GAURISHANKAR KIRPASHANKAR JOSHI Vs. HIRALAL RAMCHANDRA DAVE

JUDGEMENT

(1.) It would be unnecessary to consider whether the finding of the Court below that the document (mortgage bond) in dispute is not proved is erroneous in law by reason of the fact that that Court has recorded that finding under the impression that the Transfer of Property Act applies to the document, if the decree can be supported on the ground of the Court's findings on the other issues raised. Those findings are that assuming the document sued on to be genuine, it is not supported by consideration; that the plaintiffs case as to his title derived under an assignment from defendant 4 is not true; and that the document was got up by the plaintiff and defendant 4 for the purpose of defeating the rights of defendant 5 and defrauding him.

(2.) It is contended before us by Mr. Gokuldas for the appellant that the finding as to consideration and also as to the assignment should not be accepted by us in second appeal, because in the Court of first instance, so far as the question of consideration was concerned, there was no controversy between the parties, and so far as the other question about the assignment was concerned it was not open to defendant No. 5 to dispute it, as the assignor, namely, defendant 4, having been impleaded as a defendant, had admitted the assignment.

(3.) As to the question of consideration, in one sense it is true that the question of consideration was not raised in specific terms. But it was involved necessarily in the larger question whether the mortgage in dispute was a real or a sham transaction. Defendant No. 5's case in the Court of first instance was that that document was a sham transaction got up by the plaintiff and defendant 4 in collusion for the purpose of defrauding his (defendants s) rights. And it was for the purposes of that defence that issue No. 2 was raised in the Court of first instance. For the purposes of that issue it was material to consider whether the mortgage was supported by consideration; and whether the plaintiff had the document assigned to him by defendant 4 as a genuine and honest transaction. If it were not for those purposes the second issue in the Court of first instance would be meaningless.