Judgment

GROVER, J.:- This is an appeal by special leave from a judgment of the Rajasthan High Court arising out of a suit filed by the appellant for possession of property known as Krishna Bhavan at Ajmer which was decreed by the trial court but has been dismissed by the High Court.

2. The facts may be stated. Rai Bahadur Mool Chand Kapoor a retired officer of Railways who died on September 9, 1918 married three wives. He had no issue from the first wife but the respondent Krishna Chand Kapoor is his son from the second wife. The third wife Smt. Dhanta Devi had a daughter Chanda Devi and the appellant is her son. Dhanta Devi died in 1948 and the present suit was filed in January 1949. It appears that Mool Chand Kapoor left considerable amount in cash and securities apart from the property in dispute. Mool Chand Kapoor after retirement had started doing business on the Stock Exchange at Bombay. That business seems to have been continued by the respondent. The respondent entered into several transactions after the death of his father. He purchased 25 equity shares and 34 preference shares of Tata Power Co., Bombay during the years 1919 and 1920. In April 1919 he purchased land at Ville Parle, Bombay, for Rs. 4,067. He purchased a car in April 1920 for Rs. 8,000/-. He also purchased some jewellery in the shape of diamonds in August 1920 for Rs. 6924/-. Towards the end of the year 1920 a suit was filed by one D. S. Madan of Bombay against the respondent in Bombay High Court for a sum of Rupees 9,393/12/0.

3. The respondent started transferring properties held by him favour of Smt. Dhanta Devi, his step mother in the year 1921. In February 1921 he claimed to have transferred 50 shares of E. D. Sasoon & Co. in her favour. On April 4, 1921 admitteldy he transferred the car in favour of his step mother vide Ext. 255. It would appear from the copy of the judgment Ext. A-279 that a debt of Rs. 3,000/- due in favour of the respondent against Kalyan Mal V. Dhanda was transferred to Smt. Dhanta Devi by making the debtor execute a pronote for Rs. 3200/- in her favour on the basis of which she filed a suit against the debtor which was decreed. On May 20, 1921 the respondent executed a usufructuary mortgage deed for Rs. 25,000/- in favour of Dhanta Devi mortgaging two properties (1) Krishna Bhavan and (2) the land at Ville Parle, Bombay. The consideration for the mortgage was stated in the deed to be the debt on the basis of two pronotes, one for Rs. 15,000/- dated December 10, 1919 and the other for Rs. 10,000/- dated March 17, 1920. These amounts were said to have been advanced to the respondent by Smt. Dhanta Devi. The mortgage Ext. 7 was for a period of 60 years and the present dispute arises out of the said transaction of usufructuary mortgage. It may be mentioned that the facts which have been stated by us about the previous transactions made by the respondent in favour of Dhanta Devi and the facts which are next stated relating to the transactions subsequent to the execution of the usufructuary mortgage deed are necessary for deciding the real point in controversy, namely, whether a usufructuary executed fictitiously by the respondent and was just a sham transaction for which no consideration was received by him and which had apparently been entered into for the purpose of defeating the creditors of the respondent.

4. On September 1, 1921 Tata Power Co. Ltd. Bombay demanded first call of Rs. 100/- per share from the respondent which was not paid. On January 13, 1922 the Bombay High Court decreed the suit of D. D. Madan against the respondent for about Rs. 9,400/- with costs and future interest. On April 1, 1921 the second call was made by Tata Power Co. in respect of the shares. This was followed by a third call on October 16, 1922. Finally, a suit was filed on January 27, 1922 by Tata Power Company which was decreed for Rs. 42,227-5-0, on January 27, 1925. On November 23, 1925 the respondent executed a sale deed, Ext. 8, of the equity