N M MUTHUVASU CHETTIAR Vs. VELUMURUGA NADAR

JUDGEMENT

(1.) This appeal arises out of a suit for the recovery of money due under a mortgage bond, Ex. A, executed on 5 October, 1929, by the first defendant and the second defendant in favour of the plaintiff. Defendants 1 to 4 are members of a joint Hindu family, the first defendant being the father and defendants 2 to 4 his sons. The fifth defendant was impleaded, as a document Ex. I had been executed by the first defendant in his favour on 7 October, 1929, and according to its tenor it purported to be a puisne mortgage. But the fifth defendant admitted that it was a nominal transaction and he has accordingly taken no part in the suit except that he was examined as D.W. 1 and has deposed not merely to the fact that Ex. I was a nominal transaction but also to a conversation that took place between himself and the first defendant about the time when Exs. A and I were thought of. The first defendant raised some objections in respect of certain portions of the amounts claimed by the plaintiff to be due. But, on these points, he has acquiesced in the finding of the lower Court. The real contesting defendants were defendants 6 and 7 who had obtained a money decree against the first defendant in O.S. No. 43 of 1929 and had attached the properties hypothecated under Ex. A in execution of their money decree. As attachment was effected only in 1933, the claim under Ex. A would have had precedence, if the mortgage was otherwise valid. Defendants 6 and 7 contended that Ex. A only evidenced a nominal transaction and that, in any event, it had been executed to defraud the sixth defendant and other creditors of the first defendant.

(2.) On the contention of defendants 6 and 7, the third issue in the case was raised. The learned Subordinate Judge was of opinion that Exs. A and I had been brought into existence in pursuance of a common object to help the first defendant as against his creditors including the sixth defendant, and that Ex. A was not supported by consideration even in respect of the two amounts of Rs. 1,600 said to be due from the first defendant to the plaintiff and of Rs. 2,300 said to have been advanced by the plaintiff to the first defendant contemporaneously with Ex. A. He felt no doubt that Ex. A had been brought into existence to be used as a shield against the sixth defendant in respect of the money claim he had against the first defendant and in respect of which the suit O.S. No. 43 of 1929 was instituted within a month after the date of Ex. A. In the result he gave a mortgage decree against defendants 1 to 4 for the sums that he found to have been actually advanced by him and declared the plaintiff's right under Ex. A to be subject not merely to the pre-existing mortgage under Ex. II in favour of the seventh defendant but also to the rights of defendants 6 and 7 under the attachment made by them in execution of the decree in O.S. No. 43 of 1929. It is against this part of the decree which makes the plaintiff's rights subject even to the attachment in O.S. No. 43 of 1929 that this appeal has been preferred by the plaintiff.

(3.) His Lordship then discussed the evidence and concluded.