NAWAL KUNWAR Vs. BAKHTAWAR SINGH

JUDGEMENT

(1.) This appeal arises in a suit brought by the appellant for sale upon a mortgage, dated the 10 January 1889, executed by the first defendant, Bakhtawar Singh, and his father, Partap Singh, for self and as guardian of his son, Risal Singh, the defendant No. 2, who was at that time a minor. The amount secured by the mortgage is Rs. 10,000, but the plaintiff alleges that she has paid only Rs. 8,337- 9-0, which she seeks to recover with interest by sale of the mortgaged property. There was a prior mortgage in respect of the same property in favour of Munna Lal, the father of the third and fourth defendants. The plaintiff alleges that this mortgage has been discharged by her. Those defendants have purchased the mortgaged property from the first two defendants under a sale-deed, dated the 18 of July 1896, and have, therefore, been made parties to the suit. The fifth defendant, Banarsi Das, is the grandson of one Shibban Lal, who also held a prior mortgage in respect of the property mortgaged to the plaintiff. The plaintiff alleges that she paid a part of the mortgage-money due to Shibban Lal and seeks to redeem that mortgage by payment of the balance. The sixth defendant, Dalip Singh, is the purchaser of a portion of the mortgaged property from the defendants Nos. 3 and 4. The defendants Nos. 1 and 2 urge in answer to the claim that Rs. 1,000, only out of the consideration for the plaintiff's bond was paid and that the said amount has been realized by the plaintiff from the usufruct of the mortgaged property. The defendants Nos. 3 and 4, the only defendants who have seriously contested the claim, plead that the plaintiff's mortgage is fictitious and nominal and that it was executed in her favour by Partap Singh with a view to protect his property. This contention of the defendants has been accepted by the lower Court which has dismissed the plaintiff's claim. The plaintiff has preferred this appeal.

(2.) The principal question to be determined in the appeal is whether the mortgage in favour of the plaintiff was a fictitious transaction.

(3.) [After considering the evidence their Lordships proceeded as follows:]