JUTHAN RAM DUBEY Vs. RAMUN RAM TEWARI

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of an action claiming possession of certain property under a sale deed of 10 August 1928. It may be mentioned, although I do not propose to go into great detail, that the interest in the property, the subject-matter of the sale deed, is a six annas interest. It appears from the facts proved in the Court below that a third party had one anna four pies interest in this property which was sold to the plaintiff on 22 November, 1922 for a consideration of Rs. 1500. It is not material perhaps to mention, but I state the fact that this third party was unwilling to sell this property to the defendant and this sale to the plaintiff in 1922 was merely a part of the machinery by which the interest in the one anna four pies came ultimately into the hands of the defendant, which it did on 19 February 1924 by a sale deed executed by the plaintiff to the defendant for a consideration of Rs. 1600.

(2.) Now in order to discharge the debt incurred by the defendant under this sale deed he entered into a mortgage to the plaintiff. Ultimately the mortgage debt amounted to Rs. 2375. Then comes the sale deed of 10 August 1928 by which the six annas interest was sold to the plaintiff, the consideration being Rs. 2375, the mortgage debt; Rs. 1000 a loan by the plaintiff together with interest Rs. 285, in all Rs. 1285; and a further sum paid in cash of Rs. 340. The defence substantially to this claim was that both the sale deed of 10 August 1928 and the mortgage were fictitious transactions.

(3.) The Judge in the Court below has held that the sale of one anna four pies interest to the plaintiff was a genuine sale, that the mortgage of the 6 annas interest was genuine, but that the sale of the 6 annas interest to the plaintiff was a fictitious transaction, and expressed itself in these words which are perhaps important to notice: All these facts and circumstances lead me to conclude that Ex. 2 is a farzi deed executed by defendant 1 in favour of the plaintiff to save the properties from the clutches of the former's creditor, Ram Lal Tewari.