1. The plaintiff in O.S. No. 36 of 1968 in the file of the Court of the Subordinate Judge of Chidambaram, is the appellant herein. The suit was instituted by him for partition and separate possession of his half share in the suit properties which consist of five items and for recovery of his share of income from items 4 and 5 of the plaint A schedule properties. Since the plaintiff has been granted a decree in respect of items 2 to 5, the appeal is confined only to item 1, a residential house in Vridachalam. There were two brothers, Krishnaswami Iyer and Kuppuswami Iyer. Krishnaswami Iyer, in his turn, had two sons, the appellant herein and one Dandapani Iyer, who died on 18th October, 1963 whose widow is the first respondent, whose sons are respondents 3 and 6, whose daughters are respondents, 3, 4, 5 and 7 and whose grandson through a predeceased daughter is the eighth respondent. Respondents 9 and 10 are strangers claiming some interest in the property. As far as item 1 of the A schedule property is concerned, the case of the plaintiff was that Dandapani Iyer and Krishnaswami Iyer constituted a joint family, that under the original of Exhibit A-4, dated 15th May, 1963 certain lands belonging to the joint family were sold for Rs. 3,000 and out of the sale proceeds a. house was purchased under Exhibit B-1, dated 20th June, 1963 for a consideration of Rs. 1,600 and that consequently the plaintiff (appellant) representing Krishnaswami Iyer's branch was entitled to a half share in the property. Certain other facts have to be set out with reference to this claim of the appellant. The original of Exhibit A-4, dated 15th May, 1963 was executed by Dandapani Iyer himself and his two sons, Ganesan and Krishnamurthi as well as by the appellant in favour of one Pachamuthu Odayar. On the date of the document Dandapani Iyer received Rs. 200 by way of advance. The document itself was registered only on 17th June, 1963. The case of the appellant was that the balance of the consideration for the sale deed under Exhibit A-4, viz., Rs. 2,800 was received only on 19th June,. 1963, i.e. even after the registration of Exhibit A-4 itself. The next day the suit item was purchased under Exhibit B-1, dated 20th June, 1963 after paying Rs. 1,600 to Rathnasabapathi Pillai, the vendor. Rathnasabapathi Pillai is no other than the son of one Rangasami Pillai, an Advocate under whom Dandapani Iyer was working as a clerk. It is on the basis that the sale proceeds under Exhibit A-4 were utilised for the purchase of the property under Exhibit B-1, that the appellant claimed a half share in the suit property.
2. This claim was resisted by defendants; 1 to 8 putting forward the contention that the property under Exhibit B-1 was not purchased out of the sale proceeds under Exhibit A-4 but from separate moneys belonging to Dandapani Iyer and his wife as well as Dandapani Iyer's son, who was working. It must be pointed out that the sale deed, Exhibit B-1, itself stands only in the name of Dandapani Iyer, and the sale deed has been attested by the appellant himself. Having regard to the fact that the sale deed stands in the name of Dandapani Iyer, the burden was on the appellant to prove that, notwithstanding the sale deed standing in the name of Dandapani Iyer, the property was purchased for the benefit of both the brothers, viz., Dandapani Iyer and the appellant herein. In support of this case, the only witness who has given evidence is the appellant himself, as P.W. 1. Having gone through the entire evidence of the appellant, I am clearly of the opinion that the appellant has not discharged the burden, of proving that the property purchased under Exhibit B-1 was for the benefit of both Dandapani Iyer and the appellant, and not for the exclusive benefit of Dandapani Iyer. There are certain circumstances which are clinching in this behalf. The first is that the appellant has stated in his evidence that the balance of consideration for the sale of the property under Exhibit A-4 was received only on 19th June, 1963 even though the document itself was registered on 17th June, 1963. It must be pointed out that the vendee under Exhibit A-4 is not any person who was closely connected with the vendor, but a stranger, and how the money was received after the registration of the sale deed passes one's comprehension. It is therefore clear that the appellant has put forward the case that the balance of consideration under Exhibit A-4 was received only on 19th June, 1963 for the purpose of connecting the same with the purchase of the suit house under Exhibit B-1, Apart from the ipse dixit of the appellant, there is no independent evidence also in this case. Neither the vendee under Exhibit A-4 nor the vendor under Exhibit B-1 has been examined to show that the balance of consideration under Exhibit A-4 was received only on 19th June, 1963 and that the consideration for the purchase of the property under Exhibit B-1 Was paid to the vendor under Exhibit B-1 under the circumstances stated by the appellant herein.
3. The second circumstance is that the property has been purchased in the name of Dandapani Iyer alone. Even the appellant as P.W. 1 had admitted that at the time when the property was purchased Dandapani Iyer was suffering from giddiness and oedema of legs and was not able to attend to his work, and, as a matter of fact, he was even confined to bed. If so, having regard to the fact that Dandapani Iyer was seriously ill and he had his own children, it is not probable at all that the appellant would have allowed Dandapani Iyer to purchase the property in his name, when according to the appellant, the consideration belonged to both himself and Dandapani Iyer. The only explanation which he offered was that he had such a great trust in his brother, that he did not expect his brother to deceive him or dupe him and that therefore he allowed the property to be purchased in the name of Dandapani Iyer. Having regard to the admitted fact that Dandapani Iyer was very ill at the relevant time and admittedly died about a few months thereafter, the appellant, who himself was a clerk in a co-operative bank, would not have allowed the property to be purchased into the name of Dandapani Iyer alone, having regard to the state of his health and the fact that he had a large number of children.
