Sir Binod Mitter:
This is an appeal from a decree of the Chief Court of Oudh, dated 11th February 1927, which varied a decree of the Subordinate Judge of Mohanlal Ganj, Lucknow, dated 31st May 1926, and decreed in part the plaintiff's suit with costs.
The appellant, on 4th November 1921, instituted a suit against Haji Siddique Hasan (hereinafter referred to as defendant 2) to which suit plaintiff-respondent 1 (who is the wife of defendant 2) was not a party, for the recovery of money partly as damages for breach of contract and partly by way of recovery of advances made to defendant 2 for the purchase of goods as commission agent. This suit was decreed for a sum a little over Rs. 24,000 on 25th February 1924, but on appeal was reduced by about Rs. 4,000.
After the appellant had obtained his decree in the first Court and whilst an appeal was pending, the appellant, as decree-holder, attached plots 44, 44a, 45 and 46 situated on the New Sanitary Road, Lucknow, with buildings thereon, in execution of his decree, alleging that the same belonged to defendant 2. The present plaintiff (his wife) claimed under O. 21, R. 58, Civil PC, that these plots were not liable to attachment as a portion of plot 45 and the whole plot 46 was wakf property, and the remaining portion, i. e., a portion of plots 45 and 44, had been transferred to her in lieu of her claim for dower. Her claim was dismissed under the provisions of O. 21, R. 61, Civil PC, on 26th January 1925, on the ground that the wakf deed and the deed of gift were merely fictitious documents created with a fraudulent intention and that defendant 2 and not the plaintiff was in possession of the said plots with the buildings thereon.
Plaintiff thereupon instituted the suit out of which this appeal arises on 12th February 1925, against the defendant for a declaration that the deed of wakf and deed of gift dated 19th November 1916, and 30th June 1917, respectively, are valid and that the said premises were not liable to attachment and sale.
The learned Subordinate Judge came to the conclusion that the wakf and the deed of gift did not represent genuine transactions, that there never was a bona fide intention on the part of defendant 2 to make the wakf and the gift, and that the same were never given effect to. He further held that these documents were executed to defeat any claim which the appellant might make against defendant 2, and that the plaintiff was not entitled to the relief she claimed in the suit.
The learned Judges on appeal in the Chief Court reversed that judgment and hence this appeal.
Defendant 2 was a tahsildar of the appellant on a small salary until the year 1912, when he went on a pilgrimage to Mecca, and after his return from the pilgrimage he was employed by the appellant till 1921 as a commission agent to purchase grain and other articles for the appellant's estate and was paid remuneration at the rate, of one anna in the rupee on the price of the commodities purchased and also his expenses. In the course of his employment as commission agent large sums of money from time to time were advanced by the appellant to him for the purchase of goods and these sums and the amounts due to him for goods supplied were entered in the account books of the appellant's estate, but he had control over a portion of such sums and could draw upon the same.
In March 1913 defendant 2 purchased the said plots 45 and 46 which adjoined a ruined mosque. After his purchase, with the sanction of the municipality, he erected buildings on a portion of plot 45 and on plot 46 at a cost of about Rs. 15,000, and also erected a new mosque, which he alleged cost him Rs. 2,000, and thereafter on 12th August 1915, he informed the secretary of the Municipal Board of Lucknow that he had transferred the said premises to his wife, i. e., the plaintiff, and requested the secretary to put the plots in her name in place of his own in the office records. The secretary gave effect to this request on 2nd October 1915.
On 19th November 1916 defendant 2 by a registered document purported to create a wakf of a portion of plot 45 and of plot 46 with the buildings which had already been erected thereon and appointed himself a mutwalli.
On 20th April 1920 the plaintiff wrote to the Municipal Board alleging that sue herself had purchased plots 45 and 46 for Rs. 735 and that the same should be conveyed in favour of her husband, defendant 2. He vouched the correctness of her allegations in the application. In pursuance of her request a formal registered deed of transfer was duly executed in favour of defendant 2 as the absolute owner on 14th May 1921.
