THAKUR DONGAR SINGH Vs. LADLI PRASAD BHARGAVA

JUDGEMENT

(1.) This appeal relates to a house situated in Ujjain City of Madhya Pradesh. The respondent purchased it from Jassabai, the widow of the one Guman Singh. The appellant attached the suit house and the respondent preferred a petition under Order 21, Rule 58 C.P.C. That petition having been allowed the appellant filed a suit under Order 21, Rule 63 C.P.C., out of which this appeal arises.

(2.) The appellant (he died during the pendency of the appeal and his eldest son was brought on record) averred in the suit that Guman Singh and his cousin Onkar Singh who were members of a joint Hindu family were having monetary dealings with him and on 27-5-1945 executed an agreement Ext. P. 2 admitting their liability for Rs. 32,500 and also undertaking to pay it by the year 1951. The dispute between them was referred to arbitration and on the basis of the award given by the arbitrator a decree was obtained and in execution of the decree the disputed house was attached by him and the respondent had no title to it. The Trial Court held that Guman Singh and Onkar Singh were members of a joint Hindu family of which Guman Singh was the karta and that the decree in favour of the appellant was one validly obtained. The High Court on appeal by the respondent took the view that Ext. P. 2 was a collusive document, that the evidence as to Guman Singh and Onkar Singh being joint is equally worthless and highly interested and allowed the appeal, and set aside the judgment of the Trial Court. The plaintiff has, therefore, filed this appeal. We find ourselves in agreement with the learned Judges of the High Court.

(3.) The land on which the house has been built was purchased in the name of Guman Singh in 1939. He had executed three mortgages over this property in favour of one Rajabali even before the date of Ex. P. 2. It was to discharge those mortgage deeds that Guman Singh's widow executed the sale deed in favour of the respondent on 1-8-1951. The very recitals in Ex. P. 2 on which the claim of the appellant depends are tell-tale and seem to have been prepared with an eye on litigation. It is not necessary to set out the contents of the document at length. But it is obvious that it is intended, as the learned Judges of the High Court have rightly held, more for supplying evidence about the preferential claim of Onkar Singh as against Guman Singh's widow Jassabai rather than for making provision for securing the amount due to a creditor. It contains a testamentary disposition by Guman Singh in favour of Onkar Singh of all his properties and makes no provision whatsoever for his wife. It may also be mentioned that Guman Singh had executed a registered will on 8-6-1945 in favour of his wife Jassabia giving absolute powers of disposition in respect of all his properties and its truth and validity cannot be doubted. Admittedly the appellant's knowledge of court proceedings was of nearly 50 years; yet this document, which creates a mortgage, was not even on a stamped paper, nor was it registered. It was signed not only by Onkar Singh and Guman Singh but also by one Mangilal, who is described as Mukhtyar Aam of Guman Singh Curiously enough it was to this very Mangilal that the disputes between the parties are said to have been referred for arbitration. The arbitration agreement was executed on 29-2-1952 and the award is said to have been given on 4-3-1952. The suit was filed on 5-3-1952 as one for enforcement of the award and on the same day Onkar Singh appeared and consented to a decree being passed in terms of the award. The indecent haste with which all these proceedings have been gone through shows the collusion between Onkar Singh on the one had and the appellant on the other. That Ex. P. 2 has been executed so as to bear a date before the will in favour of Jassabai and after the 3 mortgages in favour of Razabali by Guman Singh also shows the purpose for which it was executed. Curiously, Mangilal who has signed Ex. P. 2 as the Mukhtyar Aam of Guman Singh and is, therefore, a party to the document, and was also the arbitrator was not examined in Court. It is true that Onkar Singh' son as well as his nephew gave evidence on behalf of the appellant but this is one of those cases where the circumstances speak more eloquently than the witnesses.