JIVRAM JAGJIVANDAS DAVE Vs. KANTILAL KESHAVLAL TRIVEDI

JUDGEMENT

(1.) THIS is an appeal from a suit which was filed by the plaintiff on behalf of himself and other creditors of defendant 6. The plaintiff said that, at the time when the salt was filed, there were two debts due to him from defendant6. The first was a debt incurred by defendant 6's wife, Mahalaxmi, who died before the present suit was filed. The debt was incurred by Mahalaxmi upon mortgage of property which belonged to her as her absolute property. But on the date upon which the mortgage was executed by Mahalaxmi, defendant 6 executed a surety bond under which he agreed to pay the plaintiff the amount of the debt of the mortgage in case Mahalaxmi did not pay it. The actual bond, which was executed by defendant 6, is not before us because the plaintiff said that he had lost it. But the plaintiff proved another bond executed by defendant 6 in lieu of the lost bond, which supports the contention of she plaintiff. Under this bond, defendant 6 again undertook the liability of paying the plaintiff his debt due from Mahalaxmi in case she did not pay it. The second debt which the plaintiff said was due to him was upon a mortgage executed by defendant 6 and the eldest son of defendant 6, defendant 3, the document being actually executed by defendant 6, on behalf of both on 90th February 1930, defendant 3 being then a minor.

(2.) THE plaintiff had sued Mahalaxmi and defendant 6 upon the first debt, and he had obtained upon it a decree which was composite. In the first instance, it directed the sale of the property which was mortgaged by Mahalaxmi in payment of the debt due upon the mortgage. In the second instance, it gave the plaintiff liberty to apply, in case the proceeds of the mortgaged property were not sufficient, for a personal decree against both Mahalaxmi and defendant 6. THE property which was mortgaged by Mahalaxmi was sold in accordance with the decree in 1937, and there was a deficit. THEreupon, the plaintiff applied for a personal decree against both Mahalaxmi and defendant 6, on 1st September 1938, and obtained it on 14th August 1939 the amount of the decree being Rs. 1,800 and odd.

(3.) THE contentions of defendant 1 who is the principal contesting defendant, was that it was not true that the partition was effected and a mortgage executed in his favour by the sons and the other wife of defendant 6 in order to defraud the plaintiff or other creditors. Defendant 1 said that he had paid in cash Rs. 2,300 to Bhailal, the creditor of the family, on the date upon which the mortgage in his favour was executed, and he said that the remaining consideration was in respect of monies already borrowed by defendant 6 from him upon a promissory note dated 22nd February 1936.