Bhagwan Lal vs Rajendra Prasad Sahi and others

Dawson Miller, C.J.—In this case certain property belonging to Narayan Prasad Singh and other members of his family who are the first seven defendants in the suit was attached and sold in execution of a decree in favour of Bhagwan Lal Hajam, the defendant No. 8. The plaintiffs claimed that at the time of the attachment and sale they had a subsisting mortgage upon the property and petitioned the Court that the sale should be made subject to their mortgage. Their application was dismissed and the property was sold free from the encumbrance of their mortgage. They consequently instituted the present proceedings praying that the properties sold at the execution sale and purchased by Bhagwan Lal Hajam, the decree holder, should be declared subject to the encumbrance of their mortgage.

The trial Court found in favour of the plaintiffs and granted them the relief claimed. The defendant, Bhagwan Lal, the purchaser, has appealed from that decision.

Rajendra Prasad Sahi and others, the plaintiffs in the suit, are members of a joint family residing at Phatra in ''the Muzaffarpur district where they carry on business as zemindars and money lendars. The defendants 1 to 7 Narayan Prasad Singh and other members of his family, who may conveniently be referred to as the Singh defendants, are zemindars and cultivators residing at Jilanichak in the Patna district where at one time they owned considerable property. Bhagwan Lal Hajam, the defendant No. 8, who is the appellant before us, resides at Mahendru in Patna City. He belongs to the barber caste but also does some business in money lending. In the year 1892 the father of the first defendant, Narayan Prasad Singh executed a mortgage in favour of Bhagwan Lal''s father, hypothecating certain property other than that which is the subject matter of the present suit, to secure an advance of Rs. 1,000 carrying compound interest at 2 per cent, per mensem with quarterly rests. Ten years later in January 1902, a suit was instituted against the Singh defendants to enforce the mortgage. A decree was obtained and in execution thereof the mortgaged property was brought to sale in August 1903 and purchased by the decree-holder. The decree passed in that suit was appealed from by the Singh defendants but their appeal was dismissed by the High Court in May 1904.

The sale proceeds of the mortgaged property sold in execution proved insufficient to satisfy the decretal amount and interest which had rapidly accumulated at the high rate stipulated in the bond by the time the property was sold in execution. The mortgagee accordingly applied for, and on the 15th December 1906 obtained, a personal decree against the mortgagors for the unsatisfied balance amounting at that time to over Rs. 17,000. About three years later, towards the end of 1909, Bhagwan Lal, his father having died, first began to make efforts to execute this decree. After three unsuccessful attempts a fourth execution case was filed and registered on the 1st June, 1914. It was numbered 261 of 1914 and certain properties belonging to the Singh defendants (the judgment-debtors) were attached in that execution proceeding in June and July 1914. The properties so attached form the subject matter of the dispute in this case. They were subsequently sold in execution and purchased by Bhagwan Lal under circumstances presently to be Stated, and after certain events had happened which are material in considering the question for determination. The plaintiffs claimed title to these properties under a mortgage executed by the Singh defendants in their favour on the 9th March 1915. In the meantime, namely, on the 24th February 1915. Bhagwan Lal had filed a fresh application for executing that the execution case S. No. 201 of 1914, then pending, might be dismissed and that the new execution case might be considered as being to continuation of it. The application was heard the same day and the following order was passed:-"Fresh execution petition filed. Let this case be dismissed. The attachment made to continue. The petition filed to day to be taken as in continuation of this lease so no fresh notice under Order 21 rule 66 would be necessary." The new execution case was also registered on the 24th February 1915 as No. 51 of 1915 and on the same day an order was passed therein as follows "Attachment and notice under Order 21 rule. 66 need not be issued, as ordered in executing case No. 201 of 1914. Issue sale proclamation fixing 19th April 1915 for sale at 6 a.m. On the 9th March 1915, as already stated, the Singh defendants granted a mortgage of certain properties, including those which had been attached to Rajendra Prasad Sahi, the first plaintiff in this suit, to secure an advance of Rs. 25,000 repayable within two years and carrying compound interest at 1 per cent, per month with yearly rests. In May following Bhagwan Lal, for reasons which are not material, found himself unable to continue with his execution against the properties attached, and on the 17th May 1915 the execution case No. 51, of that year was dismissed for default and the attachment according (sic) to an end.

