DHIRENDRA NATH DAS Vs. INDRA CHANDRA KISRIWALA

JUDGEMENT

(1.) This appeal is on behalf of the plaintiff and the suit was one commenced under Order 21, Rule 63, Civil P.C., for establishing his title to the property in suit. Defendant 1 is the decree- holder, who obtained a money decree against defendants 2-5. This decree was put into execution in Money Execution Case No. 30 of 1935 of the Court of the 1 Subordinate Judge of Howrah and the property in suit was attached. The plaintiff thereupon preferred a claim under Order 21, Rule 58, Civil P.C., but that claim was refused, and following the adverse decision in the claim proceeding the present suit was started. The plaintiff's case in substance is that the property in suit belonged to Debendra Nath Sadhukhan, defendant 5, who was one of the judgment-debtors, and he made a gift of it in favour of his wife by a document which was executed on 3 May 1933. The plaintiff purchased the property by a kobala from Mrinalini on 9 May 1935, for a consideration of Rs. 2000 only and was in possession of it since the date of his purchase.

(2.) The suit was contested by defendant 1 alone and his contention was that the property was the joint family property of the Shadukhans of which Debendra was a member and that the deed of gift as well as the subsequent kobala in favour of the plaintiff were fictitious transactions entered into for the purpose of shielding the property from the creditors. Both the Courts below have accepted the defence version and have dismissed the plaintiff's suit. It is against these concurrent decrees of dismissal that the present second appeal has been preferred. Mr. Bose, who appears for the appellant, has raised a twofold contention before us. In the first place he has argued that the Courts below in arriving at the decision against the plaintiff had misplaced the onus. In the second place he has contended that the findings arrived at by the lower Appellate Court are not sufficient for the purpose of dismissing the plaintiff's suit.

(3.) Now so far as the first point is concerned, Mr. Bose's argument is that as the plain, tiff is the ostensible purchaser in whose name the kobala admittedly stands, he must be presumed to be the real owner of the property and the burden would be upon the defendants to show the contrary. I do not think that this contention can be sustained. The plaintiff was the unsuccessful claimant in the claim proceeding and an order was made adversely to him. That order is conclusive unless it is displaced by a declaratory suit brought under the provisions of Order 21, Rule 63, Civil P.C., and the onus is certainly upon the claimant to show that he has a right which was denied by the order: Mhammad Ali Mohammad Khan V/s. Mt. Bismillah Begam . As Sir Law-rence Jenkins put it in Jamahar Kumari V/s. Askaran Boid (1916) 3 A.I.R. Cal. 666, the burden could not be discharged merely by pointing to the innocent appearance of the instruments under which the plaintiff claims. He must prove that they are as good as they look and it is not for the defendant to make out that they are collusive. Mr. Bose lays stress upon the decision of the Judicial Committee which is to be found reported in V.E. A.R.M. Firm V/s. Maung Ba. Kyin . In our opinion, this decision cannot be read as laying down any contrary proposition of law regarding the ouns in such cases. In this case, the plaintiff was not only the ostensible owner of the property under a registered deed but out of the consideration of Rs. 20,000 the vendor, who was a debtor to the father of one of the purchasers, was given a credit for the sum of Rs. 17,000 which he owed to the latter. The only question raised was whether the balance of Rs. 3000 which was alleged to have been paid in cash, was really paid or not and their Lordships held that even though the evidence regarding the payment of this Rs. 3000 could not be considered satisfactory the consideration that was undoubtedly present, namely Rs. 17,000, was quite adequate having regard to the total value of the property and even if Rs. 3000 was not paid that was not enough for the purpose of drawing the conclusion that the sale was fraudulent. In fact, Viscount Dunedin was himself a party to the judgment in the later decision pronounced by the Judicial Committee which is to be found reported in Mhammad Ali Mohammad Khan V/s. Mt. Bismillah Begam , referred to above, and we do not think that their Lordships of the Judicial Committee did intend to say anything different from what was stated in the earlier case. The first contention of Mr. Bose therefore must be overruled.