JUDGMENT

Malik, J. - This case has had a chequered history. One Ali Tamkin executed a mortgage for Rs. 5000 in favour of Bhagwan Das on 10-6-1922. Various payments were made by or on behalf of the mortgagor till 5-11-1926. For the balance of the amount, a suit NO. 9 of 1934 was filed by Bhagwan Das in the Court of the Subordinate Judge of Bijnor, district Moradabad, on 29-5-1934. Ali Tamkin had died before the filing of the suit and Bhagwan Das impleaded as defendant to the action various relations of Ali Tamkin who were his legal representatives under the Muhammadan law. One of such persons who was impleaded was Syed Ali Yakin, son of Ali Hasan. Ali Yakin was impleaded as a major and no prayer was made in the plaint for appointment of his guardian. On the date of suit he was above eighteen years of age but his mother had been appointed a certificated guardian and under the law he was, therefore not a major till he had attained the age of twenty one. The suit does not appear to have been contested and it was decreed ex parte. AH Yakin became a major, that is, completed the age of twenty one, on 26-8-1936. He filed a Suit No. 3 of 1940, for setting aside the decree obtained against him in Suit No. 9 of 1934 on the ground that he was a minor and that all the proceedings against him were not binding and were nullities. The suit was decreed on 26-4-1940. The operative portion of the judgment is as follows :

By way of result it is ordered that suit for declaration is decreed such vise that it is declared that Decree No. 9 of 1934 of the Court of the Civil Judge Bijnor is not binding on the plaintiff and that the plaintiff is readmitted to his original rights. Either of the two parties may apply for the revival of the said previous suit of 1934.....

The very next day, the 27th of April 1940 Bhagwan Das filed an application for revival of the suit, No. 9 of 1934. This was opposed on behalf of Ali Yakin, but the application was granted on 9-11-1940, and the suit was revived on that date. The defendant, Ali Yakin, filed a written statement and took the following pleas: (1) that the plaintiff had no cause of action against him, (2) that the defendant had no knowledge of any such hypothecation bond having been executed by Syed Ali Tamkin and even if there was such a bond it was not executed and completed as a hypothecation bond, (3) that the claim was barred by time, (4) that Bhagwan Das, plaintiff, had under a deed of gift transferred the mortgagee rights to his son, Gopi Saran, and that he had, therefore, no right to file a suit, and (5) that Syed Ali Tamkin had no right to hypothecate the property given in the plaint as the said property was a perpetual 'muafi' under the Pensions Act and that it was not, therefore, transferable or saleable.

Though Ali Yakin had in his written statement raised as many as five points, the learned Civil Judge framed only two issues, the first issue being, whether the plaintiff has a right to sue, and the second, what rate of interest should be allowed to the plaintiff under the new Act, 13 [XIII] of 1940.

2. On the second point, the learned Judge held in favour of the defendant and gave, him the benefit of the Debt Redemption Act. As the plaintiff has filed no cross-objection, that point is, therefore, set at rest by the decision of the learned Civil Judge. The other issue, whether the plaintiff has a right to sue was decided by the learned Civil Judge in favour of the plaintiff as he held that the deed of gift was a fictitious transaction which had not been acted upon and which had not been accepted by Gopi Saran. That finding is challenged in appeal.

3. On 10-9-1928, Bhagwan Das executed a deed of gift. One of his sons, Mutsaddi Lal, had died leaving a minor son named Anand Kunwar. He purported to give certain bonds in favour of this minor, Anand Kunwar, under the guardianship of his mother, Mt. Basanti Devi. He had three surviving sons of whom Babu Ram was an adult and Prakash Chandra and Gopi Saran, were m