On (sic) 16th September 1916 Bhagwan Lal filed fresh execution proceeding the case being numbered 181 of l9l6. In March 19l7 the same properties were again attached and a sale proclamation was duly issued. The plaintiff, Rajendra Prasad Sahi, subsequently, in June 1917, applied under Order 21 rule 62 that the sale should be ordered to take place subject to his mortgage of the 9th March 1915. His application was heard together with the applications of certain other objectors and was dismissed on the 18th June 1917. The only reason assigned by the learned Subordinate Judge for dismissing the application was that there was nothing to show the bona fide character of the mortgage and that it looked strange that at that stage these persons should have come forward to put an obstruction in the way of the decree-holder. The properties were accordingly sold in execution of Bhagwan Lal''s decree on the following day and purchased by him for Rs. 14,000.

The plaintiffs have accordingly preferred this suit under provisions of Order 21 rule 63 claiming a declaration that the sale of the properties to Bhagwan Lal in execution case 181 of 1916 was subject to the encumbrance of their mortgage of the 9th March 1915.

The Singh defendants filed a written statement alleging that they had never denied the plaintiffs'' mortgage bond of the 9th March 1915, and that as the suit was not for recovery of the bond money, they were improperly made defendants and that no cause of action had accrued against them. Bhagwan Lal also filed a written statement impugning the bona fides and the validity of the plaintiffs'' mortgage bond on the ground that it was a collusive transaction between the plaintiffs and the Singh defendants and was fraudulent and without consideration and that it was merely a false and colourable transaction. He further pleaded that the suit was barred by the proviso to S. 42 of the Specific Relief Act; that it was executed for the purpose of defrauding him as a creditor in contravention of the provisions of S. 53 of the Transfer of Property Act, and further, that it contravened the provisions of S. 59 of the Transfer of Property Act and was on that account illegal and invalid.

The Singh defendants did not appear at the trial and have not been represented in this appeal. On behalf of the appellant it was argued in the first place that the plaintiffs'' mortgage bond had not been proved according to law as provided by S. 68 of the Indian Evidence Act and could not therefore be used in evidence, and, further, that even if that section had been complied with the evidence of the attesting witnesses called to prove execution was unreliable and contradictory and should not be accepted. The execution of the bond was attested by 6 witnesses. In the translation of the bond filed on the record they purport to have attested on the admission of the executants but the words used and translated as "on the admission of the executants" are "mukhate Mukrin" which might be more idiomatically rendered as "At the request of the executants." Two of the attesting witnesses Ram Lai Mahton and Nath Sahay were called at the trial on behalf of the plaintiffs. The former says he was a witness to the bond and that the executants signed in his presence and he verified the signatures of himself and some of the other witnesses who he said were present. In cross-examination he stated that he went away after attesting the bond and that two or three persons had already attested the bond before he went there but that two of them, namely, Narain Mahton and Nem Narain Singh attested the bond after he went there. In the next sentence he says "No other witness attested on that bond before me." This was relied upon as contradicting his previous statement that two or three persons had already attested the bond before he went there but the words "before me "are ambiguous and they may well be a literal translation of the Hindi expression which means "In my presence." Later on when further questioned he states that "Narain Mahton signed in my presence on the bond and after I signed it" and adds that "Nem Narain Singh had affixed his signature in my absence on that bond." This last statement would appear to be in conflict with what he had said before namely, that Nem Narain Singh, attested the bond after he went there. It must be remembered, however, that the witness was giving evidence of events which had happened five years earlier and it may be that his recollection of the names of the witnesses who actually signed in his presence was somewhat confused, or it may be that he was not very clear on the question put to him in cross-examination and even assuming that Nem Narain Singh signed in his absence the net result of his evidence would be that he and one other witness at least, Narain Mahton, were present when the bond was executed and appended their signatures as witnesses. The other attesting witness Nath Sahay who was called at the trial merely stated that he was a witness to the bond and proved his signature on it. He does not appear to have been asked any question in cross-examination in reference to this part of his evidence. It would perhaps have been better had the learned Subordinate Judge himself endeavoured to clear up the apparent discrepancy in the first witness''s evidence. The learned Judge accepted the evidence of these witnesses as sufficient to prove the execution of the bond and I do not consider that the criticism of their evidence is weighty enough to induce us to discard it as unreliable.

