The decision must rest on legal grounds established by legal testimony.

JUDGMENT

Asutosh Mookerjee, J. - The appeal arises out of a suit commenced by the appellants for declaration that two mortgages for Rs. 5,000 each taken by the first two defendants, Radha Cbaran Poddar and Radhabailav Poddar, one from Lalbihari Saha (now deceased) on the 30th January 1914, and the other from Sukh Lal Saha, Matial Saha and Nrityaial Saha on the 7th February 1914, had been made gratuitously with intent to defeat their creditors and were consequently voidable u/s 53 of the Transfer of Property Act. The plaintiffs are creditors of the Sahas end instituted this suit on the 9th Match 1918 on behalf of themselves and the other creditors whose names were set out in a schedule appended to the plaint, The mortgagors as also the mortgagees were made defendants; and as the Sanas bad been adjudicated insolvents on the 23rd July 1914 by this Court in the exercise of its Insolvency Jurisdiction, the Official Assignee also was joined as a defendant. The suit was thus constituted .is a re-preservative suit of the type contemplated in the case of Hakim Lal v. Mooshahar Sahu 34 C. 869 : 11 C. W. N. 889 : 6 C. L. J. 410, which was affirmed by the Judicial Committee in Musdhar Sahu v. Rakim Lal 33 Ind. Cas. 343 : 90 M. L. J. 116 : 3 L. W. 207 : 20 C. W. N. 393 : 14 A. L. J. 118 : (1916) 1 M. W. N. 198 : 19 M. L. T. 203 : 23 C. L. J. 406 : 18 Bom. L. R. 378 : 43 C. 521 : 48 I. A. 104 (P. C.). The case for the plaintiffs is that after the Sahas had been adjudicated insolvents, they proved their claim before the Official Assignee in due course. On the 4th April 1916 three of the insolvents, Krishnalal Saha, Matilal (sic)Daha and Narityalal Saha were publicly examined before the Registrar in Insolvency, in the course of such public examination it was elicited that they had executed the mortgages now in suit in favour of their relations. The plaintiffs intended to apply for an order u/s 55 of the Presidency Towns Insolvency Act for avoidance of the mortgages as against the Official Assignee. But before the termination of the insolvency proceedings, they discovered that the mortgagees had obtained decrees on the mortgages on the 15th March 1917, against the mortgagors an the Official Assignee. They have consequently been constrained to institute the present suit, as otherwise complications might result if the decrees should be executed and the hypothecated properties should on sale pass into the hands of strangers. The claim was resisted by the mortgagors and mortgagees-defendants, in other words, by the Sahas and the Poddars. The Official Assignee supported the plaintiffs and staled that he was not aware of the fraudulent character of the mortgages at the time when the mortgage decrees were made and he could not accordingly take steps to defend those suits. On these pleadings, the substantial question in controversy was formulated in the eighth issue in the following terms:

Were the mortgages in question executed by the insolvents without consideration and were they executed mala fide and fraudulently as shields against their creditors as stated in the sixth and eighth paragraphs of the plaint?

2. The Subordinate Judge held on the evidence that the plaintiffs had failed to discharge the burden which lay upon them to prove that the mortgages were fraudulent; be further found that the defendants had established that the mortgages were for consideration. On the present appeal, the arguments have centred round the question whether the mortgages were gratuitous or for consideration.

3. At an early stage of the arguments, it transpired that certified copies of the record of the public examinations of Matilal Saha, Nrityalal Saha and Krishnalal Saha were received in evidence by the Subordinate Judge. None of these persons had, however, been examined as witnesses in the lower Court, and consequently their previous statement could not be taken to have been utilised to contradict them. The question thus arose, whether the statements in the insolvenc