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TMI Blog1972 (8) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... red into several transactions after the death of his father. He purchased 25 equity shares and 34 preference shares of Tata Power Co, Bombay during the years 1919 and 1920. In April 1919 he purchased land at Ville Parle, Bombay, tor Est, 4.067. He purchased a car in April 1929 tor ₹ 8,000/-. He also purchased some Jewellery in the shape of diamonds in August 1920 for Its, 6924/-. Towards the end of the year 1920 a suit was filed by one D. S. Madan of Bombay against the respondent in Bombay High Court for sum of Rupees. 9,393/12/0. 3. The respondent started transferring properties held by him 1B favour of Smt. Dhanta Devi, his step mother in the year 1921. In February 1921 he claimed to have transferred 50 shares of E.D. Sasoon Co, in her favour. On April 4, 1921 admittedly he transferred the car in favour of his step mother vide Ext, 255. It would appear from the copy of the Judgment Ext. A-278 that a debt of ₹ 3,000/- due in favour of the respondent against, Kalyan Mal V. Dhanda was transferred to Smt. Dhanta Devi by making the debtor execute a pro-note for ₹ 3200/ in her favour on the basis of which she filed a suit, against the debtor which was decreed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction petition under Order 21, Rule 58 C.P.C. in the executing court that the equity of redemption had bean sold to him on November 34, 1925 and it should not be sold in execution of the decree of D. S. Madan. This objection was accepted by the executing court in May 1927 and the attached properties were released from attachment. On July 14, 1928 Har Chand executed a release deed in favor of Smt. Dhanta Devi stating that the consideration for the sale deed Ext. 8 dated November 23, 1925 executed by the respondent in his favor was in fact paid by Smt Dhanta Devi to the respondent sad sot by him and that his name had been mentioned as purchaser in Ext. 8 falsely and fictitiously and that he had no right or interest whatsoever in the three properties, namely, Krishna Bhavan' at Ajmer, the Ville Parle land at Bombay and the plot; at Delhi and that Smt. Dhanta Devi was the real owner of the three. properties covered by the sale deed. In August 1928 the Tata Power Com pany adjusted satisfaction of the decree for ₹ 42,200 odd against the respondent by forfeiture of the shares. 5. Smt. Dhanta Devi died in April 1948. The suit out of which the present appeal has arisen was fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions void? For the purpose of deciding whether the usufructuary mortgage deed was a sham transaction the trial court went quite rightly into the question of consideration. It was found that the respondent needed money during the period 1919 to 1921 and he must have executed two promissory notes mentioned in the usufructuary mortgage deed Ext. 7. The trial court next proceeded to examine the evidence relating to the capacity of Smt. Dhanta Devi to make advance to the tune of ₹ 25,009/- and came to the conclusion that she had the necessary funds for making the said advances. As regards the possession of 'Krishna Bhavan' the trial court was of the view that Smt. Dhanta Devi had allowed the respondent to occupy certain portion of 'Krishna Bhavan' for his residence and to let out certain portions in order to obtain money for his maintenance as he had fallen on bad days. The trial court finally held that the mortgage deed dated May 20, 1921 was for consideration and was not a fictitious and a sham document. As regards the other documents, namely, the sale deed deled November 23, 1925 and the release deed dated July 14, 1928 Ext. 9, it was held that these document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jority Judges of the High Court that no consideration had passed from Smt. Dhanta Divi to the respondent for the usufructuary mortgage. Mr. Gupta has relied on the finding of the trial court that Smt. Dhanta Devi had enough funds for making the advances' amounting to ₹ 25,000/- for/which promissory notes were executed by the respondent and which formed the consideration for the usufructuary mortgage. 8. We have given in detail the various transactions entered into by the respondent as also the transfers made by him most of which were in favor of Smt. Dhanta Devi before and after the usufructuary mortgage deed was executed in May 1921. There can be no manner of doubt that the respondent was carrying on speculative transactions at the Bombay Stock Exchange. It appears that either at the initiative of Smt. Dhanta Devi which is not very likely or on his own the respondent took the precaution of transferring a number of his assets including the car to Smt. Dhanta Devi apparently to escape the payment of debts to the creditOrs. The suit of Madan was already pending and the respondent was fully aware that he would ultimately have to pay the monies of the Tata Power C. Ltd., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to believe that the respondent would have entered into such a transaction in view of his financial position in the year 1921. It was equally not likely that a person dealing in shares who would require ready money would lock up his assets like the property in dispute in a transaction which was such that the mortgage could not. be redeemed before the expiry of the period of sixty years. The mortgage, therefore, was executed only with an ulterior purpose, it being wholly fictitious. 10. The other question, which fell to be examined, was the question of possession over 'Krishna Bhavan'. There was a good deal of evidence which was discussed by Jagat Narain J. showing that the respondent was in possession of 'Krishna Bhavan' as owner even after the execution of the usufructuary mortgage and Smt. Dhanta Devi occupied merely a portion of it for her residence. The case put forward by the appellant in the plaint as well as in his statement in court that Smt. Dhanta Devi was realizing rent from all the tenants had been proved to be false. We have been taken through some of the documentary evidence on the point of possession and it appears to us that the view of Modi J., ..... X X X X Extracts X X X X X X X X Extracts X X X X
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