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Tulshi Prasad Vs. Jagmohan Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1934All1048; 152Ind.Cas.92
AppellantTulshi Prasad
RespondentJagmohan Lal and ors.
Cases ReferredGajadhar v. Jagannath
Excerpt:
- - the execution of the sale-deed in suit is admitted and this in the case of pardahnashin lady means intelligent execution; 5,000, which was subsequently satisfied in full. 8,000 and this, too, was satisfied on 1st november 1899, on 21st may 1888, he executed a mortgage for rs. 2,000. this mortgage was satisfied on 1st november 1899. thus all that these mortgages show is that ganga ram had occasionally to borrow money but it is clear that in each of the above eases he was able in the course of time to re-pay his creditor. it is well settled that an alienation made by a hindu widow for the purpose of discharging a debt due by her husband is binding on the reversioner even though the recovery of the debt which was discharged had become time-barred at the time of the transfer made by..........on 20th november 1904, i.e., nine months after her husband's death mt. mohani kunwar executed a sale-deed for rs. 20,000 in respect of certain property in the village of baghwala in equal shares in favour of matru mal and three brothers by name ulfat rai, gulzari lal and mulchand. ulfat rai, and gulzari lal were sons-in-law of ganga ram, and mt. mohani kunwar, gukari lal's wife was already dead, but ulfat rai's wife was mt. kausilla, mother of the plaintiff. the ostensible reason for this sale-deed was the obligation which rested upon mt. mohani kunwar to pay the debts of her deceased husband and it was alleged that ganga ram had actually given her instructions to this effect before his death.2. on 17th december 1913, matru mal bequeathed his half-share in this property by will to.....
Judgment:

1. This is a plaintiff's appeal. The plaintiff is a daughter's son of one Ganga Ram who died on 5th February 1904. He left a widow, by name Mt. Mohani Kunwar who died on 1st February 1922, leaving a daughter Mt. Kausilla. Tint latter died on 12th May 1922, and the plaintiff is her son. On 20th November 1904, i.e., nine months after her husband's death Mt. Mohani Kunwar executed a sale-deed for Rs. 20,000 in respect of certain property in the village of Baghwala in equal shares in favour of Matru Mal and three brothers by name Ulfat Rai, Gulzari Lal and Mulchand. Ulfat Rai, and Gulzari Lal were sons-in-law of Ganga Ram, and Mt. Mohani Kunwar, Gukari Lal's wife was already dead, but Ulfat Rai's wife was Mt. Kausilla, mother of the plaintiff. The ostensible reason for this sale-deed was the obligation which rested upon Mt. Mohani Kunwar to pay the debts of her deceased husband and it was alleged that Ganga Ram had actually given her instructions to this effect before his death.

2. On 17th December 1913, Matru Mal bequeathed his half-share in this property by will to defendant 3, and the wife (now deceased) of defendant 4. In 1910, Ulfat Rai transferred his one third share of the other moiety of the property to one Murlidhar. Subsequently, Murlidhar sued the sons of Gulzari Lal and Mulchand on a. mortgage-deed and obtained a decree and thereafter on 24th March 1918, the judgment-debtors executed a sale-deed of their two-third share in the moiety of the Baghwala property to Murlidbar. Thus Murlidhar became owner of the whole property. Defendants 1 and 2 are grandsons of Murlidhar and so they represent the half-share of the Baghwala property which had been transferred to Ulfat Rai, Gulzari Lal and Mulchand, and defendants 3 and 4 represent the half-share which had gone to Matru Mal. The sale-deed, 20th November 1904, was attested by Nainsukh Das, who is a brother of Ganga Ram deceased and by Nainsukh Das's son Kanhaiya Lal and it was also attested by Mohani Kunwar's own brother Bhojraj,

3. The plaintiff alleged that Ganga Ram was a zamindar and money-lender and carried on an indigo business, that he died in a state of solvency, that this widow was old and of feeble intellect and that the members of the family took advantage of her position and dominated her mind and in conspiracy with each other, induced her to execute this deed of sale. The defendants denied all the allegations of the plaint and they pleaded inter alia that the sale-deed was executed by Mt. Mohani Kunwar to satisfy the debts of her deceased husband, that this amounted to a legal necessity and that the sale deed is therefore binding on the plaintiff.

4. The Court below has found against the plaintiff on all material points. The execution of the sale-deed in suit is admitted and this in the case of pardahnashin lady means intelligent execution; and no argument has been addressed to us to show that in fact she did not understand the purport or import of the document or that her mind was dominated by the vendees and her husband's brother. The onus is nevertheless on the defendants to show that there was legal necessity for the sale. The sale-deed itself recites that Ganga Ram has incurred debts to the amount of Rs. 20,000, in favour of the vendees, that ho was anxious to pay the said debts and that he had instructed his wife to execute this sale-deed after his death. There is no specification of the alleged debts in the sale-deed, but evidence has been given to show that Ganga Ram was frequently in need of borrowing money. On 7th February 1884, he executed a mortgage for Rs. 5,000, which was subsequently satisfied in full. On 5th February 1885, he again executed a mortgage for Rs. 8,000 and this, too, was satisfied on 1st November 1899, On 21st May 1888, he executed a mortgage for Rs. 2,500 and this was apparently renewed on 22nd July 1889, by a mortgage for Rs. 2,000. This mortgage was satisfied on 1st November 1899. Thus all that these mortgages show is that Ganga Ram had occasionally to borrow money but it is clear that in each of the above eases he was able in the course of time to re-pay his creditor. But some decrees also were obtained against Ganga Ram which we will have to consider. On 28th August 1897, his own brother Nainsukh obtained a decree against him and other persons, and on 24th October 1899, he sold that decree to Matru Mal, the total amount then due under the decree being Rs. 1,731-2-6. One Hukurn Singh sued Ganga Ram and his wife on a mortgage and on 29th March 1897, a compromise decree was passed under which Ganga Ram had to pay the decretal money in 8 annual instalments of Rs. 400. On 16th January 1899, one Kalyan Singh obtained a decree for Rs. 483, in a suit for profits against Ganga Ram and on 11th August 1902, his brother Nainsukh obtained a decree against him for malikana dues to the extent of Rs. 984. Matru Mal's account books have been produced in this case and they purport to show that Rs. 9,000 odd were due to him from Ganga Ram. These witnesses have been produced by the defendants to depose in respect of these account books. Bhup Singh was a mukbtar of Ganga Ram for a couple of years 32 or 33 years ago and he swears that Ganga Ram used to keep account books. Deokinandan is in service of Matru Mal's nephew and Chhabela Ram is in the service of another nephew of Matru Mal and used to be a partner of Matru Mal in his indigo factory. These two witnesses have proved the entries in the books of account which are alleged to have been kept by Matru Mal. Mr. Piare Lal Banerji on behalf of the plaintiff-appellant attacks these books of account on the ground that they have not been regularly kept.

5. It is admitted by Deokinandan and Chhabela Ram that daily balances were not struck and that the account books used to be made up after an interval of 15 days or a month; but the learned Counsel has not drawn our attention to anything intrinsic in the accounts themselves which would serve to show that they are not genuine. The ledger account of Ganga Ram in these account books of Matru Mal covers the period from 1949 to 1961 sambat and there is nothing in them to suggest that they are bogus; and we have not been referred by counsel for the plaintiff to the rokar babi in respect of which Chhabela Ram and Deokinandan have stated that daily balances were not struck and that they were prepared after an interval of 15 or 30 days. Plaintiff has not even had these accounts printed. No account books of Ulfat Rai and his brothers have been produced before the Court. They were summoned by the defendants from the heirs of the aforesaid persons and their non-production is not surprising in view of the fact that plaintiff is himself a son of Ulfat Rai, Three witnesses have deposed on behalf of the defendants in respect of the account books of Ulfat Rai and others. Shanker Lal swears that he used to see them keeping accounts and Basant Lal and Banwari Lal state that in 1910 Murlidhar inspected the accounts books of Ulfat Rai and others and found that rupees 10,000 odd were due to them from Ganga Ram. Basant Lal was in the service of these brothers for 2 a' years from 1910 and Banwari Lal's uncle used to be the general attorney of Murlidhar. There is other evidence to show that in. fact Ulfat Rai and his brothers did keep accounts. In a suit between the plaintiffs mother and certain other persons a Commissioner was appointed in 1924 to take possession of any books of account which he might find in the house of Mt. Kausilla Kunwar and his report shows that he recovered three bahi khatas and certain registers. In a case between Banwari Lal and Hari Shankar, who is a son of Gulzari Lal, a list of documents was filed by a vakil on behalf of Ulfat Rai and the list shows that Ulfat Rai was producing a rokar babi from 1930 to 1935 sambat. Thus, there can be little doubt that Ulfat Rai and his brothers did keep accounts. No account books of Ganga Ram have been produced, but the plaintiff admits that the bonds and correspondence relating to Ganga Ram's indigo business are in his possession. Evidence has been given that Ganga Ram used to keep account books and we agree with the view of the Court below that his business could not have been effectually carried on without such accounts.

