Decided on November 26,1949

Ramchandra Kasturchand Appellant
Daulat Durga And Others Respondents


Rege, J. - (1.)HOUSE Nos. 42 and 43 on the Municipal Office Road, were attached in execution of their decrees by three individual -creditors. The appellant Ramchandra objected to the attachment in each case but all the objections were dismissed. He therefore, filed three separate Baits under the provisions of O. 21. R. 63, Civil P.C., for a declaration of his title to the property by virtue of a sale by Dhanna on 30 -8 -1940 evidenced by the sale -deed Ex. P -1.
(2.)THE contesting defendants denied the sale and its validity in general terms and the judgment -debtor remained absent. The suits were tried by Mr. Ramsingh, 2nd Additional Munsiff, Indore. The plaintiff -appellant succeeded in two of them (NO. 492/44 and 281/1944) against the attaching creditors, Daulat Durga Lodha and Nathulal Narsingh Mali but failed in suit No. 486/1942 against the Sarvajnik Sahakari Saustha and Banwarilal. The unsuccessful parties appealed to the learned District Judge, Indore who upheld the dismissal in suit No. 456/1942, and reversing the decrees in the other two cases, and dismissed the plaintiff's suit. The plaintiff has filed three separate appeals, but as counsel agree that the same questions of law and material facts arise in all the cases this judgment will dispose of and govern all of them. It was first contended that on proof of the execution of the sale deed, the onus should have been put on the contesting defendants to prove circumstances vitiating the transaction. It is accepted principle of law that a party must prove his own case and suits under O. 21, R. 68 are no exception. To prove a sale where a third party contests it there must be proof of the existence in the vendor of the title the sale -deed purports to convey; and there must also be proof of consideration and as observed in Jamaher v. Askaran,, 30 I.C. 855 : (A.I.R. 1916 Cal. 666) it is not enough for the plaintiff to rely on the innocent appearance of the deed but he must further prove that the deed is as good as it looks. A similar view has been taken in Appathurai V. Vellayan Chettiar, : 55 Mad. 748: (A.I.R. 1932 Mad. (302), wherein the learned Judges observed on the burden of proof :
If the plaintiff produces his deed, and swears that it is genuine and far full consideration, and the defendant has nothing to say to the contrary, the plaintiff will succeed and where the burden of the plaintiff is so light that it is scarcely worth arguing whether it is mote correct to say that the burden is originally upon the defendant, or upon the plaintiff. But where the defendant has something substantial to say to the contrary the real burden must in inevitably fall upon the plaintiff to establish the right which he claims.

The appellant's learned counsel contended on the authority of V.E.A.R.M. Firm v. Maung Ba, : A.I.R. 1927 P.C. 237 : (5 Rang. 852), that proof of the execution of the sale -deed shifted the onus on the defendants; but I do not think such a principle could be deduced from the decision. In that case a sale -deed which purported to be for a consideration of Rs. 20,000 was the basis of the plaintiff's title and receipt by the vendor of Rs. 17,000 had been proved beyond doubt; and what their Lordships held was that it was in the circumstances for the party questioning the sale to prove fraud inter alia by showing the utter inadequacy of consideration for the sale. The onus in a suit under O. 21, R. 63 came up for consideration of the Privy Council in the case of Mohommad Ali v. Mt. Bismilla Begam, : A.I.R. 1930 P.C. 255 : (128 I.C. 647 ) and their Lordships held :

Under O. 21, R. 63, the decision in the said claim proceedings was final subject to the result of this suit which the plaintiff instituted for a declaration that the deeds are valid and that the said properties are not liable to be attached in execution of the decree of the appellant. In their Lordships opinion she is not entitled to this declaration unless the establishes to their satisfaction that the deeds in question were bona fide and were intended by defendant 2 to pass the beneficial interest in the premises in favour of the mutawali of the wakf and the plaintiff respectively.

(3.)THE principle was affirmed in Anna Mali Chettiar v. Ramnathan Chettiar,, A.I.R. 1947 P.C. 98 :, (1947) 2 M.L.J. 54) wherein it was held that where the plaintiff in a suit under O. 21, R. 63, Civil P.C., proves prima facie that the consideration as stated in the sale -deed had passed the burden shifts to the other party to prove the contrary.

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