GANGA BAI Vs. VIJAY KUMAR

JUDGEMENT

(1.) This is a plaintiff's appeal on a certificate granted by the High Court of Bombay, Nagpur Bench, under Article 133 (1)(a) of the Constitution.

(2.) On March 24, 1953, defendant 1 executed on behalf of himself and his minor son defendant 2, a deed of mortgage in favour of the plaintiff. Defendant 3 is also a son of defendant 1 but he was born, after the mortgage deed, on September 30, 1955. On January 11, 1956 a registered deed of partition was executed amongst the defendants under which the mortgaged property was allotted to the share of defendants 2 and 3.

(3.) On September 1, 1956, the mortgagee filed Civil Suit No. 3-A of 1956 to enforce the mortgage. On September 20, 1958, the trial Court passed a preliminary decree for sale of defendant 1's interest in the mortgaged property. It held that part of the consideration for the mortgage was not supported by legal necessity and the balance of the debt incurred on the mortgage was tainted with immorality. Though, therefore, defendant 1 had executed the mortgage as a manager of the joint Hindu family consisting of himself and defendant 2, the debt was held not binding on the one-half share of defendant 2 in the mortgaged property. On the issue relating to the genuiness of the partition effected by defendant 1 between himself and his sons, the trial Court recorded a finding that it was a sham and colourable transaction and its object was to delay or defeat the creditors.