Indian Kanoon - Search engine for Indian Law

7. This application is signed by the plaintiff's pleader alone and not by his next friend. The order of the Court thereon is " Application to withdraw granted."

8. It is important to see now what the compromise was in consequence of which the suit was withdrawn. It is evidenced by a trust-deed, Exh. 124, executed by Motilal on March 21, 1898, and its main provisions are these:Motilal gives up all his rights in the family property for the benefit of his minor son Kalidas and any other son who may be born to him in future and entrusts the family property to the possession and management of two trustees, one Jhaverbhai who is dead and was the paternal uncle of the minor's mother and elder brother of Chaturbhai who had filed the suit as the minor's next friend, and one Balkrishna who is defendant No. 4 in the present suit, and examined as a witness, Exh. 158. These two trustees were to pay up all the family debts including the mortgage debts due to the present defendants Nos. 1 to 3 by selling or mortgaging any of the family properties, maintain all the family members, incur suitable expenses for the marriage of Motilal's daughter, etc. If there was any difference of opinion among the trustees, they were to act according to the advice of one Chunilal Keshavlal Shah, a pleader at Ahmedabad. The trust was to be in existence till Motilal's death, and thereafter the property was to be handed over to Kalidas and his other legal heirs who may be living at the time. The deed was attested, among others, by pleaders, Mr. Shivabhai Patel, who was the minor Kalidas' pleader in the pending suit, Mr. Chunilal Shah and Mr. Maganlal Mehta who represented Motilal. The deed was registered not in the Kaira district, where almost all the trust properties were situated, but in Ahmedabad where, it was stated, there was a small piece of open land belonging to Motilal and which was included among the trust properties. Two days after the execution of the trust-deed, a registered agreement was passed by the trustees to Motilal on March 23, 1898, by which whatever trust property which might remain after the trustees would sell any property for the payment of debts was to be handed over for management on behalf of the trustees to Motilal but without any authority to incur any debt or create any burden on any property, and the income was to be used only for the benefit of the family.

13. The defendants denied these allegations and stated that the trust-deed as well as the sale-deeds were fair and proper transactions meant in good faith for the benefit of the plaintiffs' family and for the payment of just family debts and were passed with the consent of the plaintiffs' father and mother and therefore binding on them, that there was no collusion or fraud and that the suit was not bona fide and should be dismissed.

14. Of the two trustees Jhaverbhai was dead in 1909 and the other trustee Balkrishna was joined as defendant No. 4 and his defence was on the same lines as that of the mortgagees-defendants.

20. During the interval of two years between the trust and the sales, the trustees had to incur debts for maintaining the family and had passed several mortgage-bonds to these very mortgagees, and, as we have seen, they were recognized by the Collector. This would show what was the state of this family then, and the only best course was to pay off the former mortgages and get back as much property as possible free from incumbrance.

21. Next come the sales. The mortgage debt under the first two mortgages then came to Rs. 8,100. There were further debts incurred by Motilal subsequently which came to about Rs. 2,000, Exhs. 286 to 294. The opinion of the lower Court on the evidence that these further debts were also binding on the minor is correct and nothing is urged here which would show that it is erroneous. The net result of these four sale transactions was that for a consideration of Rs. 10,400, a part-it was no doubt a large part-of the mortgaged property was sold to the mortgagees who retained it as absolute owners and returned to the trustees the rest of the property which consisted of nearly forty-two acres of Narva land, two houses and some pieces of open land. It is this latter property which is enjoyed by the plaintiffs' family for nearly twenty-five years before this suit in virtue of the compromise arrangement and of which they call themselves proprietors in the plaint. It is not shown at all that the sale-deeds passed to the mortgagees were for inadequate consideration.

43. In 1897, Kalidas by his next friend sued his father for partition of the ancestral property in suit No. 393 of 1897, The suit was never tried out, for, in March, 1898, it was arranged that Motilal should transfer all the family property to two trustees with power to sell as much of it as was necessary to pay off the debts. These had increased because, though the mortgages being with possession had stopped an increase of the original debt by interest, they had left the family with an insufficient income to live on.