1. This is a defendant's appeal arising out of a suit for a declaration brought by a judgment-creditor Mahabir Prasad against the son and grandson of his original debtor Jai Gobind. On 20th May 1914, Jai Gobind executed a hypothecation bond under which four-annas share is two villages were mortgaged to the plaintiff for Rs. 600 carrying interest at 2 per cent, per month compoundable with yearly rests. On 20th December 1922, the creditor brought a suit for recovery of the amount due to him but in the plaint he stated that for the present he would be content with a simple money-decree. The suit was filed just a few days before the closing of the Court for the Christmas holidays. It was filed at the headquarters at Azamgarh. On 3rd January 1923, Jai Gobind executed a deed of gift of the zemindari properties other than those covered by the mortgage-deed and this document was registered at Deogaon where the parties resided. It was in favour of his own wife and the reason given for the transfer was that there was ill feeling between his sons and his wife and he apprehended that after his death his sons would not abide by an oral gift which he had made about a year ago and would interfere with her possession and that, therefore, it was desirable that the transaction should be reduced into writing. Jai Gobind died soon afterwards sometime towards the end of March 1923. His two sons and grandson were brought on the record as his representatives and on 12th November 1923 a simple money-decree was passed in favour of Mahabir Prasad for Rs. 4,000 odd. The decree-holder executed his money-decree by' attachment of the property covered by the deed of gift and not what had been previously mortgaged to him. An objection was raised on behalf of the widow of Jai Gobind named Mt. Saraswati, the present appellant, and the property was released from attachment. The creditor has accordingly instituted the present suit for a declaration that the deed of gift is not binding on him.:
2. In the plaint the plaintiff alleged that no gift was virtually intended, nor was Jai Gobind legally entitled to make a gift of the property, nor could such transfer which was without consideration be effective as it was with a view to evade payment of the decretal amount and to cause loss to the creditor. It is clear that in the plaint the plaintiff jumbled together the three points of attack which he proposed to adopt, viz.,,, that the document was fictitious, that Jai Gobind had no power to make the gift, and that the transfer was with intent to defeat and delay his creditor. The defendant, Mt. Saraswati, resisted the claim and pleaded that the gift was in every way valid and binding. The learned; Subordinate Judge has decreed the claim. Issue 1 which he framed on the main questions of fact which arose in the case was a composite one and it lumped together all the three distinct points which arose in the case. Briefly, speaking, the first issue was whether the deed of gift, was a farzi and fraudulent transaction with intent to defeat the plaintiff's decree. The finding of the learned Subordinate Judge also shows that he has not clearly kept in his mind the distinction which exists between these three different characters which the deed of gift might have assumed. If a deed is farzi and fictitious it is merely waste paper and no title passes to the ostensible transferee. The property continues to vest in the donor and is obviously liable to attachment and seizure by his creditor. If the transfer is not fictitious, but is one which a member of a joint Hindu family is not competent to make, it is voidable at the option of the other members of the family, and will stand so long as it has not been avoided. Even if a transfer is neither fictitious nor voidable in that sense, it may be capable of being avoided under Section 53, T.P. Act, if it was made with intent to defeat or delay a creditor. These three points and the legal consequences of the findings on these points had to be dealt with separately. The learned Subordinate Judge unfortunately has not adopted this course and it is, therefore, doubtful how far he really appreciated., the distinctions which existed.
3. There is one finding of fact arrived at by him which must be accepted. He has held that this property which had been transferred by the mortgage-deed of 1914 was no doubt sufficient to discharge the entire decretal debt. Apart from the oral evidence which has been printed there are some sale-deeds on the record' which show that a one-anna share in Rasulha was sold for Rs. 1,000 and one third of six annas eight pies in Tahirpur was sold at auction for over Rs. 1,500. Thus the value of the two four-annas shares would be at least between Rs. 6,000 and Rs. 7,000 and the decretal amount was less than Rs. 5,000.
4. The learned Subordinate Judge has perhaps meant to find all the three points against the defendant. He has used the language which indicates that he found that the gift was a fictitious document. He has also used expressions which clearly indicate that, in his opinion, the transaction was intended to defeat and delay Mahabir Prasad, and he has expressly held that the transfer by Jai Gobind of joint ancestral property was invalid and can be avoided by the plaintiff. We propose to take up these points separately.