4. The third circumstance is that the appellant has admittedly attested Exhibit B-l. It is again admitted by P.W. I that Dandapani Iyer asked him to attest the document and that therefore he attested it. Here again, the only explanation offered by the appellant is that his brother asked him to attest the document and that therefore he simply attested it. It is not possible to accept this explanation at all. Dandapani Iyer would. not have asked the appellant to attest the document without a purpose for the same. It is not as if there was nobody else available to attest the document, the only person available was the appellant himself and therefore Dandapani Iyer asked the appellant to attest the document. It is clear that Dandapani Iyer asked the appellant to attest the document only with a view to bind him with regard to the purchase of the property in his name
5. With regard to such an attestation, it has been held by this Court in Ramaswamy Goundar v. Anantapadmanabha Iyer (1971) 1 M.L.J. 392, that such an attestation was purposely taken in order to bind the person so attesting. As a matter of fact, in that judgment, the observations of Sadasiva Ayyar, J. in Narayana v. Rama (1915) I.L.R. 38 Mad. 396 : 25 M.L.J. 219, to the following effect were quoted:
I may respectfully add that, in my pretty long experience as a Judicial Officer, if the attestor of the document has an existing interest in the property dealt with in the document, it has been always the case that this 'attestation ' has been taken in order to bind him as to the correctness of the recitals therein.
That was also the view of the learned Judge in an earlier judgment, namely, Kaniasami v. Nagalinga (1913) I.L.R. 36 Mad. 564 : 23 M.L.J. 301. Having regard to this legal position, the attestation of the appellant in Exhibit B-1, at the instance of the vendee therein, viz., Dandapani Iyer, could only be for the purpose of making the appellant bound by the purchase of the property in the name of Dandapani Iyer.
6. The fourth circumstance to which reference may be made is that, if the purchase of the property under Exhibit B-1 was made out of the sale proceeds under Exhibit A-4, the question would naturally arise as to what happened to the balance of the sale proceeds. The appellant has not offered any explanation whatever with regard to this. If he had claimed a half share in the concerned item on the ground that it was purchased out of the sale proceeds of Exhibit A-4, naturally he would have put forward the same claim with regard to the balance of the sale proceeds also, but there is absolutely no evidence to show that he put forward any such claim and there is no explanation as to what happened to that money also.
7. Having regard to these factors, which are relevant and also significant, I am clearly of the opinion that the appellant has not made out his case that the property purchased under Exhibit B-1 in the name of Dandapani Iyer was really meant for the benefit of Dandapani Iyer and the appellant herein.
8. Mr. P. S. Ramachandran, learned Counsel for the appellant, took me through the evidence of D.Ws. 1 and 2, D.W. 1 being the first defendant in the suit, and D.W. 2 being the father of the eighth defendant, viz., son-in-law of the deceased Dandapani Iyer. The said son-in-law himself was a vakil's clerk. On the basis of this evidence the learned Counsel contended that they put forward the case of a different source of consideration for the purchase of the property under Exhibit B-1 and that even that source of consideration had not been established. I am of the opinion that this argument is really of no assistance to the appellant herein. Practically D.W. 1 has stated, " I do not know " to many questions put to her. Dandapani Iyer having died, and the defendants being only his legal representatives it is not unlikely that they had no personal knowledge of the transactions and the final affairs of Dandapani Iyer and that consequently D.W. 1 stated, " I do not know " to many questions put to her, though she put forward the contention that the consideration for the purchase of the property under Exhibit B-1 was made up of Dandapani Iyer's earnings and the second defendant's earnings as well as the money which D.W. 1 herself provided by the sale of her jewellery. This may or may not be true. Still, as I pointed out already, the burden was on the appellant, who came to Court with the specific case that the property purchased under Exhibit B-1 was purchased with the sale proceeds under Exhibit A-4 and therefore belonged to both Dandapani Iyer and the appellant. As I pointed out already, Dandapani Iyer himself was a vakil's clerk and it is the admitted case of the appellant himself that he was also a job typist. If so, it is not impossible that Dandapani Iyer was able to find the sum of Rs. 1,600 for the purchase of the property under Exhibit B-l.
9. Mr. P. S. Ramachandran contended that Dandapani Iyer himself was in debts and that therefore he could not have found the money for the purchase of the property under Exhibit B-l. Here again, having regard to, the fact that the burden lay on the appellant himself, I am unable to draw any inference in favour of the appellant, even if it is established that Dandapani Iyer was in debts.
10. Under these circumstances, I am of the opinion that the conclusion of the learned Subordinate Judge, that the appellant has not established his case that the property purchased under Exhibit B-1. In the name of Dandapani Iyer was for the benefit of both Dandapani Iyer and the appellant, is correct and does not call for interference. Hence the appeal fails and is dismissed. Having regard to the relationship between the parties, I make no order as to costs.