Judgment:
R.C. Patnaik, J.
1. This Second Appeal by defendant is directed against the decision dated 14-1-1980 passed by the appellate Court in Title Appeal No. 69/31/17 of 1979/77/75 dismissing the plaintiffs suit reversing the decision of the trial Court in O. S. No. 141 of 1972-I.
2. The plaintiffs, who are brothers, instituted the suit for redemption alleging that the property in suit 419 decimals in extent appertaining to Plot No. 376 in Khata No 166 of mouza Krushnanagar in the district of Puri belonged to one Kasinath Naik and had been mortgaged by him with the defendant on 7-5-1955. Prior to redemption, Kasinath sold the property to them for a consideration of Rs. 200/- by a registered sale deed dated 23-9-1956 and put them in possession. While they were in enjoyment of the property, the defendant pursuant to his purchase in an auction held in the execution of a decree passed in O. S. No. 94/61 sought recovery of possession from them on 3-11-1972 and put them to notice that the suit for foreclosure has been instituted without deliberately impleading them despite his knowledge that they had purchased the property from Kasinath and acquired the right of redemption in respect of the said property. The decree obtained by the defendant, therefore, did not bind them and they were entitled to redeem the property. On the aforesaid pleadings, they filed the suit for redemption and for confirmation of their possession. The defendant resisted the plaintiffs alleging that the plaintiffs were near relation of Kasinath and the transaction was sham and colourable and there was no passing of consideration nor were even the plaintiffs put in possession. The transaction was a fraudulent one with a view to defeating his claim.
On the evidence led by the parties, the trial Court held that the transaction was a sham one and the plaintiffs were never in possession of the property and no consideration had passed thereunder. The transaction was entered into with a view to defeating the claim of the defendant. Hence, they were not entitled to redeem the property. In appeal, the findings of the trial Court were reversed. The transaction was held to be a genuine one and it was further held that the same was not entered into with a view to defeating the claim of the defendant. Since the plaintiffs were not made parties to the suit for foreclosure instituted by the defendant, they were not bound by the decree passed and the plaintiffs were justified and within their rights to resist the delivery of possession and were entitled to redeem the property. On the aforesaid holdings, the lower appellate Court decreed the suit.
3. The substantial questions of law on which this Second Appeal was admitted which are contained in ground No. (F) are :
(i) If the suit was barred by limitation ?
(ii) If the plaintiffs not having got themselves impleaded as parties in the suit for foreclosure had lost their right of redemption
4. Shri U. N. Mishra, the learned counsel for the appellant, has sought to challenge the findings recorded by the lower appellate Court on the question of possession, the nature of the transaction. But, I am afraid, while exercising second appellate jurisdiction under Section 100 of the Code of Civil Procedure, it is not open to this Court to re-appreciate and re-assess the evidence howsoever gross the error might be. (See AIR 1963 S. C. 302: V. Ramachandra Ayyar and Anr. v. Ramalingam Chettiar and Anr.) Findings of fact may be interfered with if those are shown to be perverse, namely, findings no reasonable man applying his mind reasonably and judiciously to the facts can reach or if findings have been recorded by ignoring vital and material facts having a considerable bearing or by taking into consideration extraneous facts. Where two views are possible, it is not open to the second appellate Court to upset the finding because the other view appears to be more appealing to it. Counsel for the appellant has not been able to show satisfactorily that the findings are perverse. May those findings are erroneous. But, howsoever grossly erroneous those may be, this Court exercising second appellate jurisdiction is precluded from interfering with the said findings. Going through the judgment and the findings, I am of the view that the findings were reached on relevant evidence and broad probabilities of the case.
5. Sufficiency or adequacy of evidence is for the final Court of fact. i. e., the appellate Court. Inadebuacy or insufficiency of evidence to support the findings is not a ground for interference in a second appeal. The lower appellate Court has recorded a finding believing the plaintiff's case that consideration was paid for the transaction and they were in possession and since they were residents of a village two miles away, on their behalf it could be that sons of Kasinath ware looking after the property. But, it has recorded a finding that possession was delivered to the plaintiffs and they have been in possession. It has disbelieved the defence evidence in that behalf. It could have been better, if the scribe had been examined to prove passing of consideration, but his examination is not imperative. The document was marked without objection. Hence, formal proof was dispensed with. If the lower appellate Court accepted the plaintiffs' version regarding passing of consideration, it was open to ft to do so. Law does not mandate plurality of witnesses in proof of a fact in issue.