It was next contended that the mortgage of the 9th March 1915 granted in favour of the 1st plaintiff, having been granted at a time when the property was under attachment, was void as against all claims enforceable under the attachment by reason of the provisions of S. 64 of the Civil Procedure Code. In answer to this argument the respondents contended that there was no valid attachment in operation when the mortgage was executed and, secondly, even if there was a valid attachment at that time, it came to an end on the 17th May 1915 when execution case No. 51 of 1915 was dismissed for default. In support of their first answer on this point the respondents contended that the attachment made in June and July 1914 in execution case No. 201 of 1914 came to an end on the 24th February 1915 when that execution case was dismissed and that no proper attachment was made in the succeeding execution case No. 51 Of 1915 which was registered on the same day. It was argued that the dismissal of the earlier execution case was a dismissal for default and that under the provisions of Order 21 rule 57 of the CPC the attachment thereupon ceased and although the attachment was ordered to continue no proper notices of attachment were served and no further attachment was in fact made, and that it was not competent to the Court to effect a valid attachment in this maner. There is much to be said in support of this contention but it is not necessary to decide the point as the subsequent execution case No. 51 of 1915 was itself dismissed for default on the 17th May that year, and the foundation upon which the appellants claim to have priority over the mortgage disappeared as from that date. It is not upon the attachment wbioh at that date terminated that their title under the subsequent sale is based. The claim of the appellants is enforceable, within the meaning of S. 64, not under the attachment in execution case No. 51 of 1915 or the earlier execution case, but under the attachment made in execution case No. 181 of 1916 which was not instituted until after the respondent''s mortgage had come into operation. It was contended on behalf of the appellants that the mortgage was void within the meaning of S. 64 of the CPC against their present claim because it was a claim which might have been enforced under the earlier attachment which came into operation before the mortgage. In my opinion this is not the meaning of S. 64 which reads as follows:-

Where an attachment has been made, any private transfer or delivery of the property attached, or any interest therein, and any payment to the judgment-debtor of any debt, dividend or other monies, contrary to such attachment, shall be void as against all claims enforceable under the attachment.

If the claim ceases to be enforceable under an attachment relied upon as avoiding the alienation it seems obvious that there is no longer any claim enforceable thereunder and the section contemplates a claim which remains enforceable and not one which might have been enforced under an attachment which has since come to an end. The appellants'' claim in the present instance is no longer enforceable at all except under the attachment made in execution case No 181 of 1916 which came into operation after the mortgage. The attachment contemplated in the section is that under which the claim is enforceable but the appellants'' argument demands that the words "All claims enforceable under the attachment" should be read as "All claims of the attaching creditor enforceable under that or any subsequent attachment." I cannot read the section as including claims which have ceased to be enforceable under the attachment contemplated and upon this point the appeal fails.

