ISRI PROSAD Vs. RAI GUNGA PROSAD SINGH BAHADUR

JUDGEMENT

(1.) In this case the appellant is the plaintiff in a mortgage suit in which the respondents are defendants being the sons of the purchaser of two of the mortgaged properties. They need not be distinguished from their father and have been referred to throughout this appeal as defendant No. 4.

(2.) The suit was dismissed in the lower Court on the grounds that, the attestation of the mortgage-deed has not been proved and that the mortgage was not true and bona fide." Both points have been urged before us by the respondent. Whatever we may think of the first the second is that on which the respondent seeks, to establish his claim in the first place. We will, therefore, deal with it first.

(3.) The bond was executed on the 23 August 1893 by Musammat Sharbat Koer as guardian of Balmakund Das. He was the son of Janki Das who died before 1883 when Musammat Sharbat Koer became guardian, and who carried on some kind of banking or money-lending business. This seems to have failed and Balmakund at all events has now no resources of his own. When it failed does not appear but at the date of the execution of the bond it seems that the family must have been in some need. The respondent, i.e., defendant No. 4 had filed his suit on the 17 September 1892 against Balmakund and his co-sharers for Rs. 76,000 odd due on a mortgage-deed, which shows that his mortgage security was not worth enforcing; and his connection with this suit is that after obtaining a money-decree in 1894 he brought two of the mortgaged properties to sale and purchased them himself. The deed being executed under these circumstances we will first consider whether it has been shown to be fraudulent. The ground for the allegation, that it was so, is that no consideration passed, which shows that it was executed merely to protect the property in dispute from the claims of other creditors and particularly we may suppose those of the respondent. The consideration alleged in the deed is two-fold, first a debt due to the mortgagee of Rs. 1,239-13-6 due on a hat-chitta, secondly an advance of Rs. 1,760-2-6 made by the mortgagee to provide for the expenses of certain litigation. As to the first, of these, the debt of Rs. 1,239, it is suggested that it had no existence. We cannot accept this view, though the story told to prove it is by no means free from suspicion. The story of how it arose is told by Musammat Sharbat in her petition to the Sub-Judge of Darbhanga for leave to execute the mortgage as a guardian. According to this one Aghar Ali had deposited money with the Firm of Balmakund's father, her husband, on the security of a hat-chitta. This passed to Ali Khan his adopted son, and in his favour she executed a hat-chitta for 1/3 of the sum on the separation of Balmakund from his co-sharers. On the 27 March 1893, this Ali Khan transferred to the plaintiffs and as she could not raise the money when pressed she executed a new hat-chitta to them on the 27th March 1893, and at the time of the mortgage the amount due on this was Rs. 1,215-1-9. This is supported by a deed of gift dated the 13 September 1887, by, Aghar Khan to. Ali Khan comprising among other things a hat-chitta for Rs. 2,500 by Balmakund's father, and by a deed of sale dated the 22 March, 1893 whereby Ali Jan transferred a chitta from Musammat Sharbat for Rs. 1,250-1-9 to the plaintiffs together with another from the other co-sharers at only Rs. 14 less than their full value. The existence of the original debt on which Musammat Sharbat's hat-chitta is based seems to be proved by Agha Khan's deed of gift, and there seems to be no reason to doubt the genuineness of Ali Khan's deed of sale to the plaintiffs though it is impossible to suppose that the consideration is correctly stated. On the other hand none of the hat-chitta have been produced and only the lamest possible excuses have been given for their non-production. Also when Musammat Sharbat renewed the hat-chitta to the plaintiffs any claim that could be made on it was statute-barred. These facts make the transactions leading up to the last hat-chitta suspicions and we have no doubt that the true facts, of the case have sot been disclosed, as after the collapse of the original debtor-Firm the debt on the original hat-chitta must have been worth very little and yet it is throughout treated as being practically undiminished. We cannot, however, treat the debt as extinguished, and at the time of the mortgage it may have been of advantage to the mortgagor to have, it put an end to; and as she was. acting as guardian and with the leave of Co art we cannot enquire into. the sufficiency of the consideration.