MARWADI VANNAJI (DECEASED) Vs. DHRANGA RAO

JUDGEMENT

(1.) This second appeal arises out of a suit for recovery of possession on foot of Ex. A which purports to be a deed of conditional sale executed on 26 February, 1929, by defendants 1 to 3 and by the first defendant as guardian of his minor son the fourth defendant. Ex. A was executed in discharge of the amount due to the plaintiff on foot of a mortgage which the first defendant had already executed to him. On a suit brought to enforce that mortgage (O.S. No. 1 of 1926) the Court had held that the mortgage was not qua mortgage binding on the shares of the present 3 and 4 defendants in their ancestral property as it had not been given to secure an antecedent debt. The Court however found that the mortgage was supported by consideration. It also found that the right to apply for a personal decree was not barred by time but the application for a personal decree was directed to be postponed to a later stage, presumably till after the sale of the shares of defendants 1 and 2 as directed by the mortgage decree. Ex. A was executed at a time when some of the properties had been sold in execution of that mortgage decree and an application to set aside that sale under Order 21, Rule 90 was pending. No serious attempt has been made to show that on the merits the transaction evidenced by Ex. A was improper or prejudicial to the interests of the family or to the interests of the fourth defendant. It appears that on the execution of Ex. A the decree in O.S. No. 1 of 1926 was treated as discharged. An objection taken in this suit on the ground that satisfaction has not been formally entered up has rightly been disregarded by the Courts below.

(2.) Though Ex. A purports to be in terms of a sale and the plaintiff filed the suit as one for possession, the trial Court treated Ex. A as constituting a mortgage by conditional sale and accordingly gave only a decree for foreclosure. The fourth defendant appealed and claimed that his share should be excluded on that ground that Ex. A was not binding on his share. The learned District Judge has acceded to that contention because he was of opinion that the case was really governed by the provisions of or at least the principle underlying Order 32, Rule 7, Civil Procedure Code. I am not able to agree in this view.

(3.) I may at the outset observe that the learned District Judge is not correct in stating that the fourth defendant was exonerated by the decree in O.S. No. 1 of 1926. All that was held was that the mortgage qua mortgage was not binding on the minor but the plea that there was no consideration for the mortgage had been overruled and there was no suggestion that the debt, if true, was illegal or immoral. It is common knowledge that in circumstances of that kind, it is usual to pass a decree even against the minor sons of the mortgagor to the extent of a money decree against their interests in the joint family property. In this case, however for some reason or other, the application for the money decree, though filed even before the mortaage decree was passed, appears to have been by consent of parties postponed to be dealt with at a later stage. These facts certainly do not amount to an exoneration of the fourth defendant from liability for the debt. That is why, as I stated already, there is no serious suggestion that Ex. A is an improper transaction on its own merits.