Plot 44 was originally purchased in March 1913, by one Baqar Husain, who, by an application dated 9th April 1913, to the Municipal Board, had this plot transferred to his brothers Haidar Husain and Ahmad Beg. They executed a registered sale deed of this plot in favour of defendant 2, but no conveyance was ever executed by the Municipal Board with reference to the plot. He obtained sanction from the Municipal Board to build on this plot.
Under O. 21, R. 63, the decision in the said claim proceedings was final subject to the result of this suit which the plaintiff instituted for a declaration that the deeds are valid and that the said properties are not liable to be attached in execution of the decree of the appellant. In their Lordships' opinion she is not entitled to this declaration unless she establishes to their satisfaction that the deeds in question were bona fide and were intended by defendant 2 to pass the beneficial interest in the premises in favour of the mutwali of the wakf and the plaintiff respectively.
Their Lordships will first consider the validity of the deed of gift.
Plaintiff was married to defendant 2 about 1898 or 1899. It is alleged that the dower was fixed at Rs. 30,000. No kabirnama is produced to corroborate the allegation as to what amount, if any, was fixed for the dower.
Defendant 2 later on married another lady, and certain properties known as kakoori properties, which were the only immovable properties which defendant 2 had in 1909, were alleged to have been given to her by way of dower, so that from 1909 he possessed no immovable property.
Plaintiff's case is that she had been pressing for the payment of her dower from 1909, but nothing seems to have been done till the time when the deed of gift was executed in 1917. Without expressing any opinion as to whether a kabirnama is usual or not where the dower fixed is a large sum of money their Lordships feel that it is incumbent on the plaintiff to prove by cogent evidence that the dower remained unsatisfied until 1917, nearly 19 years after her marriage. The evidence on this point is entirely oral and the only persons who spoke to it were the plaintiff and her husband, defendant 2. There is no corroboration of their evidence on this point from any other evidence and they are both interested parties. Defendant 2 was examined before the trial Judge and he wholly disbelieved him, nor did he accept the evidence of the plaintiff, who was examined on commission. It will serve no useful purpose to go into any detailed examination of their evidence, but the same has been placed before their Lordships with great care by the learned counsel who appeared for the appellant and the plaintiff-respondent. Their Lordships are clearly of opinion that the evidence of the plaintiff and defendant 2 on this point, as also on all material points, is wholly untrustworthy. They therefore hold that the story of the unsatisfied dower is untrue.
The evidence of the plaintiff and her husband is that she spent Rs. 5,000 or Rs. 6,000 in erecting certain structures on the plot of land which was vacant at the time of the deed of gift, and that the money spent was found by the sale of her jewellery. The evidence on this point is extremely discrepant and highly improbable and unsatisfactory. No person to whom it is alleged the ornaments were sold has been called to corroborate this story. Their Lordships are unable to accept the evidence as to the way in which the ornaments were sold and the sale proceeds realized and spent in erecting the structures under the supervision of her son-in-law Mukhtar Mahommad. This witness was examined before the trial Judge who disbelieved his evidence. Their Lordships are also of opinion that this witness is untrustworthy, and they do not believe the story that the structures were erected on the vacant portion of the property given to her out of the proceeds of the sale of her jewellery. A portion of plot No. 45 forms the subject matter of the gift, and it is a noteworthy fact that on 20th April 1920 she alleged that she herself had purchased plots Nos. 45 and 46 for Rs. 735, for which she alleged that she held a receipt. No such receipt has been exhibited in this case. In the conveyance of plots Nos. 45 and 46, executed on 14th May 1921 it is also stated that she herself had originally purchased the said premises, and it is difficult to see why, if plot No. 45 had been purchased by her, a gift of it should or could have been made to her by her husband in 1917.
By 1917 defendant 2 had denuded himself of all his savings, moveable or immovable, and their Lordships cannot believe the statement of defendant 2 that he intended to part with the only property of which he was possessed in favour of the plaintiff.
