JUDGMENT Sinha, J.
1. This is a defendants' appeal and arises out of a suit for a declaration that the property detailed at the foot of the plaint belongs to defendant 2, Mahmud Husain Khan, and is liable to attachment and sale in execution of decree No. 11/4 of 1934. This decree was passed on 8th June 1934 by the Sub-Divisional Officer of Bilari in the district of Moradabad. The property in1 dispute consisted of two items, one mentioned in list A and the other in list B. Both the items of property are mortgagee rights. The first in Khata Khewat No. 1, mauza Newar, mohal Surkh Patti Zangari. The second item consists of Khata Khewat No. 2, Patti Rang Surkh.
2. The facts which have led up to this suit which has given rise to the present second appeal, are these. On the night between 11th and 12th September 1925, Mahmud Husain Khan, defendant 2, was married to a lady Mt. Ruqiya Begam, who is defendant 1 in this action. Mahmud Husain on that date had no property of his own and the dower debt of the lady could not be secured. Mt. Ali Jaha Begam, the mother of Mahmud Husain, on 4th September 1925, executed a sale-deed for Rs. 15,000 in lieu of the dower debt of her daughter-in-law. On 13th September 1925 is alleged to have come into being a document which is the subject-matter of a great deal of controversy between the parties. It is suggested that Amjad Ali, the father of Ruqiya Begam, was not quite satisfied with the amount of dower fixed for his daughter and he, therefore, insisted upon his son-in-law raising the amount, more particularly as the amount of dower for his first wife was a lac and a quarter. Things went on smoothly till about the year 1932, when Mahmud Husain acquired certain mortgagee rights from his brother-in-law, Haji Nazir Ahmad. This is the property which is now the subject-matter of the dispute. On 4th July 1933 Mahmud Husain executed a sale deed in favour of his wife of the property in dispute in part payment of Rs. 30,000, the sum by which the dower was raised. It might be mentioned that while the deed of 13th September 1925 was an unregistered and unstamped paper, the later transaction was embodied in a registered document. On 8th June 1934 Radha Kishen and his brothers obtained a decree for the arrears of profits for Fasli 1340. This was for a sum of Rs. 87-1-0. Radha Kishen proceeded in execution and attached the property in dispute. Exception was taken by Ruqiya Begam that this property had passed to her under the sale deed dated 4th July 1933 and was not liable to attachment in execution of the decree passed against her husband. This objection was allowed on 4th February 1937. On 24th August 1937 Radha Kishen and his brothers brought the present suit--Suit No. 197 of 1937--in the Court of the Munsif of Chandausi, for a declaration that the sale in favour of Ruqiya was fraudulent and fictitious, had been brought about in order to defraud the creditors and passed no title, hit might incidentally be mentioned that on 11th August 1937 Radha Kishen had applied for execution afresh by attachment of a different portion of the property with which we are not concerned today.
3. It might also be mentioned that on 31st July 1937 Mt. Ruqiya brought a suit, Suit No. 23 of 1937, under Section 226, Agra Tenancy Act, in the Court of the Assistant Collector first class, for profits of her share against Radha Kishen. This suit was instituted before the Assistant Collector and, on an objection raised by Radha Kishen denying the title of Ruqiya to the property in question, an issue was remitted to the Court of the Munsif of Chandausi. This suit is the subject-matter of the connected second appeal and 1 would leave it at that at this stage.
4. The defence in suit No. 197 of 1937, in the main, was that the sale deed of 4th July 1933 was a genuine sale executed to satisfy the increased dower of Ruqiya and not intended to defeat the creditors. It was also pleaded that the claim was barred by limitation, more particularly because there was no subsisting attachment on the date of the suit. Certain other pleas were also taken with which we are not concerned in this second appeal. The learned Munsif framed a number of issues, but the only issue which has been pressed before me and with which I am concerned in this second appeal is issue 1, which was drawn up in this way:
Is the sale deed in favour of defendant 1 fictitious and collusive? Is the plaintiff entitled to the declaration sought?
Another issue, which is really a corollary to issue 1, is issue 4. "Was the sale-deed for consideration and real?" The learned Munsif found that the dower of defendant 1 before the marriage was Rs. 15,000 and in lieu of it she was given property by Mt. Ali Jaha Begam. He further found that there was an enhancement of the dower debt by means of a kabinnama dated 13th September 1925 and that it was in lieu of this increased dower that the deed of 4th July 1933 was executed. He came to the conclusion that the sale deed in favour of defendant 1 was for full consideration and genuine and real and not fictitious and collusive, as alleged by the plaintiffs. He dismissed the suit on this finding. On appeal by the plaintiffs the learned Additional Civil Judge, however, came to a different conclusion. He held that the so-called kabin-nama of 13th September 1925 was not a genuine document. He also criticised the manner in which the learned Munsif allowed that document to form part of the record and also to be exhibited. I do not propose to dwell at any length upon the kabinnama. I agree with the learned Additional Civil Judge that the kabinnama, from its very looks, appears to be a suspicious document. In this view of the matter it is not necessary for me to discuss the reasons which weighed with the learned Civil Judge in holding that it should not have formed part of the record.
5. But this, however, does not offer a full solution of the problem which confronts us in this case. It may be that the deed of 13th September 1925 is not a genuine document, but the deed of 4th July 1933 is a registered document. Before, however, I deal with this deed I would like to deal with the question of the frame of the suit.
