( 1 ) THIS is an appeal preferred by the original defendant No. 1 of the Civil Suit No. 2306 of 1969 decreed by the learned Judge of the City Civil Court 2 Court Ahmedabad in favour of the present respondent No. 1 the original plaintiff who had succeeded to get a declaration from the learned Judge that the document of sale dated 19-6-51 Ex. 74 on the record which was executed by the defendant No. 2 his father in favour of the defendant No. 1 (the present appellant who is his uncle was to the extent of his 1/4th share not binding the plaintiff. As a corollary the learned Judge further declared that the plaintiff was entitled to receive 1/4th share from the income of the property which admittedly was let out on long term basis on earlier occasion in favour of the original defendant No. 3 the New Asarva Manufacturing Co. Ltd. which was liable to pay only Rs. 1041. 00 as the annual rent.

( 2 ) ). The plaintiffs case was that the said sale deed executed by his father the defendant No. 2 on the record was without consideration and alternatively for a consideration which was tainted and therefore it did not bind the plaintiff who attained majority for the first time on 16-10-69 and who filed the suit in question soon thereafter on 19 for the relief which has already been stated by me above.

( 3 ) ). The defence of the defendant No. 1 was that the defendant No. 2 had executed the sale deed in his favour for the consideration of Rs. 4000. 00 against the amount of Rs. 5000. 00 paid by the defendant No. 1 to one Anandilal Harilal to discharge the debt of the defendant No. 2 at the time when said Anandilal had filed a criminal complaint against the defendant No. 2 alleging that the defendant No. 2 had cheated said Anandilal after borrowing title deeds of the property the only evidence of the mortgage transaction under a false protect. The defendant No. 1 had undertaken to discharge that debt of the defendant No. 2 and in fact he had done so by paying Anandilal Rs. 5000. 00 and against his acceptance of that liability to pay Anandilals dues this sale deed of the half share of the defendant No. 2 in the suit property was executed by the defendant No. 2 in favour of the defendant No. 1 with the remaining liability of Rs. 1000. 00 to be met by the defendant No. 2 thereafter which the defendant No. 1 alleged the defendant No. 2 had never done but with no legal consequences because the defendant No. 1 had not thought it fit to proceed against his brother the defendant No. 2 for the said amount

( 4 ) ). The learned Judge had raised various issues at Ex. 43 which are reproduced in paragraph 6 of the judgment under appeal. The learned Judge in paragraph 7 of his judgment has held as under: (1) It is an admitted position on record that there was partition. between the defendant No. 1 and the defendant No. 2 and their mother and the partition deed is at Ex. 71 (2) It is also not in dispute that the suit property which had already been let to tenant on a long term basis since before the date of that partition continued to remain as joint property of the two defendants after partition they two having equal shares therein; (3) As per the terms of the partition deed Ex. 71 the mother of the two defendants was to enjoy the income of the rent of the suit property till her life time exclusively and after her death the two brothers were to receive the said income jointly subject to their liability to pay Rs. 100. 00every year to each of their three sisters. The mother admittedly had died in the year 1967; (4) It is also not in dispute that the defendant No. 2 had borrowed money from Anandilal Harilal and for the payment of that debt the defendant No. 1 had stood surety for defendant No. 2.

( 5 ) ). After noting the above undisputed facts the learned Judge in paragraph 16 of his judgment has observed as follows:"16 Now in view of the averments of the plaintiff in the plaint itself and in view of the evidence of the plaintiff and the evidence of