NOMULA RAMAYYA Vs. NADIPINENI APPAYYA

JUDGEMENT

(1.) The main question at issue in this appeal is whether a document marked as Ex. J., is admissible in evidence. The District Munsif rejected the document, but it has been admitted by the Subordinate Judge. On the 9 October 1918, the 2nd defendant executed a sale-deed, Ex. H. in favour of the plaintiff. The plaintiff claimed the lands sold in some execution proceedings but his claim was dismissed, and therefore, he had brought this suit to declare his right under the sale-deed. Defendants 2 and 3 contend that the sale to the plaintiff was a purely nominal transaction which was not intended to take effect and in order to prove this, they rely on this document Ex. J. The plaintiff says, amongst other things : " I am entitled only to money not to lands." This recital was made almost immediately after the sale-deed for the lands had been executed in plaintiff's favour. I cannot possibly conceive that, if the plaintiff had really purchased those lands, he would have made this statement immediately afterwards. It was, I think, clearly made in order to protect the 2nd defendant's interest, the sale-deed having been executed for the same purpose, namely, to protect the 2nd defendant against his creditors who were then pressing him. I agree with the learned Subordinate Judge that Ex. J is very strong evidence of the nominal character of Ex. H, and I most certainly think that there is ho reason to set aside his finding on this question of fact, as it is justifiable on the evidence of Ex. J. If he is entitled to rely on Ex. J., his finding that the sale was only nominal would be justified and must be accepted. As regards the admissibility of Ex. J, the appellant-plaintiff relies on the Full Bench decision reported in Pyinda Venkatachelapathi V/s. Muthe Venkatachelapati [1914] 26 M.L.J 151. He relies on the following passage: Assuming the plaintiff is entitled to sue for possession on the ground that no title passed to the defendants under the sale-deed (Ex. A.), in order to succeed he must show that by virtue of the unregistered letter the sale-deed does not affect the immovable property which is comprised both in the sale-deed and in the unregistered letter, in the way in which the sale-deed purports to affect the property , if the unregistered letter had never been written. This being so, it seems to us the unregistered letter is relied on as evidence of a transaction affecting immovable property and, being unregistered, is inadmissible in evidence.

(2.) The facts of the case are not given in the report, but on reference to Muthe Venkatachelapathi V/s. Pyinda Venkatachelapathi [1912] 23 M.L.J. 652, the judgment of the Division Bench shows that the conflict in that case was whether the document evidenced a sale or merely a mortgage. There was no suggestion that the transaction was wholly nominal, the case on one side being that it was an outright sale and the case on the other, that it was only a mortgage. In Mr. Justice Miller's judgment he cites the Full Bench case in Raja of Venkatagiri V/s. Narayana Beddi [1894] 17 Mad. 456, which he summarizes as follows: It does not matter that the document may have the effect of proving a transaction affecting immovable property if it is used for the purpose of proving a transaction which does not affect immovable property in any way then it may be received in evidence.

(3.) If the summary of the Full Bench judgment is correct, and I see no reason to think it is not, then it must be applied to the present case where the facts are similar. What the defendants seek to do is to prove that there was a transaction, namely, the execution of a document which does not affect immovable property because it was the intention of the parties that it should not do so. Therefore, in order to prove that fact or that transaction, this unregistered document, Ex. J, would be admissible in evidence. The other case of this Court relied on by " the plaintiff is that reported in Putti Sesha Aiyar V/s. Kuppachar [1919] 10 L.W. 1 where again there was a dispute as to the nature of the interests that passed and no question of the nominal character of the transaction was raised. There is a case exactly in point reported in Yerraguntla Seshacharlu V/s. Mukhumalla Chinniah [1914] 25 I.C. 721, where it was held that an unregistered document purporting to be a sale-deed was admissible in evidence, because it was thereby sought to prove that a prior sale-deed was not a real transaction. That is the very point at issue in this case, and if that is correct, and it is nowhere dissented from, Ex. J. is clearly admissible in evidence.