NIRMAL KUMAR Vs. CO-OPERATIVE BANK LTD

JUDGEMENT

(1.) THIS is an appeal by the plaintiff against the judgment and decree of District Judge, Kota, dated September 30, 1958 dismissing his suit with costs.

(2.) THE suit has been filed against the Co -operative Bank Ltd., Kota (defendant No. 1), hereinafter called the 'the Bank', to avoid a mortgage made by plaintiff Nirmal Kumar's father Zorawarmal (defendant No. 7) in favour of the Bank on April 22, 1948 and the decree passed on its basis, as also for partition of the joint family property The relationship of the parties will be clear from the genealogy mentioned in the judgment of the trial court. It will be sufficient to say that the mortgaged property formed part of the self -acquired property of one Gulabchand.He had two sons Shobhagmal and Zorawarmal (defendant No. 7). Gulabchand executed document Ex. A 4 regarding his property sometime before his death in 1936 by which he gave the suit house to Zorswarmal. Zorawarmal had two sons Nirmal Kumar (plaintiff) and Nem Kumar, and three daughters. He mortgaged the suit house in favour of the Bank by document Ex. A. 2 dated April 22, 1948, for Rs. 12,000/ -. The Bank obtained a decree against Zorawarmal on July 31, 1954 and put the suit house to sale in its execution. The plaintiff then instituted the present suit on Jan. 29, 1957, for a declaration that the mortgage was illegal and void against him and the decree obtained by the Bank was void and inoperative. He also prayed for partition of the ancestral property claiming that he had a one -seventh share in it. The basis of the suit was the further allegation that the mortgage was not made for securing a loan for the legal necessity of the family or for the benefit of the family property. It was the case of the plaintiff that the loan was obtained for purposes of the 'Satta' transactions of Zorawarmal and the immorality of the purpose vitiated the mortgage.

(3.) ISSUES were framed on the points which were in controversy. The main dispute was on the question whether the property was the ancestral property of the plaintiff. This was the subject matter of issue No. 1, and the trial court decided it against the plaintiff. Issue No. 2 dealt with the question whether the mortgage was effected for legal necessity or the benefit of the joint family property or its estate, but the trial court ultimately reached the conclusion that a decision on this issue was not necessary because of the finding on issue No. 1. That court however reached the conclusion that the plaintiff had not succeeded in proving that the loan under the mortgage was taken by his father because of his 'satta' transactions or for starting a new business. The other issues were not pressed, and the trial court dismissed the suit as aforesaid.