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Chhotey Singh Vs. Ramesh Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1946All195
AppellantChhotey Singh
RespondentRamesh Chand and ors.
Excerpt:
.....power of disposal over it like any other hindu widow, and as there was no legal necessity for the sale-deed in question it was entirely illegal and not binding upon the plaintiff. the learned civil judge, after a consideration of the entire evidence on the record, recorded his finding that it was clearly proved that the property in dispute was purchased out of the income of the property which mt. gaura did not treat the property in suit as accretions to her husband's estate lay on the defendants and they had completely failed to discharge it. gaura clearly showed an intention on her part to treat the property as an accretion to her husband's estate and the courts below had gone wrong in holding otherwise. from the facts of this case it seems to me perfectly clear that the property in..........along with some other property in favour of one mt. janka, widow of ram lal, by means of a sale-deed dated 30th september 1926, for a consideration of rs. 2000. the plaintiff went on to allege that ram singh was the nearest reversioner to jograj singh at the time when the succession opened, namely, some 15 days after the execution of the sale-deed dated 30th september 1926. earn singh executed two gift-deeds in favour of the plaintiff of all his property including the property in suit on 7th may 1929 and 12th december 1934 (exs. 14 and 15). the plaintiff's case further was that during the last days of mt. gaura, bhagwan singh and bakhtawar singh, who were sister's sons of jograj singh, and puttu singh, son of bakhtawar singh, lived with mt. gaura and under their influence mt......
Judgment:

Wali Ullah, J.

1. This is a plaintiff's appeal against the decree of the lower appellate Court affirming the decree of the Court of first instance which dismissed the suit with costs. The suit was for possession over zamindari property on the allegation that the property belonged to one Jograj Singh who died in 1886 leaving a widow, Mt. Gaura: that Mt. Gaura was in possession of her husband's property as a Hindu widow and that the property in suit was also an accretion to her husband's estate. It may be mentioned here that the property in suit was acquired by Mt. Gaura in the year 1910 admittedly out of the savings of the income derived from her husband's property in her possession. Prior to the sale in 1910 the property in question had been taken by Mt. Gaura under a mortgage in 1902. Mt. Gaura transferred this property along with some other property in favour of one Mt. Janka, widow of Ram Lal, by means of a sale-deed dated 30th September 1926, for a consideration of Rs. 2000. The plaintiff went on to allege that Ram Singh was the nearest reversioner to Jograj Singh at the time when the succession opened, namely, some 15 days after the execution of the sale-deed dated 30th September 1926. Earn Singh executed two gift-deeds in favour of the plaintiff of all his property including the property in suit on 7th May 1929 and 12th December 1934 (Exs. 14 and 15). The plaintiff's case further was that during the last days of Mt. Gaura, Bhagwan Singh and Bakhtawar Singh, who were sister's sons of Jograj Singh, and Puttu Singh, son of Bakhtawar Singh, lived with Mt. Gaura and under their influence Mt. Gaura executed the sale deed dated 30th September 1926. It was also alleged that Chaturbhuj defendant along with Puttu Singh got Mt. Gaura to execute the sale-deed in question which was farzi and without consideration and without legal necessity.

2. The suit was filed against Mt. Janka, who, however, died and the names of. Chaturbhuj and his sons were brought on the record as her legal representatives. The two sons of Chaturbhuj claimed succession to Mt. Janka's interest on the basis of a will executed by her in their favour. The suit was contested substantially on the grounds: (1) that the property in suit was acquired from the money which Mt. Gaura has received from her own parents and (2) that the sale-deed was for consideration and was justified by legal necessity. There were various other pleas including the one alleging that the property in suit was the stridhan property of Mt. Gaura and she had full right of disposal over it. The learned Munsif found that only Rs. 600, had been proved to have been paid to Mt. Gaura at the time of the registration of the sale-deed but that no legal necessity had been proved. He also found that the property in question was not acquired out of the savings or the income of Jograj Singh's property and, in the alternative, he found that taking that the property had been acquired out of the savings of her husband's property, it was the absolute property of Mt. Gaura who had full power to alienate the same and the plaintiff's suit must fail on that ground. In view of his findings that the property in dispute was the absolute property of Mt. Gaura and the plaintiff had no right to question her alienation the learned Munsif dismissed the suit with costs.

3. On appeal, it was contended that Mt. Gaura was not the absolute owner of the property in dispute and therefore she had only a limited power of disposal over it like any other Hindu widow, and as there was no legal necessity for the sale-deed in question it was entirely illegal and not binding upon the plaintiff. The learned Civil Judge, after a consideration of the entire evidence on the record, recorded his finding that it was clearly proved that the property in dispute was purchased out of the income of the property which Mt. Gaura obtained from her husband. According to that Judge it was also clear from the evidence that she never intended to treat this property as a part of the widow's estate, but that she always treated it as separate and self acquired property and dealt with it as such. The learned Judge further held that the property in dispute being separate and self acquired property of Mt. Gaura she had absolute right over it and the plaintiff had no right to challenge the alienation made by her in favour of Mt. Janka deceased. He also affirmed the findings of the trial Court that the consideration of Rs. 600 only was proved and the sale-deed in dispute was not executed for legal necessity.

