1. This is a first appeal by the plaintiffs against a decree of the learned Subordinate Judge of Buland shahr decreeing their claim in part. The I plaintiffs brought a suit asking for a declaration that hypothecation bond, -dated 20th October 1923, executed by defendant 1, Mt. Maid Kunwar, wife of Sita Ram, in favour of defendant 2 Daulat Ram was null and void and 'ineffectual against the plaintiffs and that the amount could not be realised from the property in dispute. Four items of property were mentioned in the plaint. The Court of first instance has granted a decree that the hypothecation bond is without consideration, and, therefore null and void and ineffectual against the plaintiffs but only in regard to a portion of the property in dispute which is in area 22 bighas, 10 biswas and that the rest of the claim has been dismissed.
2. The facts which gave rise to the present suit are as follows: The pedigree as stated in the plaint with certain additions is as follows:
Bishan Lal Bhoja
| | | |
Lachhman, childless, Ram Sukh, childless Har Sukh. |
Mt. Sobha, (widow), | | |
Mt. Maido, (daughter) | |
| | |
Hargopal, Sita Ram=Maid Kunwar, |
childless. wife, defendant 1. |
| | |
Angan Chhaturia Hardeo
| | |
Korhe _________________________________ |
| | | | |
| Baldeo Jaisukh, Ram Baksh |
Sallan | childless. | |
childless. Dunger Singh Kallu, deceased.|
plaintiff 1. |
| | | |
Ganga Sahai, Daulatram, Chhajju, Gangararm,
deceased. defendant 2. deceased. plaintiff 2.
3. The additions are that Lachhman had a widow, Mt. Sobha, and Ram Sukh had a daughter Mt. Maido. During the lifetime of Sitaram there was a mortgage-bond executed by him on 22nd January 1890 in favour of Phul. Singh for Rs. 99. He died in that year and his widow Mt. Maid Kunwar, defendant 1, succeeded to his estate. She proceeded to execute several bonds as follows: 13th September 1899 mortgage-bond in favour of Tulshi Ram for Rupees 500. This was in full payment of the earlier bond executed by her husband. 6th September 1911 Mortgage-bond for Rs. 800 by Mt. Maid Kunwar in favour of Tulshi Ram. 5th September 1923 Mortgage-bond in renewal for Rs. 1,600 by Mt. Maid Kunwar in favour of Sohan Lal and Puran Mal. The terms of this bond are that the interest was to be 12 annas per cent per mensem with yearly rests. Within less than two months of the execution of this mortgage-bond Mt. Maid Kunwar executed another mortgage-bond on 20th October 1923 for Rupees 1,675 in favour of defendant 2, Daulat Ram. The entire amount of this bond is to be used for paying off the bond of Rs. 1,600 to Tulshi Ram. The rate of interest on this bond was 11 annas per cent per mensem, the interest to be paid every six months compoundable. The rate of interest is therefore higher than in the bond of 5th September 1923, because it was compoundable with six monthly rests instead of yearly rests. It is the bond of 20th October 1923 which has been assailed by the plaintiffs.
4. The first question which arises is whether this bond is for a genuine consideration and was a genuine document or whether it was for a fictitious consideration and merely executed by way of a gift to defendant 2. This question has been raised again in the cross-objection of defendant 2 and has been argued before us. It is clear in the first place that there was no necessity whatever for the widow to execute this second bond shortly after the first bond. She did not get anything out of the second bond except the payment of the earlier bond. It is further stated in regard to the consideration by the person Puran Mal who was paid the Rs. 1,675 that Daulat accompanied by Mt. Maid Kunwar came to him with money and that Daulat does not do money lending. The widow Mt. Maido admitted in evidence that there was recently a case against Daulat, in which she spent some Rs. 2,000 in the de-fence of Daulat, although she was not a party to the case. The examination of Daulat shows that he is only a money lender, in a very small way and it is only once in his life that he obtained a decree, which was for the small sum of Rs. 184, and that his money lending transactions are limited to loans of Rs. 100 at a time. He was quite unable to say how be could obtain the comparatively large sum of money of Rs. 1.675, and he did not produce any documentary evidence to confirm his allegation. From the evidence on the record we are clearly of the opinion that the bond in question of 20th October 1923 is entirely a fictitious transaction and that no consideration was received by the widow for this bond. She herself paid the money to Puran Mal and in order to embarrass the plaintiffs and to benefit Daulat she executed this fictitious deed in favour of Daulat. The plaintiffs therefore as reversioners of Sita Ram are entitled to obtain a declaratory decree in regard to this bond.
