MAHAMAD AMIN Vs. HUSAN MAHAMAD

JUDGEMENT

(1.) Plaintiff herein one Mahamad Amin son of Mahamad Ibrahim filed a suit against his brother Hasan, the first defendant, the second defendant, wife of the first defendant and the third defendant the wife of a deceased brother of the plaintiff and defendant No. 1, named Kamal, to recover possession of a house and grounds in the plaint described. The said house and land belonged to the father of the plaintiff and defendant No. 1 and the deceased Kamal.

(2.) The plaintiff's case was that by a registered sale-deed in the year 1885 he purchased the property from his father. In 1886 certain mortgagees filed a suit against the plaintiff and his said father and mother on a mortgage bond executed by the father. The Court of first instance as also the District Court, held that sale to be a sham transaction and there is no doubt that the plaintiff herein paid off that mortgage deed. The father died in 1888. The first Court held that the plaintiff was entitled to succeed, the material issues raised therein being (1) whether the property in suit belongs to the plaintiff and (2) whether the sale to plaintiff, if any be proved, is fraudulent, colourable and collusive as alleged by the defendants.

(3.) The first Court, however, appears not to have gone into the question of whether the plaintiff actually paid any consideration for the sale and seems to have assumed that the deed dispensed with proof thereof. As is well-known however, the law in India differs from that in England on this point and previous to the Contract Act the Privy Council held that the fact of an instrument being under seal does not of itself, in India, import that there was a sufficient consideration. Raja Sahib Prahlad Sen V/s. Baboo Budhu Sing (1869)2 B.L.R. P.C. 111. Under that Act the fact of the agreement being in writing dispenses Avith consideration only in the cases mentioned in cls. 1 and 3 of Section 25. Neither of these clauses, however apply; the latter being quite inapplicable and the former only referring to an instrument in writing registered and made on account of natural love and affection between parties standing in a near relation to each other, which does not appear to have been the consideration for the deed in question. The first Court rightly held that the onus of proving the second issue as aforesaid was on the defendant and holds that there was not a tittle of evidence to prove that plea in this respect. But unfortunately the lower Court proceeds to discuss the evidence for the plaintiff on the question of consideration; and the reasoning of that Court does not appear to mo to be satisfactory. It is unfortunate that the first Court had not before it the proceedings and decree in the suit of 1886, which I have above referred to. The case accordingly went up on appeal, but the appellate Court has not dealt with it, to my mind, in the way in which it should have been dealt with because in the first place it is evident from the judgment of the lower appellate Court that the learned Judge had in his mind and dealt with the case upon the principles applicable to a purchase by one member of a joint Hindu family from another, whereas the parties herein being Mahomedans the law applicable to Hindus cannot in any way apply to this case. That this is so is evident from many expressions of the lower appellate Court at pages 3 and 4 of the record. Moreover, the lower appellate Court has not considered the question whether any consideration for the deed was actually proved and if so what it was and I have no hesitation in saying that it is impossible upon the face of the judgments of either of the lower Courts to say what the consideration for the deed really was and it may fairly be said, I think, that the judgment of the lower appellate Court is based entirely upon the judgment in the said suit of 1886.