BALAJI Vs. PANDURANG

JUDGEMENT

(1.) THE plaintiff Balaji came to Court claiming on a mortgage-deed, dated

(2.) ND June 1921, for Rs. 200 executed by the first two defendants-respondents Pandurang and Govind; under it a house situated in Nagpur was hypothecated. Defendant 1 admitted execution and the receipt of consideration under the mortgage-deed. The case proceeded ex parte against defendant 2. Defendant-respondent 3, Sadasheo, was impleaded as being in possession of the property. It is with his case that I am now concerned. His position in the first Court and throughout has been that the house belonged exclusively to defendant 2 and that it was attached and auctioned by the criminal Court in a criminal case against that defendant and was purchased by him (defendant 3) free of encumbrances. He, therefore, claimed that he was not bound to redeem the plaintiff's mortgage and he further alleged that the mortgage was a fictitious and void one. 2. The first Court found that the mortgage had been executed and duly attested but that consideration had not passed thereunder. The Subordinate Judge further held that the mortgage was executed for an unlawful object with a view to defeat the claim of creditors and that in short, the deed in question was a fictitious and void one. On these findings he dismissed the suit against all the defendants. The plaintiff appealed to the Court of the Additional District Judge, Nagpur, who confirmed the findings of the first Court and dismissed the appeal. The plaintiff has now come up to this Court on second appeal.

(3.) THE next point urged is that the lower Courts should have necessarily determined the vexed question in the case as to whether the house belonged solely to, defendant 1, or jointly to defendants 1 and 2, and it has been urged in this connexion that, in the latter event, the plaintiff's claim would have been, entitled to succeed at least to the extant of one-half. In the peculiar circumstances of this case, however, I am unable to see that it was essential to determine this question. Once the matter of the fictitious or real nature of the mortgage had been agitated, a decision to the former effect would necessarily imply the failure of the whole of the plaintiff's suit. The main matter agitated on appeal has, however, been with reference to the nature of the mortgage in question. It has been urged that the judgment of the Additional District Judge in this connexion is a faulty one, that only general reasons are advanced in favour of the view taken and that there has, in any event, been insufficient proof that the mortgagee was a party to the design. I am unable, however, to accept these contentions. It seems to me that both the lower Courts have given very weighty reasons indeed in favour of the view that the mortgage was undoubtedly a fraudulent and fictitious one. Only a few days after its execution did the prosecution of defendant 2 arise and it is fairly clear that, before its execution, he had admitted having committed defalcations.