5. Mahabir Prasad was merely an attaching creditor, from whose attachment the property was released by an order of the execution Court. At the present moment he has no subsisting interest in the family property as he has not come to Court in the capacity of a mortgagee. If the transfer by Jai Gobind was of joint ancestral property without the consent of his sons and grandson it would be voidable at their option, but we cannot think that the present plaintiff as a mere prospective attaching creditor has a right to get that option exercised in his favour and to get the deed invalidated. No authority has been quoted by the learned Subordinate Judge in support of the view which he has taken, and in the absence of any clear authority binding upon us we are not prepared to hold that a person in the position of the plaintiff has a right to get a transfer of joint property avoided. The position of the plaintiff is entirely distinct from that of a subsequent transferee who might acquire an interest in the family property by a subsequent purchase. The case of Muhammad Muzamil Ullah Khan v. Mithiu Lal  33 All. 783 'and the case of Inaryat Illahi v. Hardes Sahai A.I.R. 1924 All. 29 are, therefore, distinguishable.
6. The finding that the intention was to defeat and delay the creditor is based on the following circumstances and evidence. The suit was filed just before the Christmas holidays and the deed of gift was executed just after those holidays. The proximity of the two dates has raised a suspicion in the mind of the Subordinate Judge that the two incidents were connected with each other and that the gift must have been made after the knowledge of the suit. There was the statement of the plaintiff Mahabir Prasad that Jai Gobind knew about the suit before he executed the deed of gift. There was the statement of Kedar Nath that at some time, not specified by him, there was some talk of settlement between the creditor and the debtor, but no settlement could be arrived at because one was asking for a remission of compound interest and the other was insisting upon it. Mahabir Prasad is an interested party, and his mere statement that Jai Gobind knew of the suit has to be looked upon with some suspicion. He does not explain how he knew of the suit. Obviously there was no time for the summons to be served on him before the deed of gift was executed. Assuming for the sake of argument that the knowledge of the suit which was filed-at Azamgarh might have reached Jai Gobind at Deogaon it does not follow, and there is no legally sufficient evidence to prove it, that Jai Gobind was aware that his mortgagee had abandoned the security and was asking merely for a simple money decree.
7. The learned Subordinate Judge has not distinctly found that Jai Gobind had any such knowledge, and in the absence of any evidence to this effect we are not prepared to assume that Jai Gobind knew that the mortgagee was seeking to obtain a simple money decree only. Even if we presume that Jai Gobind was aware of the law that a mortgagee who had obtained a simple money decree is not entitled to proceed against the property mortgaged, it would not follow that Jai Govind was necessarily aware that his creditor would proceed against the other property belonging to him. If he did not know that the security had been abandoned, the natural thing for him to assume if he heard of the institution of the suit was that a mortgage-decree would have been sought. If the mortgaged property was sufficient for the payment of the decretal amount nothing which Jai Gobind did as regards the other property would in any way defeat or delay his mortgagee. On the other hand, even if it turned out that the mortgage was invalid and not binding on the family and only a simple money decree was given to the plaintiff, even then there would be nothing to prevent the decree-holder from attaching the property released from the charge and selling it in execution of his decree. If the property was sufficient for payment of the decretal amount the fact that the other properties of Jai Gobind were transferred would not in any way embarrass or hamper him. In view of the evidence that the property covered by the mortgage-deed was ample it is very difficult to hold that the necessary effect of the deed of gift was to defeat and delay Mahabir Prasad. We might in this connexion refer to the case of Jwala Singh v. Fattah [l921] 19 A.L.J. 87. When such was not the effect there can be no presumption from the more fact that the transfer was without consideration, that there was intention to defeat or delay creditors. The transfer, even though for love and affection was, of course, gratuitous within the meaning of Section 53, T.P. Act: vide Sukhpal Kuar v. Dasu  7 0. L.J. 429.
8. There is, of course, no direct evidence to prove the real intention of Jai Gobind, nor in most cases can such evidence exist. The learned advocate for the respondent relies on the circumstance that the gift was made by the husband to his wife of joint family property which could not in the long run be absolutely effective. He also relies on the suspicion which arises from the nearness of the dates of the suit and the gift. In our opinion these circumstances are not sufficient to justify a Court to infer that there was intention to defeat and delay creditors, when we have got the clear finding of the Court below that the value of the property which was left untouched by the gift was amply sufficient for the payment of the debt. There is no proof that he had any other debt to discharge.
