ELAYAPERUMAL THALAIVAR Vs. VELLAIKANNU THEVAR

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff-appellant for a declaration that the plaint-mentioned property belongs to him by right of purchase under the sale deed, Ex. A, obtained from one Guruvammal who had previously purchased from defendant 2 under the sale deed, Ex. 13, for Rs. 500. Defendant 1 who obtained a money decree against defendant 2 in O.S. No. 570 of 1917 on the file of the District Munsif's Court, Srivilliputtur, caused the suit property to be attached as that of the judgment-debtor, the present defendant 2. The plaintiff intervened in the execution proceedings setting up his claim to the attached property on the strength of the sale deed Ex. A, but without making any investigation of the claim, the executing Court rejected the claim petition as being late: vide Ex. F. Thereupon, he instituted the present suit under Order 21, Rule 63, Civil P. C, and his suit was resisted by the attaching creditor (defendant 1) on the ground that the original sale by defendant 2 in favour of Guruvammal under Ex. B was a nominal transaction intended to defraud the creditors. The trial Court in a well-considered judgment has found that the sale deed Ex. B, dated 19th August 1915, evidences a real transaction fully supported by consideration. On the strength of this finding the plaintiff, who is only a subsequent purchaser from the vendee under Ex. B, was given a decree in his favour. In the appeal, preferred by defendant 1 against that decree the learned Judge reversed the finding of the District Munsif and dismissed the plaintiff's suit.

(2.) It is urged by the learned advocate for the appellant in this Court, that the judgment of the lower appellate Court is vitiated by an erroneous assumption that the burden of proof lay heavily on the plaintiff to show that the sale in favour of Guruvammal was a real transaction and that it was not for the attaching creditor to show in the first instance that the sale was fraudulent or collusive. In fact the learned Subordinate Judge has distinctly stated in para. 4 of his judgment what view he took as regards the onus of proof in a case of this kind. To quote his own words, the Subordinate Judge says thus: The observation of the District Munsif in para. 8 of his judgment that the burden of showing that Ex. B. evidences a sham transaction, brought into being by defendant 2 and his wife with a view to defraud his creditors, had not been made out on the side of defendant 1 is not correct law. The burden of proof lay heavily upon the plaintiff to show that the sale deed relied upon by him is a real transaction supported by consideration, let alone the defendant's oral evidence.

(3.) In this view as regards the onus of proof, the Subordinate Judge approached the evidence adduced in the case and came to the conclusion that the plaintiff had failed to discharge the onus of proof that lay on him. If his view of the law is correct this Court sitting in second appeal would hesitate a great deal before interfering with the finding arrived at by him. It is urged on behalf of the appellant that the recent decision of the Privy Council reported in V.E.A.R.M. Firm V/s. Maung Ba Kyin , lays down the rule as to the burden of proof in a suit of this kind. It that case, the suit was by a defeated claimant under Order 21, Rule 63, Civil P.C. and their Lordships observe thus at p. 855 (of 5 Rang.): Now they 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, and that could only be done in this case, (there is no other evidence) by showing utter inadequacy of consideration.