Defendant 2 from 1913 was carrying on a business which to a certain extent was of a hazardous character, and he had the opportunity of utilizing the money of the appellant for his own purposes, and the effect of this deed of gift certainly would be to defeat or delay any claim which the appellant might have at any time against him. Their Lordships are of opinion that defendant 3 was always the true owner and in possession of the property which was the subject matter of the gift from the time of his purchase in 1913 and 1915, respectively, and that this deed was false and fraudulent. The suit on this point therefore fails.
Their Lordships will next consider the evidence with regard to the wakf which comprised plot 46 and a portion of plot 45.
The deed of wakf, of which defendant 2 is now the mutwalli, and the deed of gift are intimately connected with each other. Their Lordships have already held that the evidence of the plaintiff and defendant 2 is false with respect to the deed of gift and, in their opinion, their evidence with regard to the deed of wakf must be approached with great suspicion and subjected to the strictest scrutiny. The fact that the deed of gift is a false and fraudulent transaction does not by itself prove that the deed of wakf is also false and fraudulent, but it does throw upon the plaintiff a heavy burden to prove that the same was a bona fide document and not executed with a view to defeat or delay the claims, if any, of defendant 1 upon defendant 2, Defendant 2 paid a substantial portion of the purchase money and there is no evidence as to who paid the balance. Defendant 2 must have done so as the plaintiff did not suggest till April 1920, that she had paid the whole of the purchase money herself-a story which is obviously false, as defendant 2 paid by his own cheque a portion of the purchase money. From 2nd March 1913 to 12th August 1915, the name of defendant 2 appeared in the records of the Municipal Board as the purchaser. Their Lordships have already adverted to the fact that on the last mentioned date he informed the Municipal Board that he had transferred the same to his wife and requested that her name be substituted for his in the office records. This request was acceded to on 2nd October 1915. He had however executed no document in her favour. His explanation is that he had fallen ill and had made an oral will in her favour. Their Lordships agree with the trial Judge that this story of the oral will is untrue. It is noteworthy that the letter of 12th August 1915 does not in any way indicate how the transfer had been made, but in 1916 he executed the wakfnama, treating the property as his own.
In 1920 the following application was made to the Municipal Board:
With compliments, I purchased plots 45 and 46 situate on the Ganga Prasad Road, when the road was being opened, from the Municipal Board, for Rs. 735, for which I hold receipt. But formally no sale dead was executed; therefore through this application I inform you that a sale deed in respect of the plots mentioned above be got executed in favour of my husband, Molvi Mohammad Siddique Hasan Saheb. Whatever costs may be incurred shall be accepted by me. The said Molvi Saheb also agrees to this transfer, and I shall be obliged.
(Sd.) Bismillah Begam, wife of Molvi
Mohammad Siddiqua Hasan
Saheb, Tahsildar, of Ganga
Prasad Road. (Autograph).
20th April 1920,"
"I put it in writing that I agree to this application, word for word, and I accept the transfer of the plots mentioned above in my favour.
(Sd.) Siddique Hasan." (In English).
Defendant 2 was cross-examined with regard to this document before the trial Judge and he stated that "the signature on both these papers" (meaning thereby this document and Ex. A-16)
"were made when these papers were blank and I made over the papers to Abdul Baqi so that he might put in an application for the execution of the sale deed by the Municipal Board and get the deed after its execution."
He denied the plaintiff's signature on this document, but could give no reason why her signature should have been forged on the original document. His evidence on this point in the claim proceedings has also been exhibited. Their Lordships consider his evidence on this point to be untrustworthy.
Exhibit A-16 is a copy of the receipt by him for the sale deed in respect of the wakf properties, and their Lordships do not accept his story that Ex. A-16 was handed over to Abdul Baqi in blank and that the latter was not told as to who had bought the land and in whose name. He stated in his evidence in this suit as follows:
"The sum of Rs. 11,000 or so which was left with me after the sale of the ancestral property as stated above was entrusted by me to Haji Ejaz Ali, my cousin. I did not take any receipt or other writing from him about the money. He made a note of it in his account register. He used to keep accounts."