4. It has been strongly contended by the learned Counsel for the appellant that the burden of proof that Mt. Gaura did not treat the property in suit as accretions to her husband's estate lay on the defendants and they had completely failed to discharge it. It was further contended that the various documents executed by Mt. Gaura clearly showed an intention on her part to treat the property as an accretion to her husband's estate and the Courts below had gone wrong in holding otherwise. Learned Counsel for the appellant has strongly relied upon Bhagwan Das v. Bittan : AIR1945All227 and Maseetunnissa Bibi v. Mahesh Chandra : AIR1944All228 . These are two Bench decisions which proceed upon the views expressed by their Lordships of the Privy Council in Naba Kishore v. Upendra Kishore ('22) 9 A.I.R. 1922 P.C. 39 where it was laid down that it is for the party who says that the widow kept her self-acquisition separate from the husband's estate to prove that it was so. In view of the decisions mentioned above, it is clear that it was for the defendants in this case to establish that Mt. Gaura kept the property in dispute separate and distinct from her husband's estate. From the facts of this case it seems to me perfectly clear that the property in dispute was at first obtained by Mt. Gaura under a mortgage, but Mt. Gaura took care to obtain the mortgage-deed in favour of a relation named Changa Singh. Later on, when the full ownership passed to Mt. Gaura she took the sale-deed not in her own name, but in the name of Bhagwan Singh who was her husband's sister's son. Thereafter there was litigation about this property. Suit No. 119 of 1924 was instituted by Ram Singh against Mt. Gaura and therein Mt. Gaura set up the plea in her written statement (para. 4), to the effect that the property in suit was purchased by her with her own money, clearly implying thereby that that was her own property as distinct from any accretion to her husband's estate. It is well settled that the question whether the property purchased by a Hindu widow from the usufruct of the property obtained by her from the last male holder is an accretion to the estate depends upon her intention as to how she proposes to keep the property: vide Mulla's Hindu Law, p. 168, 9th Edn., where the learned author says:

The trend of decisions is that the case should be determined by the intention of the widow. If she does nothing to indicate an intention to make the savings part of her husband's estate, or to justify the inference that she wished them to revert to her husband's heirs, the savings are her stridhan which she may dispose of by deed or will. But if she indicates any such intention or does anything to justify any such inference, she takes only a widow's estate in them, and she cannot dispose of them except for legal necessity and on her death they will pass to her husband's heirs.

5. The case in Suraj Prasad v. Mt. Gulab Dei : AIR1937All197 , lays down the same principle. It was held in that case that a purchase by a daughter of some property out of the savings of income from her estate in the name of her husband affords a clear indication of her intention to treat the property as her own. In this view the learned Judges were fortified by the case in Nirmala Sundari Dassi v. Deva Narayan Das : AIR1927Cal868 . In the present case, therefore, in view of the facts mentioned it is quite clear to my mind that the finding of the learned Judge in appeal that Mt. Gaura never intended to treat this property as a part of the widow's estate, or as an accretion to her husband's estate was fully justified. I do not see how it can be contended with any show of reason that this finding is vitiated and that the learned Judge misplaced the onus of proof on wrong shoulders. It seems to me that the lower appellate Court, although it has mentioned three decisions including one decision of this Court, prior to the stage when it recorded its findings on this question, has not really based its findings on the question of the onus of proof. In my judgment, therefore, this finding is not vitiated in any sense of the term. In this view of the matter it seems to me that the sale-deed must be judged on the footing that it was an alienation effected by the widow of her stridhan property and as she had absolute right over the property and could dispose of it as she liked there can be no question of any legal necessity, or even of the passing of consideration. Further the case set up by the plaintiff-appellant has all along rested on the plea that this property was really an accretion to the husband's estate which came into the hands of Mt. Gaura and he has not set up any claim to this property as one of the stridhan heira of Mt. Gaura. It is, therefore, unnecessary to consider whether the plaintiff has got any right to demand that the defendants should make out a good title through the sale-deed effected in their favour on 30th September 1926. The property in question having been found to be the stridhan property of Mt. Gaura and the plaintiff not having set up a case of succession to Mt. Gaura, it is wholly irrelevant to consider whether the property validly passed from Mt. Gaura to the defendants. Consideration of this question must, therefore, be limited to the case set up by the plaintiff, namely, that he was entitled to the property in question as it was an accretion to the husband's estate in the hand's of Mt. Gaura. It is well settled that under the Hindu law such acquisitions by a widow, if they are left undisposed of at the time of her death, descend to her stridhan heirs and not to the heirs of her husband. In this view of the matter, it is not even necessary to consider whether the transfer in favour of the defendants was supported by consideration and was justified by legal necessity. In the present case, however, both the Courts below have concurred in finding that at any rate Rs. 600 out of the total consideration of Rs. 2000 passed hands inasmuch as this was paid to the executant at the time of the registration of the sale-deed. In view of the above, I am quite satisfied that there is no force in this appeal which is accordingly dismissed with costs.


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