THIAGARAJA AIYAR Vs. NARAYANASWAMI PILLAI

JUDGEMENT

(1.) The third defendant obtained the property of the late Govinda Pillai by way of surrender from his daughter; but he gave an undertaking that he would pay off certain debts. He mortgaged usufructuarily a substantial item of property in favour of the plaintiff; and the consideration for it was partly to discharge e debt of the late Gbvinda Pillai and partly to discharge the private debt of the third defendant. The first defendant claimed to be a creditor of the late Govinda Pillai; and he obtained a decree against the daughter of Govinda Pillai, that is, the second defendant, and against the third defendant. In execution of that money decree, he attached certain property said to belong to the late Govinda Pillai, including the property which had been usufructuarily mortgaged to the plaintiff. He alleged that this mortgage was nominal and false. The plaintiff resisted the attachment of this property; but was unsuccessful. He therefore filed this suit under Order 21, Rule 63, Civil Procedure Code, to set aside the summary order; and it has been held by the lower appellate Court that this was not a nominal transaction and therefore passed a decree as prayed for.

(2.) It has been argued that Exs. G and H are false documents, fabricated for the purposes of this litigation - and this contention seems to have found favour with the trial Court; but the learned Subordinate Judge in appeal came to the conclusion that the principal documents filed by the plaintiff were genuine, true, and supported by consideration. It has been argued that the lower appellate Court overlooked certain evidence; but I find no reason to think that it was unaware of the evidence to which reference has been made. I am not therefore prepared to disturb this finding of fact of the lower appellate Court.

(3.) The next contention is that as the third defendant had obtained possession of the property as the legal representative of Govinda Pillai and made an alienation to the plaintiff and that as the plaintiff knew that the debt of the deceased Govinda Pillai had not been completely paid off and that the consideration or part of it was not utilised for the discharge of such debts, the first defendant is entitled to ignore the alienation to the plaintiff and to attach the property in the same way as if the alienation had not been made. Reliance is placed on Greender Chunder Ghose v. Mackintosh (1879) I.L.R. 4 Cal. 897, in which it was held that the law in India was the same as in England and that the creditors of the testator or ancestor can follow the land into the possession of a purchaser from the heir or devisee, if it can be proved that such purchaser knew (1) that there were debts of the ancestor or testator left unsatisfied and also (2) that the heir or devisee to whom he paid his purchase money intended to apply it otherwise than in the payment of such debts. I think it has rightly been argued that the plaintiff had a constructive knowledge - if not actual knowledge - of the terms of the surrender, in which mention is made of the debt of the first defendant and that he should therefore have enquired whether the debts had been paid off. It is also clear that the consideration for this alienation was not applied entirely for the discharge of Govinda Pillai's debts; but I do not think that these facts alone entitled the defendant to attach the property.