Case: Dr. Prem Chand Tandon Vs. Krishna Chand Kapoor

has relied on the finding of the trial court that Smt. Dhanta Devi had enough funds for making the advances amounting to Rs. 25,000/- for which promissory notes were executed by the respondent and which formed the consideration for the usfructuary 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 favour 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 assests 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 Tate Power C. Ltd., on account of the liability of the shares which he had purchased. He might also be anticipating other indebtedness which would be incurred in the course of speculative business which he was carrying on. We are wholly unable to understand why the respondent transferred even the car on April 4, 1921 in favour of Smt. Dhanta Devi. It has not been suggested on his behalf that his was done to pay off any debts due to her. This was done immediately before the usufructuary mortgage was executed apart from the transfer of another debt of Rs. 3,000/- on May 16, 1921. The events which followed the transfer of the usufructuay mortgage and in particular the fact that two wholly fictitions documents Exts. 8 an 9 were executed, even though it was some years later, certainly reflect very adversely no the conduct of the respondent. Smt. Dhanta Devi was also a party to those documents and it is difficult to believe that all these transfers including the transfer preceding the execution of the usufructuary mortgage were made without her knowledge and consent. The conclusion, therefore, is irresistible that prior and subsequent to the execution of the usufructuary mortgage deed there was some scheme or understanding between the respondent and Dhanta Devi by which all these transfers were made with a view to avoiding payment of debts by the respondent.9. As regards the consideration for the usufructuary mortgage the promissory notes were never produced. It is true that there was some evidence that Smt. Dhanta Devi had received certain insurance monies on the death of her husband but the aggregate of those amounts did not exceed Rs. 13,000/- Even if she was possessed of some jewellery and other funds it is difficult to believe that she would have advanced such a substantial amount of Rs. 25,000/- to the respondent by means of two promissory notes on December 10, 1919 and on March 17, 1920. It would further appear and some stress has been laid on this aspect by Jagat Narain J., in his judgment that the financial position of the respondent at the time the usufructuary mortgage deed was executed was fairly good considering the various articles like diamonds and the car which he had purchased apart from the shares. The house at Ajmer and the Ville Parle land had been mortgaged with possession for Rupees 25,000/- for a period of 60 years. It was difficult 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 assests 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., and Jagat Narain J. that even after the execution of the mortgage deed the respondent continued to remain in effective possession of a very large portion of Krishna Bhavan and received its rents and profits for a long period during the lifetime of Smt. Dhanta Devi was correct. If that be so it becomes apparent that Dhanta Devi never took possession of the property in dispute pursuant to the usufructuary mortgage deed executed by the respondent in her favour. It appears that even as the widow of her husband Mool Chand Kapoor she had a right of residence in the house and it was largely in that capacity that she continued to keep a portion of it or received rent form some of the tenants.11. Ordinarily this court is most reluctant to interfere with the finding of fact of the High Court or appreciation of evidence by it, but we have gone into most of the material circumstances and considered the important pieces of evidence because of the difference of opinion among the learned Judges of the High Court . However, for the reasons that have been indicated above we are satisfied that the conclusion of Modi and Jagat Narain J J. were correct and must be upheld.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 favour 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 assests 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 Tate Power C. Ltd., on account of the liability of the shares which he had purchased. He might also be anticipating other indebtedness which would be incurred in the course of speculative business which he was carrying on. We are wholly unable to understand why the respondent transferred even the car on April 4, 1921 in favour of Smt. Dhanta Devi. It has not been suggested on his behalf that his was done to pay off any debts due to her. This was done immediately before the usufructuary mortgage was executed apart from the transfer of another debt of Rs. 3,000/on May 16, 1921. The events which followed the transfer of the usufructuay mortgage and in particular the fact that two wholly fictitions documents Exts. 8 an 9 were executed, even though it was some years later, certainly reflect very adversely no the conduct of the respondent. Smt. Dhanta Devi was also a party to those documents and it is difficult to believe that all these transfers including the transfer preceding the execution of the usufructuary mortgage were made without her knowledge and consent. The conclusion, therefore, is irresistible that prior and subsequent to the execution of the usufructuary mortgage deed there was some scheme or understanding between the respondent and Dhanta Devi by which all these transfers were made with a view to avoiding payment of debts by the respondent.9. As regards the consideration for the usufructuary mortgage the promissory notes were never produced. It is true that there was some evidence that Smt. Dhanta Devi had received certain insurance monies on the death of her husband but the aggregate of those amounts did not exceed Rs. 13,000/Even if she was possessed of some jewellery and other funds it is difficult to believe that she would have advanced such a substantial amount of Rs. 25,000/to the respondent by means of two promissory notes on December 10, 1919 and on March 17, 1920. It would further appear and some stress has been laid on this aspect by Jagat Narain J., in his judgment that the financial position of the respondent at the time the usufructuary mortgage deed was executed was fairly good considering the various articles like diamonds and the car which he had purchased apart from the shares. The house at Ajmer and the Ville Parle land had been mortgaged with possession for Rupees 25,000/for a period of 60 years. It was difficult 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 assests 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., and Jagat Narain J. that even after the execution of the mortgage deed the respondent continued to remain in effective possession of a very large portion of Krishna Bhavan and received its rents and profits for a long period during the lifetime of Smt. Dhanta Devi was correct. If that be so it becomes apparent that Dhanta Devi never took possession of the property in dispute pursuant to the usufructuary mortgage deed executed by the respondent in her favour. It appears that even as the widow of her husband Mool Chand Kapoor she had a right of residence in the house and it was largely in that capacity that she continued to keep a portion of it or received rent form some of the tenants.11. Ordinarily this court is most reluctant to interfere with the finding of fact of the High Court or appreciation of evidence by it, but we have gone into most of the material circumstances and considered the important pieces of evidence because of the difference of opinion among the learned Judges of the High Court . However, for the reasons that have been indicated above we are satisfied that the conclusion of Modi and Jagat Narain J J. were correct and must be upheld.