P A RAGHUNATHA CHARI Vs. NSARAVAMUTHAIYANGAR

JUDGEMENT

(1.) This is a case in which the parties have so conducted themselves as to make it difficult to arrive at the exact truth. The main consideration for the sale-deed, Exhibit A, which was executed on the 13th July 1897 though dated the 10th, is a promissory note, Exhibit B, which there is evidence to show was antedated and was really executed on the same day as the sale-deed, Exhibit A. Exhibit B was for Rs. 3,200 made up of five items, and on the same day a conditional sale-deed of other items for Rs. 1,150, Exhibit GG, was executed, and there is evidence that a third sale-deed of other items for Rs. 500 was prepared but not executed. These deeds purport to show an indebtedness of Rs. 5,150 on the part of the 1st defendant to the plaintiff. The defendants pleaded that the sale-deed sued on was benami, and the 2nd defendant, the son, also pleaded that in any case it was not executed for antecedent debts, but to defraud creditors from whom the 1st defendant had borrowed for immoral purposes. At the trial the case set up for the 2nd defendant was that Exhibit A was part of a scheme to defraud the creditors of the 1st defendant and that Exhibit A was nominal and without consideration, while Exhibit GG- was in satisfaction of the only real indebtedness of the 1st defendant, but purported to be for debts which were non-existent. The 1st defendant made a statement to this effect when examined by the Subordinate Judge at the first hearing, but he did not appear at the trial to contest the suit, and he has not appealed against the decree which gives the plaintiff his share in the lands and charges the share of the 2nd defendant with the balance of the consideration found to have actually passed. The fact that he has not appealed may be due to his having become an insolvent, but as the Subordinate Judge points out the Vakil who originally appeared for him afterwards appeared at the trial for his son, the 2nd defendant, and he would no doubt have been put into the box if it had been thought that his evidence would help the 2nd defendant. In order that the sale may be binding on the 2nd defendant it is, of course, necessary to show that it was a real and not a nominal sale and that it was for antecedent debts. Even then it would not be binding if they were incurred for immoral purposes, but no attempt has been made to dispute the finding of the Subordinate Judge that this has not been proved. The question whether the sale deed is supported by consideration of antecedent debts to the extent found by the Subordinate Judge may be dealt with first. If the promissory note Exhibit B, as I am disposed to think, was executed at the same time as the sale-deed, it cannot be regarded as creating an antecedent debt, and it is for the plaintiff to prove as against the 2nd defendant that at the date of Exhibits A and B the 1st defendant was indebted to the plaintiff in the sums which are set out as the consideration for Exhibit B. Two of these items are admitted but it is said that they were satisfied by Exhibit GG and that the items of consideration mentioned in that document were non-existent. When, however, the 1st defendant was sued for these lands by a vendee from the plaintiff, he filed a written statement, Exhibit JJ, in which he pleaded that out of the consideration payable by the plaintiff under Exhibit A Rs. 450 had not been paid, and it had been arranged it was to be treated as paid under Exhibit GG so as to entitle the 1st defendant to a re-conveyance of the lands sold under Exhibit GG on payment of the balance of Rs. 700. This is altogether inconsistent with the story that the sale- deed Exhibit A was benami, and, as it appears from Exhibit JJ that the plaintiff and the 1st defendant had then fallen out, it does not appear likely that the 1st defendant would then have made in the plaintiff s favour an admission of having received all the consideration but Rs. 400 under Exhibit A, if in fact he had received nothing at all, or very much less.

(2.) The 2nd defendant s case is that the 1st and 3rd items of consideration for Exhibit B, Rs. 930 and Rs. 210 or Rs. 1,190 in all, were really discharged by Exhibit GG, but there is no satisfactory explanation why Exhibit GG is a sale for Rs. 1,150 and not for Rs. 1,190. On the other hand, it is said that the plaintiff has not proved that the items of consideration mentioned in Exhibit GG are genuine. One of the items, Exhibit LL, is a promissory note, dated 5th July 1896, in respect of an alleged advance by the plaintiff to the 1st defendant for the discharge of Court decrees and a payment under a lease to Srirangam Sellappa who has not been called. As regards the other item, an alleged advance on a pledge of kammals, though P. W, No. 5 proves that plaintiff pledged a jewel with him, Exhibit YY, and though Exhibit FFF shows that subsequently to the date of Exhibit GG the 1st defendant pledged kammals to a third party, we have only the plaintiff s evidence that the money raised by him on pledge was for the use of the plaintiff, apart of course from the recital in Exhibit GG and the fact that the defence have not put the 1st defendant into the box to contradict him. However this may be, it is, in my opinion, clear that at the date of Exhibits A and GG, the 1st defendant was indebted to the plaintiff in respect of other items besides those mentioned in Exhibit GG and, therefore, the story that Exhibit GG was taken in full discharge cannot be aecepted.

