1. The plaintiffs are the infant sons of the first defendant and they sue by their next friend who is the mother of the first defendant.
2. The plaintiffs ask for a declaration that a mortgage of a certain house executed by the first defendant in favour of the second and third defendants and a decree passed thereon in favour of second and third defendants are invalid and inoperative against the plaintiffs, and for an order boat possession of the house be given to the plaintiffs.
3. The circumstances in which the suit is brought are shortly as follows: On March 18th, 1893, the plaintiffs by their next friend instituted a partition suit against the first defendant.
4. On July 24th, 1893, the first defendant executed a deed by which he purported to mortgage the house in question to the second and third defendants for Rs. 1,000.
5. On December 13th, 1894, a razinamah decree was passed in the partition suit.
6. It seems clear that by the agreement upon which the razinamah decree was based the first defendant conveyed to the plaintiffs the whole of his interest in the immoveable family property whilst he only retained as much cash as was required to pay off the incumbrances on the property. The two mortgages on the property were paid off and the plaintiffs took possession of the house in April 1896.
7. The second and third defendants (the mortgagees from the first defendant under the deed of July 24th, 1893) brought a suit against the first defendant on this mortgage deed and obtained a decree for their mortgage debt and costs and for sale on default of payment, The plaintiffs were not parties to this suit .In execution of this decree the house was brought to sale and purchased by the mortgagees (the second and third defendants) on October 31st, 1898, and they obtained a writ of possession and took possession thereunder. The plaintiffs then applied in the City Civil Court under Section 332 of the Code of Civil Procedure for an order restoring them to possession. The application was dismissed on the ground that the house had been mortgaged before the decree in the partition suit and that it had not been shown that the debt of the father (first defendant) was not binding on the sons (the plaintiffs). The plaintiffs then brought the present suit, and a decree was passed by Boddam, J., in the terms of the prayer do the plaint.
8. The deed of July 24th, 1893, was prior in date to the decree in the partition suit, and the first question for consideration is whether that deed is effective as a mortgage of, or a charge upon, the house in question. It is clear that the instrument is not effective as a mortgage inasmuch as the requirements of Section 59 of the Transfer of Property Act had not been complied with, the deed being attested by only one witness, It has been contended, however, on behalf of the second and third defendants that though the instrument is ineffective as a mortgage it operates so as to create a charge under Section 100 of the Transfer of Property Act upon the house in question in favour of the second and third defendants upon the principle that the legal effect should, if possible, be given to a legal intention clearly expressed. This point was considered by the Calcutta High Court in Tofaluddi Peada v. Mahar Ali Shaha I.L.R. 26 Calc. 78 and the Court expressed the view that Section 100 applies to a case where the transaction does not amount to a mortgage, although property is made security for the payment of money, not to a case where property is intended to be mortgaged, but the deed is invalid as a mortgage by reason of its not fulfilling the requirements of the law. We should feel Home difficulty in accepting this view in a case where the point arose--as in Tofaluddi Peada v. Mahar Ali Shaha I.L.R. 26 Calc. 78between the parties to the instrument, In the present case, however, the plaintiffs were not parties to the instrument and were not parties to the suit brought upon the instrument. As against the plaintiffs at any rate it seems to us that the decree in the suit brought by the second and third defendants against the first defendant must be regarded as merely a personal decree against the first defendant on his covenant to pay.
9. In considering the legal effect of a personal decree against the father in a suit to which the infant sons were not parties the first question to be determined is--at the time the decree was obtained were the family divided, or was the first defendant the managing member of an undivided family? If the family had been divided at the time the decree was obtained, the house, as being the separate property of the sons, would not, of course, be available in execution of a personal decree against the father.
10. The plaintiffs' case is that the family ceased to be an undivided family from the passing of the decree in the partition suit. The argument on behalf of the defendants is that the decree can be impeached and ought to be set aside on the ground that the agreement in pursuance of which it was passed is voidable under Section 53 of the Transfer of Property Act as a transfer of immoveable property made with intent to defeat or delay creditors. There is an allegation in the written statement of the second and third defendants that the agreement and the decree were entered into and obtained for the purpose of defeating the creditors of the first defendant, and an issue was raised as to whether the razinamah decree was fraudulent, The learned Judge finds it was not.
11. It seems to us that, even if the learned Judge had been of opinion that the decree was fraudulent as against creditors, it would not have been competent for him to have treated it as a nullity, seeing that no suit had been brought or application made by creditors to have it set aside. If it would not have been com-potent for the Judge who tried the suit to treat the decree as a nullity it is not competent for us to treat it as a nullity. This being so, the decree must be regarded as being still in force.
12. As things stand, therefore, we have a subsisting decree of this Court by virtue of which the family became divided and the house in question became the separate property of the plaintiffs and we have a personal decree against the first defendant obtained after the decree in the partition suit was passed. In this state of things it seems to us that, in their suit under Section 332 of the Code of Civil Procedure, the plaintiffs made out their case for a declaration that they had a right to the present possession of the property and for an order that they should recover possession thereof. It la not necessary for us to express our opinion as to whether the second and third defendants could successfully impeach the decree in the partition suit in a suit instituted for that purpose.
13. The appeal is dismissed with costs.