It was next contended that the mortgage was made with intent to defraud or to defeat or delay the appellants as creditors within the meaning of S. 53 of the Transfer of Property Act and, further, that the mortgage transaction was a merely colourable transaction not meant to be acted upon between the parties to it. The two points raise separate considerations. S. 53 of the Transfer of Property Act seems to contemplate a transfer of property binding as between the parties to it but one which is voidable in the circumstances there contemplated. If, however, the transaction is merely colourable and not meant to be acted upon between the parties there is clearly no transfer at all and in a case like the present it would be merely a fraudulent attempt on the part of the respondents to avoid liability. The only argument urged before us in support of this part of the case was that the mortgage was merely a sham transaction engineered by the Singh defendants with the acquiescence of the plaintiffs with the object of defeating the execution of the appellants'' decree. The mortgage bond of the 9th March 1915 is to secure a loan of Rs. 25.000. It recites that the mortgagors under four previous bonds executed by them in the years 1904 and 1906 are indebted to the amount of Rs. 20,645 from which the mortgagees undertake to discharge retaining that sum for the purpose. The balance of 4,355 was stated in the mortgage to be necessary for payment of Government revenue, performance of the marriage of Babu Ram Ghulam Prasad Singh, a member of the mortgagors'' family and meeting the expenses in connection with law suits. That the earlier bonds executed in 1904 and 1906 existed has been amply proved. It is also proved that these were discharged by the mortgagees and the bonds returned to them not long after the execution of the mortgage in 1915 except in one instance in which payment was postponed until December 1917. The appellants contend that even the earlier bonds of 1904 and 1906 were merely colourable transactions made with their relatives or tenants in order to protect their property from the possible claims of creditors in the future and specially the claim of the appellants. They point out that it was not until after the appellants'' mortgage decree had been confirmed by the High Court in May 1904 that the Singh defendants began to alienate their property or create charges thereon. Had the appellants been able to shew that the Singh defendants in 1904 for the first time suddenly began to create charges upon their property, without any apparent reason for their doing so, except that they were largely indebted to the appellants we might perhaps be entitled to regard those transactions with a certain amount of suspicion; but it is clearly proved that ever since the year 1881 this family has been in financial difficulties and frequently borrowing and mortgaging their property as security for the loans, it is unnecessary to refer to these earlier transaction in detail but they were numerous and frequent and I am not prepared to hold that there was any thing unusual in the fact that further liabilities were incurred in 1904 and 1906 or that any suspicion could attach to those transactions upon the grounds suggested.

One matter, however, is strongly relied upon by the appellant and it must be admitted that it is a matter which entitles the Court to scrutinise the conduct of the Singh defendants with the greatest suspicion. I have already said that these defendants are shown to have embarked upon a course of borrowing since the year 1881. In 1904, in order to discharge some of their more pressing debts and save their property from forced sales in execution, they sold certain portions thereof for Rs. 38,000, by a sale deed dated the 9th October that year, to one Dhiraj Mahato with whom, they had on previous occasions had money lending transactions. Out of the purchase price Rs. 933 were paid in cash, the balance being retained by the purchaser to pay off the creditors and free the property from encumbrance. A representation appears to have been made by the vendors that the creditors were willing to remit a portion of their claims for interest and the sum retained by the purchaser was arrived at on this basis. There was also some undertaking to reimburse the purchaser for any excess payments he might have to make to free the purchased property from charges and encumbrances.

Dhiraj Mahto got his name recorded in the land Registration Department as proprietor but he found difficulty with the creditors with regard to the matter of interest. He further found certain charges and encumbrances which had not been disclosed. It also appears that the vendors got their names recorded in the survey and settlement operations, which took place shortly afterwards, with respect to some of the properties covered by the sale deed, and various disputes arose between them and Dhiraj Mahto over possession of the lands. He in fact soon discovered that in purchasing the property he had also acquired a fruitful crop of litigation. Many suits and proceedings both civil and criminal ensued. These culminated in 1914 when after Dhiraj Mahto''s death his family brought a suit against the Singh defendant for a declaration of their title to the purchased property and for confirmation of possession. In that suit the defendants raised many pleas and envoured in every way they could to preserve their property. Amongst other things they pleaded that the sale deed of 1904 was a farzi transaction made with Dhiraj, who they alleged was their servant, with the object of defeating the claims of creditors. This fact is strongly relied upon as proof that the Singh defendants were unscrupulous and unprincipled in their dealings with their creditors and that the present mortgage transaction of 1915 was only another instance of their dishonest conduct. I am quite prepared to concede that the Singh defendants, whether the plea then raised be true or false, stand self confessed either as persons whose word is not to be trusted or whose conduct is shewn to have been tainted with dishonesty, but this does not prove that the plaintiffs were either so lacking in a sense of honesty as to lend themselves to a palpably fraudulent transaction or so foolish as to trust those who were admittedly not to be trusted for it is abundantly proved that the plaintiffs in fact discharged the debts to pay off which their mortgage transaction was effected.

