LILABAI Vs. JAI PRAKASH

JUDGEMENT

(1.) This appeal by certificate granted by the High Court of Judicature at Bombay, Nagpur Bench, is against its judgment and decree in Appeal No. 163 of 1956 allowing the appeal and setting aside the decree in Shrimati Lilabai v. Mangilal C. S. No. 9-A of 1946, D/- 12-4-1947.

(2.) This appeal arises under the following circumstances. One Sitaram Agarwal died in 1914 leaving behind considerable property. During his life-time he had adopted one Kisanlal, and Mangilal was born to him subsequent to the adoption of Kisanlal. Mangilal had two wives, Saraswatibai and Triveni-bai. In 1938 there was a partition between Kisanlal and Mangilal, Kisanlal getting one-fourth of the property and Mangilal the remaining three-fourth. Saraswatibai had a daughter named Durgabai. Saraswatibai died on June 11, 1943. On April 15, 1944, Mangilal executed the document, Exh. D-17. This document was in the form of a receipt in favour of Lilabai and it purported to acknowledge the receipt of Rs. 8,700. It provided that in case this money was not paid by June 1, 1944, Lilabai would become the owner of the land mentioned therein from June 1, 1944. Mangilal was not able to pay the money and Lilabai brought a suit, No. 9-A of 1946, against Mangilal and Mst. Durga-bai claiming specific performance of the alleged contract contained in Exh. D-17. It appears that in 1944 Mst. Durgabai had brought a suit against Mangilal and Mst. Trivenibai and some others, claiming possession of the property, rendition of accounts and mesne profits on the ground that the property in suit belonged to her mother, Mst. Saraswatibai, as her stridhan, and that she was the heir. This suit was dismissed by the Additional District Judge, Wardha, on January 27, 1947.

(3.) During the pendency of suit No. 9-A of 1946, the plaintiff was born on November 1, 1946, but he was not impleaded in the suit and the suit proceeded against Mangilal and Durgabai. In this suit details of Rs. 8,700 was given as follows: