LAXMI NARAIN Vs. BANSHI LAL AND ANOTHER

JUDGEMENT

(1.) JUDGMENT : - 1. This second appeal arises out of a suit for possession of two houses. Admittedly, these two houses along with another house, which is not in dispute, belonged to one Bachcha, and after his death, his widow Smt. Sheoraji entered into possession thereof. On 30th August, 1940 Smt. Sheoraji executed two deeds of gift, one in favour of Makundi defendant No. 2 with respect to the two houses in suit and the other in Favour of Laxmi Narain plaintiff with respect to the third house. Shortly after tae execution of the deeds of gift Smt. Sheoraji died. On 1st September 1948 Makundi sold one of the houses conveyed to him under the deed of gift to Mohd. Yusuf who in his turn sold it to Banshi Lal defendant No. 1. The other house conveyed to Mukandi under the deed of gift was also sold by him to Banshi Lal on 3rd September 1948. The present suit was filed by Laxmi Narain plaintiff as the reversioner of Bachcha, for possession of the houses acquired by Banshi Lal under the sales mentioned above. It is not in dispute that the plaintiff is Bachchas daughters son and that he was the presumptive reversioner during the lifetime of Sent. Sheoraji and became the actual reversioner after her death.

(2.) BANSHI Lal contested the suit. He alleged that Bachcha had made an oral will of his entire property in favour of Mukandi, who was his sisters son, according to which Smt. Sheoraji was to remain in possession of the property so long as she lived and Mukundi was to enter into possession after her death. He further alleged that a little after the death of Bachcha, a dispute arose between Mukundi and Laxmi Narain plaintiff, the former claiming the property of Bachcha as a legatee and the latter as heir. This dispute, according to Banshi Lal, was settled by a family arrangement between the rival claimants and Smt. Sheoraji and it was in pursuance of and in accordance with that family arrangement that the two deeds of gift were executed by Smt. Sheoraji with the consent of the plaintiff and he was, therefore, bound by the arrangement and was precluded from challenging the validity and effectiveness of the deed of gilt executed by Smt. Sheoraji in favour of Makundi and of the sale deeds under which Banshi Lal had acquired the houses in dispute. Section 41 of the Transfer of Property Act and S. 115 of the Evidence Act were also pleaded in defence.

(3.) BANSHI Lal defendant examines a number of witnesses, including the marginal witness to the two deeds of gift executed by Sent. Shoraji Devi, in proof of the family arrangement. They have testified to the fact that the claims made by Makundi and Laxmi Narain appellant with regard to the property of Bachcha led to a dispute and that the dispute was settled and differences were resolved by an arrangement under which Smt. Sheoraji was to gift the houses in suit to Makundi and the third house to Laxmi Narain. According to the evidence of these witnesses, the two deeds of gift dated 30th August 1940 were executed by Smt. Sheoraji to effectuate the agreement reached by Makundi. Laxmi Narain and Smt. Sheoraji and at the time of execution of the deeds of gift Laxmi Narain, who had consented to their execution, was also present. This evidence was believed by the lower appellate court and the appellants denial of the arrangement or the agreement and of all knowledge of the deeds of gift was not accepted as correct. The lower appellate court held that although there was no recital in the gift deeds showing that they had been executed in pursuance of a family settlement the circumstances proved it to the hilt that an agreement had been reached and the two deeds were Executed in pursuance thereof.