RASH MOHAN SAHA Vs. KRISTO DAS ROY

JUDGEMENT

(1.) This appeal arises out of a suit brought on a mortgage-bond. The mortgage-bond was executed by defendants Nos. 1 to 3 in favour of the plaintiff on the 16th Falgoon 1318, to secure the payment of a sum of Rs. 16,000. The defendants Nos. 4 to 6 in the suit were the purchasers of the mortgaged properties in execution of a money-decree obtained by them against the mortgagors subsequent to the execution of the mortgage-bond. The learned Subordinate Judge has found that in fact defendants Nos. 1 to 3 owed to the plaintiff on the date of the bond the amount secured thereby, and he has made against them a money-decree for the amount claimed in the suit, a sum of Rs. 6,000. He has dismissed the suit as against defendants Nos. 4 to 6 on the ground that the bond in fact represents a fraudulent preference given by defendants Nos. 1 to 3 to one creditor, namely, the plaintiff, over others, or in other words, that the bond was executed not so much to secure re-payment to the plaintiff as to protect the defendants Nos. 1 to 3 and to enable them to retain their properties against the claims of other creditors.

(2.) In appeal, it is contended before us that even on his own findings the learned Subordinate Judge s decision cannot be upheld. On the other hand the respondents seek to support his decision by contending, firstly, that in fact on the day on which the bond was executed there was nothing due by defendants Nos. 1 to 3 to the plaintiff, and secondly, by contending that even if there was such a debt due yet by the bond a benefit was reserved to the debtor, it representing or concealing merely a secret trust in favour of the mortgagors.

(3.) As to the question of the debt it is not disputed that as a matter of fact defendants Nos. 1 to 3 had transactions with the plaintiff for a series of years extending from 1307 to 1318. But it is contended that there was no arrangement made that; interest should be charged by the plaintiff or paid by the defendants. We have been referred to many passages of the evidence in support of that contention, but we find there is ample oral evidence in support of the agreement to pay interest. No doubt there are some discrepancies in that evidence as to the existence of what is spoken of as Falat books, and no doubt it is the case that the Falats spoken of as kept by the firm of Pitamber and Nilamber from which the moneys were actually taken for the benefit of the defendants have not been produced. Bat simply because the plaintiff and the defendants are relations, we see no improbability in the plaintiff s claiming and requiring them to pay interest on advances made to them. The oral evidence on the point is supported by many entries in the plaintiff s books of account, and is also further supported by the fact that the plaintiff himself had apparently to pay interest to the firm from which the money was actually taken. It has been suggested that that firm and the plaintiffs firm are really one and the same. But no doubt though there is a "close relationship -between the partners, it cannot be said, and in fact there is no evidence to show, that the businesses are not separate and independent, for these reasons we agree with the learned Subordinate Judge in holding that on the day the bond was executed there was a sum of Rs. 18,000 and odd due by the defendants Nos. 1 to 3 to the plaintiff and that after granting a remission of a sum of Rs. 2,000 the plaintiff obtained the bond in question for the sum of Rs. 16,000 due and owing to him.