5. The major question in this appeal however is to what extent the decree is to be granted as regards property, and this question has given rise to various interesting legal points. The evidence shows that Sita Ram died in the year 1890 and in the later part of that year there was a bond executed by Mt. Maido Kunwar as his widow. It is in evidence that Mt. Maido, daughter of Ram Sukh, died some fifteen days after Sita Ram and Mt. Sobha died about 1903 and mutation for her property was granted by order of 27th June 1903. Lachhman the husband of Mt. Sobha, and Ram Sukh the father of Mt. Main do, were uncles of Sita Ram. They were separate from Sita Ram and on the death of Lachhman his property was held by Mt. Sobha his widow, and on the death of Ram Sukh his property was held by his daughter, Mt. Maindo. These two persons Lachhman and Ram Sukh died before Sita Ram. Now on p. 65 of the printed paper-book there is akhewat of the settlement of 1295 Fasli corresponding to 1888 which shows Mt. Maindo and Mt. Sobha as owning each a half share of certain property in the village in question Kalupura thok Ram Sukh amounting in area to 57 bighas 5 biswas in khevvat No. 20, and also along with Sita Ram a smaller share in khewat No. 29, the total area of khewat No. 29 being only 15-biswa's. On p. 69 of the same settlement there is an entry which showed in the same thok Ram Sukh that Sita Ram was the owner in khewat No. 27 of an area of 22 bighas 10 biswas which has wrongly been headed as 'rent.' Now in the khewat of 1324 Fasli printed on p. 89 we have the entry for Thok Ram Sukh khewat No. 23 of Mt. Maindo Kunwar, wife of Sita Ram, for 80 bighas, 2 biswas and also for 12 shares of khewat No. 25, area 15 biswas. It is contended and we think correctly that all the property in this village which was owned by Sita Ram was 22 bighas, 10 biswas and that he did not hold the remaining property which was of considerably larger extent and that that property was held by Mt. Sobha and Mt. Maindo both of whom survived him. After the death of this widow and his daughter Mt. Maid Kunwar had no right under Hindu law to succeed to the property which they had been holding. But admittedly this property was mutated in her name after the death of these two ladies Mt. Sobha and Mt. Maindo, daughter of Ram Sukh, and she has been holding it ever since their deaths which are beyond the period of twelve years' limitation.
6. The question before us is what is the nature of the estate which Mt. Maid Kunwar has acquired by holding the properly of Mt. Sobha and of Mt. Maindo, daughter of Ram Sukh. She has held it without a legal right to do so and the reversioners among whom are the plaintiffs have not questional her night. She therefore has acquires some title by prescription. On the one hand it is contended for the defendants respondents that she has acquired an absolute title by prescription and that the property has become her stridhan and that she therefore has an absolut disposing power of this property. On the other hand, it is contended fort the plaintiffs-appellants that she has acquired in this property by prescription merely the limited right of a Hindu; widow. The test, in our opinion, to be applied in each case is what is the evidence which indicates in what cha-racter she took possession of the property in question and in what character did she hold it. We have her own statement in her deposition on p. 14:
My husband predeceased Mt. Maindo Lachman's widow, Mt. Sobha, died some 27 years ago I inherited her property also.
