1. This appeal arises out of a suit filed by the plaintiff to recover possession of the lands mentioned in the plaint on the ground that the sale-deed executed by her husband on the 13th December 1913 in favour of defendant 1 was merely a paper transaction and was not intended to be operative. The plaint referred to misrepresentation and fraud on the part of defendant 1, but no further particulars of the alleged fraud or misrepresentation were given, and in substance the suit was based on the ground that the transaction was an inoperative and hollow transaction. The defendant 1 was the step uncle of Gurubasappa, the husband of the minor plaintiff and the suit is filed by the plaintiffs next friend, her father Sangappa Basappa.
2. The defendant 1, who is the principal defendant, contended that it was a genuine and real sale by Gurubasappa to him, that it was passed for valuable consideration, and that he was rightfully in possession. He also contended that the claim was time barred under Articles 91 and 95 of the Limitation Act. The issues framed on those pleadings were these:—
1. Whether the conveyance, Exhibit 16, was intended to transfer ownership over the lands mentioned therein to defendant 1 as alleged by him?
2. Whether he paid any and what consideration therefor?
4. Whether the suit is barred by Article 91 of the Limitation Act?
3. The learned trial Judge was satisfied on the evidence that the conveyance was not intended to transfer ownership over the lands mentioned in Exhibit 16, and that in fact it was a hollow transaction. He also held that the consideration of Rs. 600 was not proved. He accordingly decreed the Plaintiff's claim for possession and mesne profits. The defendants appealed to the District Court, and the learned First Class Subordinate Judge, with appellate powers, who heard the appeal, came to the conclusion that Exhibit 18, which is a yadi said to have been passed by defendant 1 after the execution of the sale-deed, was not admissible in evidence, as it was not registered. He also came to the conclusion that the evidence as to the payment of consideration was not “quite unreliable”, and that the burden of proving the payment of consideration was wrongly thrown on the defendant. He ultimately came to the conclusion that the sale-deed was not proved to be hollow or to have been the result of any misrepresentation or fraud. He also held that under Article 91 or 95 the claim of the plaintiff was barred. He accordingly allowed the appeal and dismissed the plaintiff's suit.
4. The plaintiff has appealed to this Court from the decree of the appellate Court. The first point that has been urged in support of the appeal is that the lower Court was wrong in its view that Exhibit 18 was not admissible in evidence for want of registration. That document is in these terms:—
Gurubasappa father Basangowda residing at Hireyarankeri Pavti, (lit., receipt) to wit. The receipt passed by me Huchangowda father Huchangowda residing at Hireyarankeri is as follows:—I shall without any objection give up your land at any time that you may ask me to give up. Dated 25th December 1913.”
5. It is signed by defendant 1 and attested by two witnesses. We do not think that this document could be held to be inadmissible for want of registration. It is at the most an agreement to reconvey when Gurubasappa would ask him to give up the property. In the trial Court when the objection was taken, the point as to Registration was disallowed, and the document was admitted in evidence on the footing of its being an agreement after the usual penalty for want of stamp was paid. We are not at all sure that the document in terms comes binder Section 17(b) or (c) of the Registration Act. It does not purport to do any of the things mentioned in that section, clause (b) or (c). But even if it did, it seems that it would clearly be saved under clause (v), sub-section (2) of Section 17 of the Registration Act.
6. As to the execution of this document the trial Court found that it was duly prove. That Court disbelieved the evidence of the witness Jaffer, one of the attesting witness and believed the evidence of Basappa, as to the execution and defendant 1 admitted this signature on it.
7. Now objection seems to have been taken before the lower appellate Court as to the genuineness of this document and in any case as there is no finding on that point, it is open to us Sunder section 103 of the cpc to determine, if necessary, the question as to whether this document was executed by defendant 1.
