1. These two cross-appeals, Regular Second Appeal No. 260 of 1948 and Regular Second Appeal No. 335 of 1948, are directed against the same judgment of Mr. Jagan Nath, Senior Subordinate Judge, Hissar, dated the 21st of January, 1948.
2. Suraj Bhan had a mistress, Ram Piari, who is the defendant in the case. On the 31st of July, 1944, Suraj Bhan executed a deed of lease in favour of Ram Piari for a period of 20 years of a divided one-third share of the house which was a part of the ancestral property. Rs. 300/- are alleged to have been received as rent for 12 years and thereafter Rs. 25/- per annum was to be paid as rent by Ram Piari. The sons of Suraj Bhan alleging that they were members of a joint Hindu family and that the house was joint family property brought a suit for declaration that the lease and the gift were not binding on them. The suit was contested by Ram Piari on the ground 'inter alia' that the transfer, although shown as a gift, was in fact a sale for considerations which were due by Suraj Bhan to her and in consideration of services rendered. The suit was dismissed by the trial Court, but on appeal the Senior Subordinate Judge upheld the lease but set aside the gift.
3. Counsel for the appellant relies on a passage in Mulla's Hindu Law and submits that according to Hindu Law joint family property cannot be transferred to an Avarudhastri or a mistress for maintenance nor is a man bound to maintain her: see p. 609 of Mulla's 'Hindu Law'. He also submits that according to Indian Law past co-habitation is not a good consideration for transfer of property and he relies on 'KISANDAS v. DHONDU', 44 Bom 542 and 'SABAVA YELLAPPA v. YAMANAPPA SABU', 35 Bom L R 345. It has been found by the appellate Court that the story put forward by Ram Piari that the gift was in lieu of ornaments and monies paid by Ram Piari to and on behalf of Suraj Bhan has not been made out. As regards the lease the finding of the learned Judge is most unsatisfactory. The evidence has not been properly understood, neither analysed nor proper findings given, if the story of monies given to or on behalf of Suraj Bhan is disbelieved. In my opinion, it has not been proved, therefore, that Ram Piari paid any money to or on, behalf of Suraj Bhan.
4. The gift has, in my opinion, been rightly set aside as a joint Hindu family property cannot be gifted by a member of a joint Hindu family to his mistress. It was so held in ' RAB PRASAD SINGH v. CHHOTE MUNAWAN', 12 Luck 469. where it was held that the gift of Joint Hindu family property by a father during his lifetime in favour of his concubine is void and invalid. Similar is the view of Mulla at p. 609 of his Hindu Law as stated above. Coming now to the lease, the finding of the learned Judge, as I have said, is most unsatisfactory. If no money was paid as none was paid in this case then the only consideration which could be used in favour of the lease also was past cohabitation which was an immoral consideration and could not support a transfer. I am therefore of the opinion that the learned Judge was in error in upholding the lease.
5. In the result, the appeal of the sons,Regular Second Appeal No. 260 of 1948, is allowed and the appeal of Ram Piari, RegularSecond Appeal No. 335 of 1948, is dismissed,and as a result the suit of the plaintiffs willsucceed and is decreed, but the parties willbear their own costs throughout.