1. This is a defendant's appeal in a suit for a declaration that the sale deed dated 17th May, 1921 executed by the plaintiff respondent in favour of the defendant may be declared to be null and void.
2. The plaintiff Amjad Ali Shah is the brother of Musammat Muniran, the defendant-appellant. On the 17th May, 1921, Amjad Ali Shah executed a sale-deed with respect to certain property which had devolved on him upon the death of his brother Farzand Ali. The consideration for the sale was Rs. 1,000. The plaintiff alleged that as one Nanhu Mal was about to institute a suit for recovery of money against him he executed this sale-deed with intent to prevent Nanhu Mal from attaching this property in execution of any decree he may obtain. It appears that a decree for Rs. 225 was passed in favour of Nanhu Mal who had instituted a suit for the recovery of money, and on the 5th August, 1921, Amjad Ali Shah paid this amount. The present suit was instituted on the 18th July, 1923. Musammat Muniran Bibi's defence was that the sale-deed was a genuine sale deed.
3. The Court of first instance dismissed the plaintiffs suit upon the finding that the sale was a genuine sale and that the plaintiff had received the consideration for the sale and that the statement made by him that the document had been executed in the way alleged and for the reasons set out by Amjad Ali Shah was false. Amjad Ali Shah went up in appeal before the learned District Judge of Moradabad who has decreed the appeal.
4. Musammat Muniran has come up here in second appeal and it is urged by the learned Counsel for the appellant that even upon the finding of fact arrived at by the learned Additional Judge the plaintiff's suit cannot be decreed.
5. The learned Judge has considered the items set out in the sale-deed of 17th May, 1921, and has found that a portion of them has not been proved by the defendant. As regards certain other items he has recorded no finding at all. It seems that it had escaped his notice. At the registration office cash was paid to Amjad Ali Shah. The Judge has found that out of the sale consideration Rs. 277-12-5 for which Amjad Ali Shah was liable, on account of the deed executed in favour of Ram Charan and which had been repaid by Musammat Muniran was a good consideration. Upon this fact alone he says that it does not show that the sale in suit had been executed as an operative thing between the parties and so should be enforced between them. We are of opinion that when the only fact found is that a portion of the consideration set out in a sale deed has been found to be good consideration, the mere fact that a portion of the sale consideration has not been paid is no ground for coming to the conclusion that the parties did not intend the document to be a document which could be enforced between the parties. Our attention has been called to the case of Alamdar Husain v. Moti Ram 46 Ind. Cas. 382 : 16 A.L.J. 454. That case has really no bearing as in that case it, was laid down that the non-passing of consideration may often be very strong evidence that the deed was not intended to operate; but each case must be decided upon the facts proved. In this case all that has been proved is that two items set out in the sale-deed as part of the consideration have not been paid. It has been found that at any rate as regards one portion of the consideration it was good consideration. We are, therefore, unable to uphold the judgment of the Court below. We decree the appeal and restore the decree--of the Court of first instance with costs throughout.