RAJAB ALI CHOWDHURY Vs. HEDAYET ALI CHOWDHURY

JUDGEMENT

(1.) The plaintiff and the defendants in the present suit are residents of Chittagong, who were carrying on business at Rangoon. In 1898 the business of the plaintiff and his brother, defendant No. 5, failed and it is alleged that he thereupon under the advice of ISTur Ali, the predecessor of defendants Nos. 2 and 4, paid Nur Ali a sum of Rs. 50,000 out of his own pocket for the purpose of settling with the creditors of the joint business. In 1899 the plaintiff and his brother fell out and the latter declined to contribute his share of Rs. 50,000 thus paid by the plaintiff. The plaintiff admits that he thereupon on the 5th June 1899 at the instigation of Nur Ali executed in favour of Nur Ali a collusive mortgage-bond for Rs, 67,000, in which he gave as security the joint ancestral properties of himself and his brother, signing the bond on behalf of himself and also on behalf of his brother upon the authority of an alleged power-of- attorney. Being subsequently advised that the power-of-attorney had ceased to be operative after the dissolution of the partnership between the plaintiff and his brother and a mortgage- deed executed after such dissolution was not binding upon his brother, the plaintiff again at the instigation of Nur Ali executed a collusive promissory note for Rs. 5,000 in favour of Nur Ali on the 10th June 1900 on behalf of himself and his brother. In this document also the plaintiff signed for his brother as his duly constituted agent, and his case is that it was intended that Nur Ali should bring a test suit upon the promissory note and in the event of obtaining a decree against both the paintiff and defendant No. 5, should execute the decree against the defendant No. 5 alone. A suit was next to be brought upon the mortgage-bond and a similar procedure was to he adopted in respect of it in execution. The plaintiff does not deny that his scheme from the outset was to defraud his brother. But all did not go smoothly. The plaintiff returned to Chittagong and was away from Rangoon for nearly three years. It is alleged that during his absence and without any notice to him Nur Ali in 1903 transferred the promissory note to the first defendant, Hedayet Ali. Hedayet Ali then sued upon the note and on the 25th November 1903 obtained a decree against the plaintiff alone. Tlie decree was subsequently transferred to Chittagong for execution and on the 17th August 1907 attachment of the plaintiff s immoveable property was made in the Chittagong District. The plaintiff thereupon brought the present suit in the Court of the Subordinate Judge of Chittagong on the 6th December 1907 praying for the following reliefs.

(2.) 1. That the decree in Suit No. 86 of 1903 of the Chief Court of Lower Burma on the basis of the said on demand-note, which is without consideration and ineffectual, be declared to be collusive, fraudulent and ineffectual and not binding upon the plaintiff and the said decree be declared null and void and incapable of execution against the plaintiff.

(3.) 2. That an order be made for whatever other relief the Court thinks fit to grant under the circumstances of the case. Separate written statements were filed on the one hand by defendant No. 1, Hedayet Ali, and on the other by defendants Nos. 2-4, the sons of Nur Ali who have succeeded to his estate upon his death. The Subordinate Judge found in the plaintiff s favour upon the issues relating to jurisdiction and limitation and res judicata, but he found against the plaintiff on each of the most important issues which run as follows: