. Naturally, no kind of title deed could be produced; the acquisition, if at all, was by some kind of trespass.