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Bhup Singh Vs. Jhamman Singh and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1922All169; 65Ind.Cas.724
AppellantBhup Singh
RespondentJhamman Singh and ors.
Excerpt:
hindu law - legal necessity--simple money-bond executed by female owner--decree--execution--life-interest liable to sale--no question of legal necessity arises. - .....durga kunwar was the daughter of one bhagirath singh, durga kunwar had two sons, ram singh and bhup singh, she succeeded to the property after the death of her father and on the 15th of october 1914 durga kunwar and ram singh executed a simple bond in favour of the plaintiffs respondents, jhamman singh and others. at that time the present appellant bhup singh, the second son of durga kunwar, was a minor. the plaintiffs-respondents then sued on their simple bond. the suit was against durga kunwar alone as ram singh had died in the interval, and on the 27th of may 1918 they obtained simple money decree against musammat durga kunwar. on the 15th of august 1918 before they had put their decree into execution durga kunwar surrendered her life interest in the property in dispute her son,.....
Judgment:

1. This appeal arises out of a suit for a declaration that certain property in possession of the defendants is liable to sale in execution of a decree which the plaintiffs obtained against one Musammat Durga Kunwar. It appears that Musammat Durga Kunwar was the daughter of one Bhagirath Singh, Durga Kunwar had two sons, Ram Singh and Bhup Singh, She succeeded to the property after the death of her father and on the 15th of October 1914 Durga Kunwar and Ram Singh executed a simple bond in favour of the plaintiffs respondents, Jhamman Singh and others. At that time the present appellant Bhup Singh, the second son of Durga Kunwar, was a minor. The plaintiffs-respondents then sued on their simple bond. The suit was against Durga Kunwar alone as Ram Singh had died in the interval, and on the 27th of May 1918 they obtained simple money decree against Musammat Durga Kunwar. On the 15th of August 1918 before they had put their decree into execution Durga Kunwar surrendered her life interest in the property in dispute her son, the appellant Bhup Singh. After this, attachment of the property in dispute was made in execution of the decree of Jhamman Singh and others. Bhup Singh objected to the attachment on the ground that the property was his and on the 15th of February 1919 he got an order releasing the property from the attachment. The present suit has now been brought by the decree-holders respondents for a declaration that the property was liable to sale in execution of their decree. The defence raised by Bhup Singh was, that Durga Kunwar had only a life interest and her life interest Only could be sold, that he was in possession, that the deed of relinquishment executed by Musammat Durga Kunwar was not collusive and fictitious, that the attachment took place after the transfer in favour of the defendant was made, and that the plaintiffs had no right to get the property sold. The Trial Court came to the conclusion that the assignment by Musammat Durga Kunwar of her rights in the property was made to assist her in defrauding her creditors. It went on to hold that the assignment in question was fictitious, collusive and fraudulent. It also found that the bond was not executed for legal necessity. In the result it gave a decree to the effect that the life interest of Durga Kunwar could be sold and the sale would, therefore, be inoperative after her death. Both parties appealed. Durga Kunwar died during the pendency of the appeals and the defendant had his appeal dismissed. The plaintiffs' appeal, however, same to a hearing and the learned Judge of the Court below agreed with the finding of the First Court that the surrender of her estate by Musammat Durga Kunwar in favour of Bhup Singh was fictitious. He, however, went on to hold that the simple bond was executed in order to pay off a mortgage and for legal expenses and in the absence of any rebutting evidence he held that it was executed for legal necessity and the decree on it was, therefore, binding on the estate. In our opinion the question of legal necessity was totally irrelevant to the decision of this case. The bond in this case did not purport to create a charge on the property and no question of legal necessity arose, On the finding of the Court below that the surrender to Bhup Singh was a fictitious one, or, in other words, that it had not taken place, the life interest of Musammat Durga Kunwar was the only interest liable to be sold in execution of the plaintiffs-respondents' decree. In oar opinion the consideration which the learned Judge applied towards the question of legal necessity was not required That question is foreign to the present suit. In our opinion the decision of the lower Appellate Court was incorrect. We, therefore, set it aside and restore the decree of the Court of First instance, but in the peculiar circumstances of the case we make no order as to coats of this litigation.


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