6. The frame of the plaint clearly shows that it was a suit where the allegations made were that the deed of 4th July 1933 was fraudulent, collusive and fictitious. The law draws a clear distinction between a fraudulent and a fictitious transaction. The leading cases on the point are the cases in Petherpermal Chetty v. Muniandi Setvai ('08) 35 I.A. 98 (P.C.) and Mina Kumari v. Bijoy Singh ('16) 3 A.I.R. 1916 P.C. 238 at p. 670. A case of our own High Court which deals with this question at great length is Parbhu Nath v. Sarju Prasad ('40) 27 A.I.R. 1940 All. 407.
7. If a transaction is fictitious, it was never intended to exist. If, however, a transaction is fraudulent, it was intended to exist, though its object was to defeat the legal rights of other people. There is yet another case of this Court which deals with this point at considerable length, namely, Jagdamba Pande v. Ram Khelawan ('42) 29 A.I.R. 1942 All. 344. It was, therefore, the duty of the plaintiffs in this case to be clear in their minds, at the very outset, as to whether the transaction of 4th July 1933 was fictitious or it was fraudulent. If they stood on the basis of Section 53, T.P. Act, which deals with a fraudulent transfer, the frame of the suit should have been of a representative character. If they were going to take their stand on the fictitious character of the transfer, they could bring the suit in their individual capacity. The learned Counsel for the respondents, however, argues that this plea should have been raised at the very initial stage of the case and was not permissible in the first appellate Court, much less in second appeal. This argument appears to be well founded. It is true that a plea was taken by the defendants that the transaction of 4th July 1933 was not a, fictitious or collusive transaction, but they never put the plaintiffs to election in the manner contemplated by the law and which has been discussed at a considerable length in Parbhu Nath v. Sarju Prasad ('40) 27 A.I.R. 1940 All. 407. I, therefore, do not propose to visit the plaintiffs with the consequences of a defective suit at this late stage. Coming now to the main question as to whether the transaction was fictitious, the most important document must, in the very nature of things, be the deed of 4th July 1933 itself. I have already said that the deed of 13th September 1925 is a very suspicious document; at any rate it does not command confidence. I shall, therefore, confine, myself to the deed, of 4th July 1933. The recital in this deed is to this effect:
I, Mahmud Husain Khan,...because a part of the dower debt owing to my wife, Ruqiya Begam, is due from me.... I transfer...in lieu of Rs. 2500 in part payment of the increased Bower debt.
It is conceded that mutation was effected in favour of the lady after the execution of this deed. If we bear in mind the distinction between a fraudulent and a fictitious transaction, there can be no doubt that while the mutation may not much affect the question whether the transaction was genuine or fraudulent, it will certainly have considerable bearing on the question whether it was fictitious or real. The learned Civil Judge observes in his judgment that the first deed of 4th September 1925 was executed in full satisfaction of the dower debt to the extent of Rs. 15,000 and there was, therefore, no debt outstanding, which necessitated the execution of of the deed of 4th July 1933. He, therefore, held that this was a fictitious recital and this recital was made to invent some justification for its execution. When he deals with the question of the fraudulent character of the transaction, he comes to a finding that it was executed at a time when the defendant respondent 2 was "faced with financial embarrassment and had to pay soon after the plaintiffs' share of profits as well, and the obvious conclusion would, therefore be that it was executed with a mala fide intention of defrauding the plaintiffs." This, in my opinion, was not the proper way to approach and dismiss this question. The learned Civil Judge should have shown the amount of debts due from Mahmud Husain as also the extent of the property of which he was in possession and his capacity to discharge the debts. No transaction should be assumed to be fictitious or fraudulent. The decree for profits was passed on 8th June 1934. It was passed for the profits of 1340 Fasli. 1340 Fasli would begin from 1st July 1933. There could, therefore, be practically no profits due on the crucial date in this case. The very basis of the finding of the learned Civil Judge on the question of the fraudulent or the fictitious character of the deed must, therefore, be rejected. This finding is enough to dispose of the case, but out of deference to the learned Counsel for the respondents, I propose to discuss the other question whether when once the contract for the payment of the dower debt was complete on 4th September 1925, could a fresh contract be entered into by the husband in order to enhance it? The law on the point seems to be as stated by Tyabji in his Mohammadan Law, 3rd Edn., page 176:
At any time during the continuance of the marriage an addition may be made to the mahr : the husband's promise to add to the mahr, if accepted by the wife, becomes incorporated into the marriage contract and binds him." : vide Kamar-un-nisa Bibi v. Hussalni Bibi ('81) 3 All. 266 (P.C.) at p. 274, Ibrahim v. Isa Rasul ('16) 3 A.I.R. 1916 Bom. 159 and Jahurdan v. Sakina Bibi ('34) 21 A.I.R. 1934 Cal. 210.
The Bombay and the Calcutta cases deal with this point specifically. On the whole, therefore, I am of opinion that the view taken by the learned Civil Judge is not sound. The necessary materials were not placed by the plaintiffs in this case to justify the Court in arriving at the conclusion that the deed of 4th July 1933 was executed in order to defraud the creditors, inasmuch as it has not been shown what was the amount due to the creditors, what was the extent of the property and whether after the execution of this deed, Mahmud Husain was in a position to pay the creditors or not. I allow the appeal, set aside the decree of the Court below and dismiss the plaintiffs' suit with costs.
8. Leave to appeal under the Letters Patent is refused.