Decided on June 02,1967

ABU Respondents


- (1.) The first defendant in O. S.92/58 of the Munsiff's Court, Kozhikode is the appellant in this Second Appeal. The said suit was brought by the first respondent herein for a declaration of his title to 3 items of suit properties and to set aside the summary order passed against him in E. A. 966/57 in O. S.108/55. The short facts necessary for appreciating the contentions of the parties are as follows:
(2.) The first defendant company had to obtain certain amounts from the second defendant and his brother inlaw, one Abubacker, in respect of the breach of the terms of an indemnity bond executed to the company by the said two persons. The suit properties belonged to the second defendant. He had purported to execute a mortgage over the properties under a registered hypothecation bond dated 5 4 54 in favour of one Abdulla and subsequently under Ext. A 4 dated 7 6 55 the properties were purported to be assigned by the second defendant in favour of the plaintiff for a consideration of Rs. 6000/-, the plaintiff being a son inlaw of his co-debtor Abubacker. The first defendant company brought a suit against Abubacker as well as the present second defendant for recovery of the amounts due to it and the said suit (O. S.108/55 of the Subordinate Judge's Court, Calicut) was decreed as prayed for in favour of the company by judgment dated 31 1 57 (Ext. B-7). In execution of the said decree the suit properties were brought to sale by the decree holder company as properties belonging to the second defendant. The plaintiff thereupon filed E. A. 966/57 to establish his right over the properties contending that the properties had been validly assigned to him by the second defendant under the sale deed Ext. A-4 and were not therefore liable to proceed against in execution of the decree obtained by the company against the second defendant. This claim petition was dismissed by the executing court on 15 1 58 and the order passed on the petition is produced and marked in the present suit as Ext. A-l. The plaintiff has come forward with this suit to get the claim order set aside and he seeks a declaration from court of his title and possession of the suit properties. The first defendant company who is the contesting defendant in the case raised the contention that Ext. A-3 mortgage stated to have been executed by the second defendant in favour of Abdulla was a collusive and sham transaction, the document itself being an ante dated one, that the promissory-note debt receipted therein was false, that the plaintiff herein who is the son inlaw of Abubacker had no means at all to advance the consideration stated to have been paid for the sale Ext. A-4, that the transaction Ext. A-4 was not a true or bona fide transaction but a mere colourable and collusive transaction created only for the purpose of delaying the realisation by the company of the amount due to it from the second defendant, and that the order passed by the executing court on E. A, 966/57 was perfectly correct and should not be set aside.
(3.) The Trial Court after careful discussion of the evidence adduced in the case found that Ext. A 3 is not a bona fide transaction and that it had been brought about under highly suspicious circumstances. It has found that the said document was ante dated and had been executed on stamp papers purchased on different anterior dates by 5 different persons. The alleged mortgagee Abdulla had not been examined by the plaintiff and this circumstance was relied on by the Trial Court to state that there was absolutely no evidence to show whether Abdulla was a person capable of raising Rs. 4000/ alleged to have been advanced under Ext. A 3. The promissory-note referred to as an antecedent debt for discharging which Ext. A 3 was executed had not also been produced in evidence. For these and other reasons stated by the Trial Court in Para.5 of its Judgment it came to the conclusion that Ext. A 3 was not a genuine or real transaction. It then proceeded to consider the truth and validity of Ext. A 4 and on this question also it found that the plaintiff had not satisfactorily proved that he had discharged the consideration mentioned in Ext. A 4 nor even that there was any pressing necessity or other circumstance probabilising the second defendant executing the sale deed Ext. A-4 for clearing off the alleged liabilities mentioned therein. It may be stated that out of the total consideration of Rs. 6000/- mentioned in Ext A 4 only Rs. 3 5 4 is recited as having been paid in cash and the balance amount is reserved with the vendee for the discharge of two liabilities, one stated to be due to Dharmodayam Company under a kuri transaction, and the second, the mortgage debt due under Ext. A-3. The circumstance that the plaintiff and the second defendant are brothers was taken by the Trial Court as one not without significance. The evidence adduced in the case did not according to the Trial Court, disclose the existence of any tangible assets with the plaintiff at the relevant time so as to enable him to advance the consideration for Ext. A-4 or to discharge the debts recited therein. It was also found by that court that there was no actual transfer of possession to the plaintiff under Ext. A-4 and that the second defendant himself continued to be in enjoyment of the property. The evidence of pws. 2 and 3 relied upon by the plaintiff to establish possession was not accepted by the Trial Court as in its opinion, these witnesses were not witnesses of truth. Accordingly, it held that the transaction evidenced by Ext. A 4 was not a true transaction but only a colourable, collusive and sham one which was entered into by the second defendant for the purpose of putting the property beyond the reach of the company. On these findings the suit was dismissed by the Trial Court.;

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