The account register referred to has not been produced, nor is there any corroboration of this story. In his evidence in the suit he said that he did not spend any money out of his earnings as commission agent for the buildings but in the claim proceedings he stated that the balance of the money came from the commission agency of the Mahmudabad estate. His evidence in the claim proceedings, which has been exhibited in this suit, differs from his present evidence in many material particulars.
His evidence that he realized Rs. 4,000 or Rs. 5,000 by the sale of his own ornaments to Sakhawat Ali does not commend itself to their Lordships. Ac cording to his own admission he was only earning Rs. 100 or Rs. 125 per mensem from the commission agency business, and his personal expenses and those of his wife came to under Rs. 75 per mensem. He was not able to give any explanation worthy of serious consideration as to how he found the money spent in erecting the building.
It is, however, strenuously urged before their Lordships by plaintiff's counsel that the advocate for the appellant admitted in the trial Court that the money of the appellant over which he had control as a commission agent was never misappropriated by defendant 2 and therefore it is not open to the appellant to make any suggestion that he utilized any portion of such money for the purpose of the construction of any of the buildings. The actual statement of the appellant's advocate in the trial Court is as follows:
"It is not defendant 1's Case that the deeds of gift and wakf were executed fraudulently by reason of misappropriation of the estate money made by defendant 3 during the years in which the said deeds were executed. Our case is that defendant 2 used to handle large sums of money belonging to the estate-money which came into his hands as Tahsildar or money which used to be advanced to him as commission agent.
There were always balances in favour of the estate and against defendant 2. Defendant 2's motive in executing the deed of wakf and the deed of gift was to save his property from being made liable in case the estate at any time tried to recover money left with him."
Counsel for the appellant here submitted that this admission merely meant that the appellant was not taking on himself the burden of proving that any particular sum of money belonging to the appellant was spent by defendant 2 in constructing the buildings, but he submitted that the admission of the advocate in the trial Court did not preclude him from arguing that defendant 2 could not possibly have erected the buildings out of his own money. Their Lordships do not believe that defendant 2 spent the said Rs. 15,000 out of the balance of the sale proceeds of his immovable property or his jewellery.
The conveyance of 14th May 1921, transferred the property absolutely to defendant 2, his heirs and representatives, and there is no reference whatever in it that a portion of the properties was wakf.
Plaintiff has relied on Ex. 48 as proving that defendant 2 was spending money out of the income of the wakf for purposes of wakf, but it is a document in his handwriting. Chittas in support of it have not been produced or proved. The trial Judge found that Ex. 48 is not a genuine memorandum of accounts, nor did he believe the evidence of defendant 2 that the chittas had been lost. There is no independent corroboration from other evidence or documents that Ex. 48 was a genuine memorandum of accounts or that the chittas had been lost. The proof of its genuineness or of the loss of the chittas therefore depends largely upon the evidence of defendant 2, and as their Lordships can not place any reliance on his evidence, they are unable to hold that the findings of the trial Judge on these points were not proper findings, and their Lordships are not satisfied that plaintiff or defendant 2 ever gave effect to the wakf or to the deed of gift. The plaintiff and not defendant 2 at the time of the execution of the deed of wakf was the ostensible owner of the properties covered by the deed. Although he executed the deed in 1916 and became on its execution the mutwalli of the same, yet in 1921 he procured the conveyance of the properties in his own name. If he had really intended to create a wakf it is difficult to see why the conveyance was not executed in his favour as a mutwalli.
On a careful consideration of the whole evidence their Lordships have come to the conclusion that defendant 2 executed the deed of wakf, but without any intention of divesting himself of his ownership of the property, and that his real intention was to utilise the document should it become necessary as a shield against any claims that the appellant might have against him either then or at any future time. Their Lordships are therefore of opinion that this appeal should be allowed and the decree of the Subordinate Judge should be restored and that the appellant should have his costs in the Chief Court and of this appeal. They will therefore humbly advise His Majesty accordingly.