GOVIND RAM Vs. KASHI NATH

JUDGEMENT

(1.) This is an appeal by the defendants. The plaintiff Seth Kashi Nath who was said to be of weak intellect brought a. suit with his mother Mb. Asharfi Kunwar as next friend for a declaration that the property mentioned at the foot of the plaint was owned by the defendants second party and was liable to be attached and sold in satisfaction of the plaintiffs decree passed in Suit No. 42 of 1930 of the Court of the Subordinate Judge of Aligarh (Seth Kashi Nath V/s. Roshan Lal and others).

(2.) He impleaded as defendants to the suit Govind Ram and six others who were described as defendants first party and the firm of Phool Chand Roshan Lal situate at Hathras with its various partners who were described as defendants second party. The allegations contained in the plaint were that the firm of Phool Chand roshan Lal was about to become bankrupt in the mon April, 1929 and that the partners thereof, with a dishonest intention approached the plaintiff's guardian who was a purdanashin lady and borrowed a sum of one lakh of rupees. The firm subsequently, on 25 May 1929, executed a collusive document by way of a composition deed in favour of the defendants first party as trustees, although as a matter of fact no property was transferred to the trustees nor were the moveables belongings, ornaments and cash entrusted to them. The plaintiff obtained a decree on the basis of the loan mentioned above in Suit No. 42 of 1930, from the Court of the Subordinate Judge of Aligarh on 22 August, 1930, but when the decree was put into execution an objection was filed by the trustees and this was allowed on 28 February 1931 It is now said that the composition deed did not have the effect of vesting the property mentioned in the plaint in the trustees and that the plaintiff was entitled to get it attached and sold in execution of his decree.

(3.) The two sets of defendants filed separate written statements and pleaded that the composition deed dated 25 May 1929 was executed in good faith and for the benefit of all the creditors, that the moveable and immoveable property of the defendants second party was made over to the trustees for the benefit of all the creditors and that after the execution of the document the trustees entered into possession and paid a dividend of five annas out of sixteen for the creditors. The contention of the defendants was that the trustees had;got an absolute right over the property of the debtors by virtue of the com-position deed and that the property was not liable to be attached and sold in execution of the plaintiff's decree. A point was made by the plaintiff that, the document not being registered, the trustees had not acquired any right in the property in dispute, while it was pleaded in defence that there was no necessity for the composition deed to be registered.