MT SARASWATI KUAR Vs. MAHABIR PRASAD

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for a declaration brought by a judgment-creditor Mahabir Prasad against the son and grandson of his original debtor Jai Gobind. On 20 May 1914, Jai Gobind executed a hypothecation bond under which four-annas share is two villages were mortgaged to the plaintiff for Rs. 600 carrying interest at 2 per cent, per month compoundable with yearly rests. On 20 December 1922, the creditor brought a suit for recovery of the amount due to him but in the plaint he stated that for the present he would be content with a simple money-decree. The suit was filed just a few days before the closing of the Court for the Christmas holidays. It was filed at the headquarters at Azamgarh. On 3 January 1923, Jai Gobind executed a deed of gift of the zemindari properties other than those covered by the mortgage-deed and this document was registered at Deogaon where the parties resided. It was in favour of his own wife and the reason given for the transfer was that there was ill feeling between his sons and his wife and he apprehended that after his death his sons would not abide by an oral gift which he had made about a year ago and would interfere with her possession and that, therefore, it was desirable that the transaction should be reduced into writing. Jai Gobind died soon afterwards sometime towards the e March, 1923. His two sons and grandson were brought on the record as his representatives and on 12 November 1923 a simple money-decree was passed in favour of Mahabir Prasad for Rs. 4,000 odd. The decree-holder executed his money-decree by attachment of the property covered by the deed of gift and not what had been previously mortgaged to him. An objection was raised on behalf of the widow of Jai Gobind named Mt. Saraswati, the present appellant, and the property was released from attachment. The creditor has accordingly instituted the present suit for a declaration that the deed of gift is not binding on him.:

(2.) In the plaint the plaintiff alleged that no gift was virtually intended, nor was Jai Gobind legally entitled to make a gift of the property, nor could such transfer which was without consideration be effective as it was with a view to evade payment of the decretal amount and to cause loss to the creditor. It is clear that in the plaint the plaintiff jumbled together the three points of attack which he proposed to adopt, viz.,,, that the document was fictitious, that Jai Gobind had no power to make the gift, and that the transfer was with intent to defeat and delay his creditor. The defendant, Mt. Saraswati, resisted the claim and pleaded that the gift was in every way valid and binding. The learned; Subordinate Judge has decreed the claim. Issue 1 which he framed on the main questions of fact which arose in the case was a composite one and it lumped together all the three distinct points which arose in the case. Briefly, speaking, the first issue was whether the deed of gift, was a farzi and fraudulent transaction with intent to defeat the plaintiff's decree. The finding of the learned Subordinate Judge also shows that he has not clearly kept in his mind the distinction which exists between these three different characters which the deed of gift might have assumed. If a deed is farzi and fictitious it is merely waste paper and no title passes to the ostensible transferee. The property continues to vest in the donor and is obviously liable to attachment and seizure by his creditor. If the transfer is not fictitious, but is one which a member of a joint Hindu family is not competent to make, it is voidable at the option of the other members of the family, and will stand so long as it has not been avoided. Even if a transfer is neither fictitious nor voidable in that sense, it may be capable of being avoided under Section 53, T.P. Act, if it was made with intent to defeat or delay a creditor. These three points and the legal consequences of the findings on these points had to be dealt with separately. The learned Subordinate Judge unfortunately has not adopted this course and it is, therefore, doubtful how far he really appreciated., the distinctions which existed.

(3.) There is one finding of fact arrived at by him which must be accepted. He has held that this property which had been transferred by the mortgage-deed of 1914 was no doubt sufficient to discharge the entire decretal debt. Apart from the oral evidence which has been printed there are some sale-deeds on the record which show that a one-anna share in Rasulha was sold for Rs. 1,000 and one third of six annas eight pies in Tahirpur was sold at auction for over Rs. 1,500. Thus the value of the two four-annas shares would be at least between Rs. 6,000 and Rs. 7,000 and the decretal amount was less than Rs. 5,000.