Judgment

SUBBA RAO, J.: This appeal by certificate is directed against the decree and judgment of the High Court at Nagpur reversing those of the First Additional District Judge, Nagpur, in Civil Suit No. 12-A of 1940. It would be convenient at the outset to give the following genealogy which would help to understand the contentions of the parties.

During the lifetime of Ramasahai, he and his eight sons and one cousin, namely, Sitaram, constituted a joint Hindu family with Ramasahai as its manager. The joint family carried on its ancestral family business of excise contracts in several districts in the former C. P. and Berar Provinces. On 24-1-1897, Ramasahai died and, at the time of his death, the family, though heavily indebted, had extensive properties distributed at various places like Nagpur, Kamptee, Rajnandgaon, Raipur, Jabalpur etc. Sarjooprasad died in 1903, Ajodhyaprasad in 1912, Mangalprasad in 1914, Jankiprasad in 1923, Ratanlal in 1926,Ganeshprasad in 1928, Govindprasad in 1934, and Ramchand in 1940. On 27-2-1915, Ganeshprasad, Jankiprasad, Govindprasad, Ratanlal and Ramchand, the surviving brothers executed a registered deed of relinquishment in favour of Jankiprasad. In that document it was recited that the brothers had become separated on 24-1-1898, by a deed of relinquishment of that date and that, as the said document was not registered, they were executing a fresh one confirming the earlier arrangement. On 17-2-1916, Govindprasad executed a trust deed in favour of his nephew, Chandanlal, the son of his deceased brother Ajodhyaprasad, and his niece, Rukhmabai, the daughter of his brother Ganeshprasad, both of whom were minors at that time. In that deed Govindprasad, after asserting that he had become divided from his brothers under the aforesaid two deeds of relinquishment, created a trust in a sum of Rs. 15,000 for the benefit of the said minors, handed over the said money to the trustees appointed thereunder and directed them to construct a building or buy a land and pay the net income from the said property in equal shares to the two minor beneficiaries. With a part of that amount a site was purchased in Cotton Market, Nagpur, and between the years 1916 and 1921 a building was constructed thereon. On or about 25-10-1929, Rukmabai filed a suit against Chandanlal for partition of the said property and obtained a decree against him on 5-1-1934 for partition and mesne profits. Chandanlal filed an appeal against that decree and it was dismissed. After the said decree, Chandanlal died on 31-1-1940. When the Commissioner appointed by the Court went to the building to effect the partition by metes and bounds, the respondent, who was in the house, obstructed the Commissioner, and thereafter on 8-10-1940, filed a suit, out of which the present appeal arises, for a declaration that the said trust deed executed by Govindprasad in favour of the appellant and Chandanlal was a sham document.

2. The respondents case, inter alia, is that the first relinquishment deed was brought into existence sometime before the second registered relinquishment deed was executed and that the said deeds and the trust deed were parts of a same scheme of fraud conceived by the members of the family to defraud the creditors. The appellant, on the other hand, alleges that Govindprasad had really separated himself from the other members of the family, that he had his own businesses, that from out of his self-acquisitions he created the trust deed to benefit his minor nephew and niece for whom he had great love and affection, and that sub-sequently the trustees purchased a land and built the house thereon with additional funds supplied by him. She also alleges that the first respondent, after having set up his natural brother, Chandanlal, to resist her claim to the building and having failed in that attempt started the present litigation to deprive her of the fruits of her decree.

3. On the pleadings the learned District Judge framed as many as 12 i