The suit of 1914 brought by Dhiraj Mahto''s descendants was decided by the additional Subordinate Judge of Patna in 1916 in a long and careful judgment in which the whole of the previous dealings of the Singh family with their property were discussed. The learned Judge found that the sale deed of 1904 in favour of Dhiraj Mahto was a valid and bona fide document executed for consideration and that Dhiraj Mahto, so far from being a servant and creature of the Singh family who lent himself to a farzi transaction to save their property, had no connection with the family except as a creditor, and had in fact discharged the debts out of the consideration money. The plaintiffs in that suit however did not recover the whole of the property claimed as it was proved that in one of the many disputes which arose between the parties, after the sale, Dhiraj Mahto had, by way of compromise in 1909, reconveyed some of the properties claimed to lone Parshidh Narayan singh the nominee of the Singh defendants in consideration of Rs. 10,000, no doubt less than their value. This compromise was disputed by Dhiraj Mahto''s heirs but the point was decided against them. It will be observed that in that case, just as in the present, a transaction which turned out to be perfectly valid was challenged as a farzi transaction. The plea however put forward in the previous case by the defendants themselves did not avail the defendants. In the present case the plea is put forward by one of their creditors against another and it is not supported by the Singh defendants. I do not think the fact that the Singh defendants on a previous occasion endeavoured to protect themselves under a false plea, which even if true did them no credit, is sufficient in itself to lead to the conclusion that the present transaction was one of a fraudulent nature. That the Singh defendants were in want of a certain amount of cash for paying revenue and to meet other expenses is hardly surprising, and it is proved that the marriage of Ram Gulam which was one of the reasons for requiring cash actually took place. It is also shewn that they had to meet expenses of litigation. With regard to the balance of over Rs. 20,000, this was required to pay off four creditors named in the bond.

Rs. 375 were due to Nemdhari Mahto under a usufructuary mortgage of 3 bighas of land in manza Chirayia Deyal granted in 1904. Nemdhari was called as a witness and proved payment to him by the plaintiffs in June 1915. The receipt is endorsed on the bond which was delivered up to the plaintiffs on payment. It was produced by them in evidence.

Rs. 14,000 were to due to Jagdam Prasad Singh under a mortgage granted in July 1904 over a 4 pies share in Mauza Akbarpur to secure a loan of Rs. 1,300. The rate of interest was high; 2 per cent, per month compound with quarterly rests, as in the case of the appallant''s mortgage. This emprovident family do not seem to have been very particular as to the rate of interest at which they borrowed. Jagdam the mortgagee was dead, but his brother Janki Prasad Singh was called and proved that the bond was paid off by the plaintiffs in December 1917. The bond was produced by the plaintiffs with the discharge endorsed thereon. The greater part appears from the recitals to have been borrowed to discharge previous loans and the balance Rs. 375 for household expenses. He was in no way related to the Singh defendants and there seems no reason why the transaction with him should be regarded with suspicion. It is urged that if the transaction was genuine he would have sued on the bond before it was actually paid. He says he did not do so because the defendants generally paid out of Court. His evidence as to the payment of the bond is corroborated by Jadu Singh another witness who was present at the time.

Rs. 3,270 were due under a mortgage granted to Harikishen Mahton in February 1906 over a 4 pies malguzari milkiat interest in mauza Akbarpore to secure a loan of Rs 1,500. The interest was in this case 2 per cent, per month simple interest. The sum was taken to discharge a previous loan of Rs. 1,200 which with interest had amounted to Rs. 1,380 and the balance was taken in cash. The plaintiffs proved payment of this bond to Harikishun in April 1915 through their servant Nath Sahai. The bond was produced with the endorsement thereon.