7. This statement indicates that she claimed to have taken the property by. inheritance. We understand that by use of the word 'inheritance' she meant that she claimed through her husband Sita Ram. Her claim therefore was that she was entitled to the limited estate of a Hindu widow. She did not put forward any other claim to hold a larger estate. Further in cross-examination she made the following statements:
Mt. Maindo, daughter of Ram Sukh, had adopted a son about which there was a litigation between my husband and her and later on between me and her. I took the case in appeal and my husband had fought it in the lower Court. Mt. Maindo lost the case in appeal and her name was-expunged from the 'khewat' and mine substituted in her place.
8. This indicates that in the litigation in question, she (Mt. Maindo) continued the case which had been begun; by her husband, being entitled to continue it as his widow, and she won that case as his widow and obtained mutation in that capacity. The statement is altogether inconsistent with the.-idea that she set up any claim otherwise than as a widow of Sita Ram.. There is a further admission in the cross-examination: 'Doonger and: others did not oppose my possession over Mt. Sobha's lands.' This indicates also that she was claiming as a Hindu-widow.
9. Now on this finding of fact we approach the law on the subject. learned Counsel has taken us over a good many rulings, but we consider that the law in the case is governed by the ruling of their Lordships of the Privy Council laid down in Lajwanti v. Safa: Chand AIR 1924 PC 121. In the ruling their Lord-Ships state on p. 306 (of 22 A.L.J.):
It was then argued that the widows could only possess for themselves; that the last widow Devi would then acquire a personal title; and that the respondents and not the plaintiff were the heirs of Devi This is quite to misunderstand the nature of the widows' possession. The Hindu widow, as often pointed out, is not a life renter but has a widow's estate, that is to say, a widow's estate in her deceased husband's estate. If possessing as widow she possesses adversely to any one as to certain parcels, she does not acquire the parcels as stridhan but she makes them good to her husband's estate.
10. In the present case we hold that the lady in question did take as a. Hindu widow and therefore we consider that by prescription she acquired the limited estate of a Hindu widow in the land which had been possessed by the uncles of her husband. learned Counsel referred to the following rulings: Kali Charan v. Piari A1R 1924 All 740, Bikhdeo Tiwari v. Sukhdeo Tiwari : AIR1928All45 , Sum; Balli Singh v. Tilakdhari Singh AIR 1928 Pat 220 and Satgur Prasad, v. Raj Kishore AIR 1919 PC 60. It is a question of fact in each case whether the widow claimed to take through her husband and so limited her claim to a claim for a widow's estate, in which, case she would prescribe for the benefit of her husband's estate, or whether there is no evidence that she so limited her claim, in which case she will take an absolute estate. In all these rulings it was held as a matter of fact that there was no evidence that the widow in question had limited her claim to a widow's estate and therefore the Courts held that the widow had taken an absolute estate as her stridhan. But in the present case we find as a matter of fact that the widow did claim through her husband and her claim therefore was to the limited estate of a Hindu widow. Accordingly the present case differs on facts from the cases mentioned in the rulings cited by learned Counsel.
11. In Lachhan Kunwar v. Manorath Ram (1895) 22 Cal 445, there also was a case where it was held that the possession of the father's widow was not shown to have been in the capacity of a Hindu widow. That case also differed from the facts in the present case. Accordingly we hold that the widow acquired in the property held by the uncles of Sita Ram the limited estate of a Hindu widow. Therefore the widow had in all the property which she held the limited estate of a Hindu widow. Therefore on our finding that the bond was fictitious and without consideration any effect of this bond would be limited to the lifetime of the widow and the plaintiffs are entitled to the declaration' in question. We note that on p. 55 it is stated in the bond in question that the mortgage is made of one-half of khewat No. 23 comprising 80 bighas 2 biswas. That is apparently a part of the land which was owned by the uncles of Sita Ram. The plaintiffs, therefore are entitled to the full decree for which they asked the lower Court, and accordingly we allow this appeal and decree the suit of the plaintiffs in full with costs in both Courts. The cross-objections are both dismissed with costs.