(3.) Coming now to the other items of consideration mentioned in Exhibit B, Exhibit M is the register of a suit, Original Suit No. 47 of 1896, against the plaintiff, 1st and 2nd defendants on a mortgage, dated 28th June 1892, executed by plaintiff and the 1st defendant for Rs. 400 in which the plaintiff obtained a decree for principal and interest. Rs. 90 was realized by the sale of the plaintiff s house which was re-conveyed to him later, and Rs. 600 was collected by rateable distribution in Original Suit No. 296 of 1896 out of assets realized by sale of the plaintiff s properties, and Rs. 100 was paid on 20th February 1898 and is said to have been borrowed by plaintiff under Exhibit PP. On 6th June 1895 the 1st defendant and plaintiff put in a petition that satisfaction might be entered up, saying they had paid Rs. 450 in April 1898, far more than was then due, but this was contested and the petition was dismissed. Lastly on 12th August 1898 satisfaction was recorded. Exhibit K is a promissory note of even date with the mortgage sued on, in which 1st defendant admits that the money was borrowed for his own use, and Exhibit L, dated 27th June 1895, is a renewal of Exhibit K. There is no reason to doubt that this item of consideration is perfectly genuine, as the debt was the 1st defendant s and the decree was discharged by the plaintiff. Exhibit HHH is a decree, dated 25th September 1896, against 1st defendant and plaintiff on a promissory note for Rs. 580 executed by them on 19th January 1896 for Rs. 680-4-3. Exhibit R shows that in satisfaction of the decree the plaintiff s properties were sold for Rs. 1,501, subject to a mortgage for Rs. 2,500 and to a claim on a security-bond. Out of the Rs. 1,501, Rs. 600 was paid as already mentioned in rateable distribution under Original Suit No. 47 of 1896. Exhibit O, dated 30th October 1897, is a receipt in favour of 1st defendant and plaintiff for Rs. 44-14-3, the balance due under the decree. The 1st defendant has not been put into the box to contradict the plaintiff s story that the consideration for the promissory note sued on went to the 1st defendant, and the plaintiff s case is supported in this and other respects by Exhibit H, a memorandum of accounts in the 1st defendant s own writing, dated 2nd March 1897, that is to say, three weeks before the date which appears on Exhibit B, and four months before the date of Exhibit A. It includes Rs. 900 with interest to 30th Masi Rs. 974, which corresponds to the item Rs. 980 in Exhibit B; about Rs. 900 under Original Suit No. 47 of 1896; Rs. 200 under Small Canse Court No. 38 of 1897, item 3 in Exhibit B Rs. 700 for the decree in Original Suit No. 296 of 1896; Rs. 185 borrowed to pay decree of Tirumalai Aiyangar and Ayyavier and Brothers and items bringing up the total to Rs. 3,117 and certain further items bringing the amount up to Rs. 3,165- 12-0. It is, in my opinion, satisfactory evidenced the antecedent indebtedness of the 1st defendant who has not been put into the box to explain it. It, no doubt, seems strange that the plaintiff should have advanced so much money to the 1st defendant, and incurred such liabilities on his behalf, that he should have delayed so long to enforce his rights under Exhibit A, if it is a genuine sale-deed, and that he has not accounted satisfactorily for not being in possession of the original sale- deed, but on the whole after a careful consideration of the evidence I see no sufficient reason for differing from the conclusion at which the Subordinate Judge has arrived. In view of the conclusion I have arrived at on the evidence as to consideration, the question of possession is of less consequenee, but I am not satisfied that the plaintiff had failed to get possession before 1902, when he alleges his possession was disturbed. Some of the documents may be explained with reference to his possession of lands sold to him under Exhibit GG, but Exhibit CO in the 1st defendant s writing seems to me to show that the 1st defendant had paid rent to the plaintiff for some of the items in Exhibits A and GG and owed a balance of Rs. 57 on that account. The rest of the document shows that the 1st defendant was to pay rent for the item in Exhibit GG, and to vacate one of the items in Exhibit A and that the plaintiff s lessee was to pay rent for Sallakulli which consists of items in Exhibit A. In this state of things I do not think there are sufficient grounds for interfering with the decree of the lower Court and would dismiss the appeal with costs. Phillips, J.