The last bond was a mortgage dated the 19th April 1906 of shares in 5 villages in favour of Sham Keshwar Prasad Singh to secure a loan of Rs. 600 carrying compound interest at Rs. 2/8/- per cent, per month with half yearly rests. The amount due was Rs. 3,000. The money was borrowed to provide for the daviragaman of a sister of Narayan Prasad Singh. Badri Singh a son of the mortgagee proved the transaction and the subsequent payment by the plaintiffs. The bond was produced shewing the discharge endorsed thereon.

The plaintiff Rajendra Prasad was also called and supported generally the case put forward by him.

There is no evidence on the part of the appellant to discredit this evidence except a statement by him that he was told by the defendants'' karpardaz that he had committed such a fraud that there would be difficulty in finding the truth and that another man named Khedu told him that all the deeds to which I have referred were fraudulent. He admits he made no enquiries from the creditors whose claims were discharged and he did not call either of the two persons named. The learned Judge did not place any reliance upon this part of his evidence. He thought it highly improbable that if the karpardaz was responsible for a fraud intended to deceive the appellant he would disclose it to his victim. I think the learned Judge rightly appreciated the value of this evidence.

We have been urged however to treat the mortgage in favour of the Singh defendants as a collusive instrument on the ground that there are may suspicious circumstances which amount almost to proof of fraud. It is asked why should the Singh defendants be anxious to pay off Nemdhari and the other creditors who had not pressed their claims when the appellant had a decree for Rs. 17,000 carrying high interest in addition to what he already recovered by sale of the mortgaged property, I confess I can see nothing surprising in the defendants'' conduct. They could hardly be expected to have any tender feelings towards the appellant who had already done very well out of his loan of Rs. 1,000 carrying high interest. What the total amount due to him was when he sold the mortgaged property in 1903 has not been disclosed, nor does it appear in evidence what the mortgaged property fetched. We do not know however that after giving credit for the sale proceeds he still had an unsatisfied claim of over Rs. 17,000. That the defendants should endeavour to discharge the debts due to their other creditors by a mortgage of, their remaining property before the appellant could get a lien upon it is only human nature. Moreover the sum advanced was probably a better bargain for them than if the property had been attached and sold in execution. If however, the transaction was a genuine one the mortgage cannot be impugned as they had a right to prefer one creditor to another.

It is next urged that the sum advanced, namely, Rs. 25,000 was much more than the value of the property, which indicates that the transaction was a sham. In support of this it is pointed out that the appellant himself in his last execution case purchased the same property or the greater portion of it for Rs. 14,000. This argument has little force when it is remembered that the appellant purchased at an auction sale in execution of his own decree and the property purchased at that sale was valued by the Court at Rs. 21, 980 based upon a road cess return, which is not the best class of evidence, whereas the property mortgaged included in addition a 2 anna share in two other villages the value of which although not proved may have been considerable. Moreover if the mortgage transaction was merely colourable it is difficult to see why the consideration should have been placed at an unreasonable figure. It may also be pointed out that the sale to the appellant in execution was challenged by the judgment-debtors and the case went on appeal to the High Court where the appellant compromised and agreed to give up 2 out of 5. villages purchased. It may, therefore, be assumed that he was satisfied with his bargain in getting 3 only of the villages for Rs. 14,000.