9. The third question is more difficult. The learned (Subordinate Judge after having heard the entire evidence became strongly convinced that the deed was a fictitious document. We would have had great difficulty in differing from his view if it had not been the fact that this finding is mixed up with his conviction that the intention was to defeat the decree of Mahabir Prasad. The circumstances are no doubt suspicious, but no finding can be based on mere suspicions. The positive evidence in this connexion led by the plaintiff was simply this: that the sons and grandson of Jai Gobind were in possession of the property in dispute. This oral evidence was to a great extent shaken in the cross-examination, which brought out the fact that the only grandson was a minor boy and was living with his father who was employed in service outside Deogaon. The statements of the witnesses that the sons and grandson were in possession were loose statements. They did not even state specifically that the sons made the actual collection of rents from the tenants, nor did they go on to say that they were not on good terms with their mother so that the realizations made by them were made on their behalf and not on behalf of their mother. There is the recital in the deed of gift suggesting that there was ill-feeling between the sons and the wife of Jai Gobind and there is no express evidence to contradict that statement. It may be that ultimately a gift of joint property made by Jai Gobind would prove ineffective and voidable at the option of the sons, but it does not follow from this circumstance that Jai Gobind necessarily intended to execute a fictitious document without intending that any interest should pass to his wife. We know it as a fact that Jai Gobind was at the time seriously ill, and he died within two months of the execution of the deed, and it is possible that he intended to make some provision as best he could for the maintenance of his widow after his death.
10. Whatever might have been the motive it is impossible to say that the circumstances relied upon by the Court below and even the evidence produced on behalf of the plaintiff are sufficient to show conclusively that the deed of gift was a wholly fictitious document as distinct from an invalid and voidable document. We may mention that the criticizm of the learned Subordinate Judge on the oral evidence produced by the defendant is not quite exact. In rejecting the defence evidence he has given three reasons. The first is that Jit Bahadur who is said to have been making collections on behalf of the defendant, and who used to be present in Court and was looking after the case on her behalf, was the best man and was not examined. The second is that the defendant's witnesses have no personal knowledge that Jit Bahadur used to make collections on behalf of Mt. Saraswati, and the third is that one of the defendant's witnesses says that Jai Gobind and Saraswati used to spend the profits of the property, which was inconsistent with the fact that it was absolutely gifted to her. No doubt Jit Bahadur was not examined, but if he had been examined his evidence would have been commented upon as being that of the defendant's pairokar. Instead of him the defendants produced Ram Rup Panday, who distinctly stated that he paid the rent of Mt. Saraswati's share to Jit Bahadur himself. This must be a matter within his personal knowledge. Similarly, another witness, Udit Tewari, stated that he himself had seen Jit Bahadur making collections for two years, though he admitted that he did not actually realize anything from anyone in his presence. The evidence of this witness also was not wholly hearsay. Lastly the statement of Rahas Bihari that the profits of the village used to be spent by Jai Gobind and his wife could only relate to the period of less than two months which intervened between the gift and the death of Jai Gobind and might very well have been a loose statement, or he might have meant that the profits were spent by Jai Gobind before the gift and by his wife after the gift. This admission in no way destroys the defendant's case of an absolute gift in her favour. We might also add that there was the statement of Rahas Bihari Lal as regards the ill-feeling between the defendant and her sons. Having considered the whole evidence we are of opinion that the burden lay on the plaintiff who had an order of the execution Court against him to prove that a document, duly executed and registered under which mutation of names had been effected, was in reality fictitious and a paper transaction without any intention to transfer the property the denee. In our opinion the evidence is wholly insufficient to make out any such case.
11. We may add that for the purposes of this appeal it was not absolutely necessary to decide the question whether the property acquired by Jai Gobind under the pre-emption decree was his self-acquired property or joint family property,, either because it was acquired with joint funds or was thrown into the joint stock after acquisition We have merely assumed that it was joint.
12. The plaintiff has postponed his remedy to enforce the security for the time being. He is accordingly prevented under Order 34, Rule 14 from realizing the amount of money due under his mortgage-deed by sale of the property mortgaged, but under that rule there will not be a bar: of Order 2, Rule 2 against a subsequent suit to enforce his security. If he can succeed in enforcing his charge his money can be realized out of the mortgaged property. If he fails to establish that a charge did not subsist he will then be at liberty to attach the property attempted to be mortgaged by the deed and realize his money by its sale The plaintiff,, therefore, would not be likely to suffer. For the reasons given we allow this appeal, and setting aside the decree of the' Court below dismiss the plaintiff's suit with costs including in this Court fees on the higher scale.