8. We have heard Mr. Gumaste for the Respondent No. 1 on this point and we have heard nothing from him which would go to show that the finding of the trial Court on this point is open to any objection. The trial Court was perfectly right in its conclusion that the document was executed by defendant 1. As the document is admissible in evidence and as the decision of the lower appellate Court is based upon the view that it ought to be excluded from evidence, it seems to us that the findings of the lower appellate Court cannot be accepted. It is difficult to say that the lower appellate Court could have come to the conclusion at which it arrived, if it had been of the opinion that this document Exhibit 18, was admissible in evidence. That document affords very strong proof of the case made by the plaintiff that the sale-deed of December 1913 was intended to be a mere paper transaction. Indeed the document does not even mention that Huchangowda will have no objection to give up the land at any time if he was called upon to give up the same on payment of any sum. But it is an unconditional undertaking on his part to give up the land when called upon to do so, which is consistent only with the view that at the time no consideration really passed.
9. The next point to be considered with reference to the main question of fact as to whether the transaction was a hollow transaction or not, is whether there was any consideration for it. On that point the trial Court came to the conclusion that no consideration was proved to have been paid. Issue No. 2 on this point was not framed in a proper way. Undoubtedly the burden in the first instance lay upon the plaintiff. But on the evidence adduced by both the parties, the case made by defendant 1 as to how the consideration was made up had to be considered. According to the Defendant's allegation the sum of Rs. 600 was paid in 3 parts, each consisting of Rs. 200. The learned Judge dealt with each item of consideration in detail, and came to the conclusion with reference to each that the story was not reliable, and that the allegation was not proved. In the document itself there is no such specification of the consideration.
10. The appeal Court has dealt with the question of consideration in a halting manner. As to the item of Rs. 200 said to have been paid to Sangappa Kelur, the learned Judge has referred to Exhibit 68, which is the judgment of the Mamlatdar in a vahivati suit. With regard to the sum of Rs. 200 said to have been paid to Grurubasappa himself, the learned Judge has relied upon the evidence of Jaffer which was disbelieved in terms by the trial Court, and that too because in his opinion the other two items are proved. As regards the third item of Rs. 200 said to have been paid to one Sanganbasappa Gardi, the lower appellate Court simply refers to the fact that the account books show a payment of Rs. 177, but does not deal with the further difficulty in the case that the payment evidenced there appears to have been made in the month of May 1914, whereas according to defendant 1, the sum was paid on the day after the sale-deed of December 1913. The lower appellate Court relies upon the evidence of Jaffer, which was entirely disbelieved by the learned trial Judge who saw him in the witness box. In fact the learned trial Judge referred to that part of the story as being clearly an afterthought on the part of defendant 1.
11. On a close examination of the judgment of the lower appellate Court on this point it seems to us that the finding as to consideration cannot be accepted in second appeal. No doubt the question would still remain as to whether under the circumstances it is necessary to call for a fresh finding on the question from the lower appellate Court, or we should deal with the case here. Having regard to all the circumstances and particularly to the fact that Huchangowda agreed to give up the lands at any time when he was called upon to do so, it seems to us to be unnecessary to remand the case for any fresh finding.
12. We have considered the case as stated in the judgment of the trial Court, and having regard to the reasons given by the lower appellate Court on the question of consideration, it seems to us to be unnecessary to remand any issue to the lower appellate Court on this point. Exhibit 18 puts quite a different colour upon the whole case, and after hearing the arguments urged on behalf of respondent 1, we are satisfied that as defendant 1 executed the yadi, and as that yadi is held to be admissible in evidence, he has really no just or honest answer to the plaintiff's present claim. As regards the question of limitation, it presents no difficulty. If this transfer was inoperative and a mere paper transaction, it would not require to be set aside. It would be enough to refer on this point to the observation in Petherpermal Chetty v. Muniandi Servai(1) and to the decision of this Court in Narsagounda v. Chawagounda(2). The Article that would apply to a case of this kind where the document is bound to be inoperative is Article 144 and then the claim would be in time.
13. We reverse the decree of the lower appellate Court and restore that of the trial Court with costs here and in the lower appellate Court on the respondents.
14. Appeal allowed.