The next matters called to our attention are that the mortgaged properties or most of them were at the time of the mortgage of the 9th March 1915 the subject of a claim by the heirs of Dhiraj Mahto in the suit to which reference has already been made and which was not decided until the following year, and further that the bulk of the mortgaged properties were in fact then under attachment by the appellant himself in the execution case No. 51 of 1915 which had not at that time been dismissed for default. No doubt if the plaintiffs had full knowledge of these claims and believed them to be formidable it would be a matter of surprise to find theih advancing money on so precarious a security. But everyone including the appellant himself who had attached the properties appears to have been aware that those claimed by Dhiraj Mahto''s heirs in their suit then pending, in so far as they are identical with those in the mortgage, had been reconveyed by Dhiraj in 1909 under the compromise already mentioned and belonged to the Singh defendants who were in fact in possession. The appellant himself had no doubt as to the defendants'' right to them. Rajendra Prasad Sahi, the karta of the plaintiffs'' family, would appear to have left the business transactions in the hands of his agent Nath Sahai. They both gave evidence at the trial. The former had very little knowledge of the material facts but was advised by his agent. Nath Sahai made enquiries when the negotiations for the mortgage began some 4 or 5 months before the date of the mortgage. He ascertained that the villages to be mortgaged had been reconveyed by Dhiraj Mahto to Parsidh Narayan and that the defendants were in possession. He went to the villages and saw the village papers and the revenue and the cess receipts. He also saw the sale deed in Parsidh Narayan''s favour. He also enquired at the Collectorate and ascertained that there was no attachment on those villages in the Collector''s books. It is argued that this cannot be true, but in the absence of any evidence as to what the Collector''s books would shew, there is no reason why the evidence should not he accepted. It will be remembered that the execution case in which the attachment was first made was dismissed on the 24th February 1915 and no fresh notices were sent to the Collector. There seems no reason why after that date any notice of attachment should be found at the Collectorate and it would be dangerous to reject the evidence of Nath Sahai on mere suspicion when the appellant himself could hare put the matter beyond doubt by ca] ling the Collector to produce his books.

A few other matters of minor importance or which are not substantiated by the evidence were also relied upon by the appellant in argument on this part of the case. It is pointed out that the plaintiff Rajendra Prasad Sahi and the defendant Narain Prasad Singh are relations and therefore likely to assist each other in a collusive transaction. It is true that they are connected by marriage. Rajendra''s mother and Narain Prasad''s wife are sisters, but their husbands belong to entirely different families which live in different parts of the province many miles apart. It is sufficient to say that it would be in the highest degree dangerous to treat with suspicion business transactions between relations even more nearly connected than the parties in the present case or to found any presumption of mala fides upon such slender grounds. It is also said that two of the properties mortgaged to Sham Keshwar in 1906 had already been transferred to Dhiraj Mahton in 1904, but the interest mortgaged was a share in the malikhana milkiat interest of the two villages, in the one case 4 annas odd, in the other case 2 annas odd, whereas the property sold to Dhiraj was 8 annas share in each of the name two villages. There is nothing to shew that the shares were the same or even that the interest was the same and no cross-examination was directed to the point. Again with regard to Akbarpur a 4 pies share in which was mortgaged to Harikishen Mahto in 1906, to which reference has been made, it is pointed out that one Nathuni Sahu had purchased a 9 pies share in this village from the Singh defendants in execution proceedings in 1903 and as they had no interest left, the mortgage to Harikishen must have been a bogus transaction made in order to create a fictitious debt for future purposes but there is nothing to shew that this was their only interest remaining in that village. In fact what evidence there is points the other way as it appears from the judgment in Dhiraj Mahto''s case that the family had an 8 annas share in Akbarpur still in their possession in 1906.

On the whole although there are circumstances which give rise to a certain amount of suspicion they are not in my opinion of sufficient weight to entitle us to discard the whole of the evidence as to the payment of the debts to the defendants'' creditors out of the mortgage money retained for that purpose by the plaintiffs. If these creditors were paid off it may be said to conclude the matter, and for the reasons already given I am not prepared to differ from the conclusions of fact arrived at by the learned Judge who saw the witnesses and accepted their evidence.

The last point taken before us was that the suit being one for a declaration only, no relief should be granted as the plaintiffs had not sought to enforce their mortgage and the provision to S. 42 of the Specific Relief Act was a bar to such a claim. This point was not seriously pressed and the short answer to it is that a suit brought under Order 21 rule 63 of the CPC is a special remedy granted in special circumstances and is not governed by the proviso to S. 42 of the Specific Relief Act.

In my opinion this appeal should be dismissed with costs.

Foster, J.

I agree.