6. Undoubtedly, the property sold to the plaintiffs by Kasinath, the mortgagor was a part of the three acres of land mortgaged by Kasinath with the defendant. Section 53 of the Transfer of Property Act hits transfer of immovable property made with an intent to defeat or defy the creditor of the transferor and renders the said transfer voidable at the option of the creditor so defeated or delayed. But, that does not affect the rights of a transferee in good faith for consideration.
7. There is no presumption of fraud and the correct approach in law has been aptly stated by Vaughan Williams, L.J. in In re Holland, Gregg v. Holland, (1902) 2 Ch. 360 ;
'I think that in each case you must look at the whole of the circumstances surrounding the execution of the conveyance, and then ask yourself the question whether the conveyance was in fact executed with the intent to defeat and delay creditors.'
Though certain allegations were made in the plaint, the lower appellate Court has rightly observed that there was not even a whisper in the testimony of the defendant that Kasinath, the executor of Ext. 1 the safe deed had created the sale deed with a view to defeating or delaying the creditors. The lower appellate Court has taken all the facts and circumstances into account in coming to the conclusion that there was no evidence that it was done contrary to Section 53. Since it was not established that the transfer was made with an intent to deft a or delay the creditors, there was no onus on the plaintiffs to establish that the transfer was in good faith for a consideration. It has been observed Chogmal Bhandari and Ors. v Deputy Commercial Tax Off II Division, Kurnool, AIR 1976 Supreme Court 656, in paragraph 7 :
'.........Under Section 53 of the Transfer of Property Act a person who challenges the validity of the transaction must prove two facts (1) that a document was executed by the settler ; and (2) that the said document was executed with clear intention to defraud or delay the creditors. How the intention is proved would be a matter which would largely depend on the facts and circumstances of each case.........'
8. Admittedly, the plaintiffs were not impleaded as parties in the suit for foreclosure (O. S. No. 94 of 1961). Their's is a purchase prior to the institution of the suit being on 28-9-1956. They are not lis pendense purchasers to whom Section 52 of the Transfer of Property Act applies. Hence, as mandated by Order 34, Rule 1 of the Code of Civil Procedure, they being persons having interest in the right of redemption should have been joined as parties to the suit relating to the mortgage. The defendant was aware of their purchase. As has been noticed by the appellate Court in paragraph 8 of its judgment, the defendant has admitted : .During the pendency of the suit I only came to know that the plaintiffs have purchased the suit land on 29-9-1956.'
Hence, apart from the constructive notice of th3 transaction which Section 3 of the Transfer of Property Act imputes to him, he had express notice of the transfer during the pendency of the suit, but nevertheless he failed to implead the plaintiffs as required by Order 31, Rule 1. The therefore, is that the plaintiffs are not affected in any way by the decree passed in the foreclosure suit and the proceedings in execution of the decree and his right to possession cannot be disturbed. The purchase by the defendant in execution may be valid against Kasinath and his successor in-interest who are parties to the action, but it does not affect the right of redemption of the plaintiffs. In Nagubai Ammal and Ors. v. B. Shama Rao and Ors., AIR 1956 SC 593. Venkatarama Ayyar, J. after referring to a passage from the judgment of Sir John Romilly. M. R. in Wood v. Surr. (1854) 19 Beav 551, observed :
'These observations directly cover the point now in controversy, and they embody a principle adopted in the law of this country as to the effect of a sale in execution of a decree passed in a defectively constituted mortgage suit. Such a sale, it has been held, does not affect the rights of redemption of persons interested in the equity of redemption, who have not been impleaded as parties to the action as they should have been under Order 34 Rule 1, Civil Procedure Code but that it is valid and effective as against parties to the action.'
Same view has been taken by the Bombay High Court in Bank of Poona now merged into the Sangli Bank Ltd. v. Navrajasthan Co-operative Housing Society Ltd., Poona and Ors., AIR 1968 Bombay 106. Therefore, the lower appellate Court was right in holding that the plaintiffs not having been impleaded as parties to the suit filed by the defendant foreclosure, they were not bound by the decree and in the proceedings in execution thereof. I find no error in the decision.
8. In the result, the Second Appeal is dismissed with costs.