6. After the death of Ganga Ram, his widow had the name of Nainsukh Das mutated against certain property in the village of Gauhanpur, a fact which is relied upon by the plaintiff as showing conspiracy between Nainsukh Das and the vendees under the sale-deed. In 1915 Mt. Kausilla Kunwar sued in respect of the property at Gauhanpur, but it is sig. nificant that she sought no remedy in respect of the alienation under the sale-deed now in suit. In 1916 Nainsukh Das riposted by suing for possession of the whole of Ganga Ram's property on the ground that he and Ganga Ram were members of a joint family; and it is contended before us that the reason why Nainsukh Das allowed half of the Baghwala property to go to Matru Mai on 20th November 1904, was that ho wanted to ensure that Matru Mai would smbscquently give evidence for him it he ever had to sue for possession of the property. We find it difficult to accept that in 1904 Nainsukh Das would allow property to the value of Rs. 10,000 to go to Matru Mal in the bare expectation that he might at some future date require him sis a witness. Nainsukh Das was a near collateral of Ganga Ram and was directly interested in the property and it is in the highest degree improbable that he would have countenanced the transfer of property worth Rs. 20,000 in favour of Matru Mal and of Ulfat Rai and his brothers, unless in fact he was aware that there ware debts of Ganga Ram outstanding and due to the vendees. lie and his son Kanhaiya Lal both attested the sale-deed and it is a hair inference that they did so because they realized that there was a moral justification for the alienation. Nor do we believe that Ulfat Rai and his brothers would have agreed to the transfer of half of this property to Matru Mal unless they knew that the debts, in consideration whereof the sale-deed purported to be executed, were genuine. The sale-deed was also attested by the executant's own brother Bhojraj and it is extremely improbable that she would have consented to deprive the potential sons of her daughter Mt. Kausilla Kunwar their right of succession and to part with her own life, interest in the estate, unless there was a moral obligation upon her to do so. The fact that the sale-deed was attested by Nainsukh Das and Kanhaiya Lal and by the vendor's own brother Bhojraj and the suppression of the account books of Ulfat Rai and his brothers and also the account books of Ganga Ram, lead to a fair inference that the recitals in the sale-deed are true and that the sale-deed was executed with a view to liquidate the debts of Ganga Ram.

7. Counsel for the plaintiff has vehemently contended that the debts for the payment of which the sale-deed of 20th November 1904, purports to have been executed were time-barred and that therefore Mt. Mohani Kunwar was under no legal necessity to alienate this property. He relies on a remark of their Lordships of the Privy Council in the case of Sham Sunder v. Achhan Kunwar (1899) 21 All. 71. That was a case in which a daughter having a life-interest in certain property alienated the said property without legal necessity and at p. 83 their Lordships quote with approval from a judgment of Pontifex, J., in another case, who remarked that 'the touch-stone of the authority is necessity.' In Udai Chunder v. Ashutosh Das (1894) 21 Cal. 190, a Bench of the Calcutta High Court held that the payment by a Hindu widow of her husband's debts, though barred by limitation, is a pious debt for the performance of which a Hindu widow may alienate her property. This same view was taken in Ashutosh Sikdar v. Chaidam Mandal 1930 Cal. 351. In Bhagwat Bhaskar v. Nivratti 1914 Bom. 245, a Division Bench took the same view, but differentiated the case in which the deceased husband had repudiated the debts before his death. The view which has been taken by the above High Courts has been followed by the Madras High Court in Kondappa v. Subba (1890) 13 Mad. 189, and by the Lahore High Court in Santu Ram v. Dodan Bai 1927 Lah. 657. The question was indirectly considered by a Division Bench of this Court in Gauri Shankar v. Sheonandan 1924 All. 543. That was a case in which a father in a joint Hindu family executed a mortgage in order to satisfy a prior debt;, and so the case was not quite similar to the one before us; but on p. 388 Lindsay, J., remarked as follows:

It is well settled that an alienation made by a Hindu widow for the purpose of discharging a debt due by her husband is binding on the reversioner even though the recovery of the debt which was discharged had become time-barred at the time of the transfer made by the widow.

8. The learned Judge referred to She cases from Madras, Bombay and Calcutta of which we have already made mention. A more or less similar case came before a Full Bench of this Court in Gajadhar v. Jagannath 1924 All. 551, in which it was held that a time-barred debt can constitute a valid antecedent debt of consideration for a sale-deed executed by a father of a joint Hindu family alienating joint ancestral family property. On. p. 785 (of 46 All), Kanhiya Lal, 1, remarked:

The case of an alienation effected by a Hindu widow to pay a debt due by her deceased husband, if barred by time, presents a useful analogy for the purpose of guiding the decision of this question, It is well settled that a Hindu widow is competent to transfer the property which she has received from her husband to pay a debt due by him though it may have been barred by limitation so as to bind the reversionary heirs of her husband.

9. All the rulings of the other High Courts of which we have already made mention were referred to hi that case. We are in full agreement with this view. It is contended by counsel for the plaintiff that there is nothing on the record to show that Mt. Mohani Kunwar, at the time of the execution of the sale-deed, was aware that the debts were time-barred and that therefore she may have been under a wrong impression that the property was liable to be attached and sold in satisfaction of those debts. We do not think that there is much force in this plea, in view of the fact that she had the assistance of her own brother Bhojraj and of her husband's brother Nainsukh Das. Moreover, it has not even been proved that the debts of Ganga Ram were in fact time-barred. No plea to this effect was taken in the suit and no evidence was given to prove it. For all we know to the contrary, the debts may have been kept alive by acknowledgment or otherwise; and in any case it is extremely difficult for any one to show after so long a time whether certain debts had or had not become time-barred in the year 1904. In our opinion the view which the learned Subordinate Judge has taken is correct on all points. We accordingly dismiss this appeal with costs.


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