Judgement

Appeal (No. 11 of 1939) from a judgment and order of the High Court (November 16, 1936) which reversed a judgment and order of the Court of the Subordinate Judge of Cocanada (September 10, 1934).

In suit No. 120 of 1930 of the Subordinate Court, Cocanada, the appellant sued the respondents, as persons in possession of the estate of the late Dharma Rao, for recovery of a promissory note debt due to him by Dharma Rao. The first two respondents were the sons of Dharma Raos brother, Kasibabu; the third respondent was a married daughter of Dharma Rao, and the fourth respondent was another of his relations.

The appellant had, before judgment, attached certain immovable properties as belonging to the late Dharma Rao. The first two respondents (alone concerned in this appeal) contended that they were joint with Dharma Rao, and that on his death the properties devolved on them by right of survivorship and could not be proceeded against for a simple debt of Dharma Rao. The Subordinate Judge reserved those points for decision in execution, and passed a decree on January 27, 1931, directing the respondents to pay a certain sum to the appellant " from out of the assets of the late "Chelikani Dharma Rao in their hands."

The appellant sought to execute his decree by proceeding against the properties attached. On September 12, 1931, the first two respondents filed Execution Application No. 772 of 1931, which gave rise to the present appeal, in the Court of the Subordinate Judge of Cocanada praying for an order establishing their right to the properties in question and setting aside the attachment effected at the instance of the appellant.

The appellant contended that Dharma Rao was a divided member so far as regards the properties in question by reason of a sale deed of March 22, 1900, whereby Kasibabu purported to sell his one-tenth interest therein to his brother Dharma Rao.

The Subordinate Judge rejected the respondents application.

On appeal by the respondents the High Court (Mockett and Lakshmana Rao JJ.) held that the sale deed was a nominal transaction, never meant to be effective, and that it was not acted upon ; that even if it was a real transfer it did not effect a division of status either generally or partially between Dharma Rao and Kasibabu. In the result, they found that the respondents were joint with their uncle, and as such had a right of survivorship. They therefore allowed their application, and set aside the order of the lower Court.

1941. Feb. 6, 7, 27. J. M. Parikh and Ralph Parikh for the appellant. The effect in law of the deed of sale of March 22, 1900, was that the respondents father, Kasibabu, and Dharma Rao, the two brothers, became separate from each other in status. That would be the result whether the sale deed was a real or a sham transaction. If it were a real transaction, Dharma Rao became the owner of a one-fifth share (his own one-tenth and his brothers one-tenth), and if it were a sham transaction, Dharma Rao became the separate owner of his own one-tenth share and the owner in trust for his brother of his brothers one-tenth share. In neither case was Dharma Rao a coparcener with his brother or his nephews, the respondents, who were not born at that time. The deed of sale effected a separation in estate of the respondents father and Dharma Rao. [On the question of admissibility reference was made to s. 92 of the Indian Evidence Act (I. of 1872), and to Balkishen Das v. Legge (( 1899) L. R. 27 I. A. 58.), where it was held that oral evidence of intention is inadmissible for the purpose of construing deeds or of proving the intention of the parties.]

[Sir George Rankin referred to Tyagaraja Mudaliyar v. Vedathanni (( 1935) L. R. 63 I. A. 126, 134, 137, 139.).]

Amirthathammal v. Periasami Pillai (( 1909) I. L. R. 32 M. 325.) deals with the same point, but it cannot stand in view of Tyagaraja Mudaliyar v. Vedathanni (( 1935) L. R. 63 I. A. 126, 134, 137, 139.). The sale deed was put on the register