GAYA DEEN Vs. AMRAUTI

JUDGEMENT

(1.) THIS is a plaintiff's appeal arising out of a suit for possession of a property which was in possession of one Mst. Newasi while she was alive and which she had, during her life-time, transferred by means of a sale deed to the respondent. The facts briefly stated are as follows: there were three brothers, Debi Prasad, Shiva Prasad and Mahabir, who formed a joint Hindu family. Shiva Prasad died in 1906 leaving Smt. Sambodha as his widow; Mahabir died in 1916 leaving Smt. Newasi as his widow; and Debi Prasad died in 1925 Leaving Smt. Tulsa as his widow. As the brothers were all members of a joint Hindu family, on the death of Shiva Prasad the estate passed to Debi Prasad and Mahabir; and on the death of Mahabir, Debi Prasad was the sole surviving coparcener of the property, and in law became the exclusive owner of the property, and the widows had only a claim for maintenance. The plaintiff-appellant is a collateral of Debi Prasad. On the deaths of Shiva Prasad and Mahabir, however, the names of their widows were entered. Smt. Sambodha's name was entered over one-third of the property and so was the name of Newasi entered over another one-third of the property. Apparently the names of Shiva Prasad, Mahabir and Debi Prasad were entered on the record as owners of the property in equal shares, though no village record has been filed in the case showing the nature of the entry.

(2.) AFTER the death of Shiva Prasad and Mahabir, Smt. Sambodha, jointly with Debi Prasad, executed a simply mortgage in favour of Gaya Deen plaintiff-appellant on 24-6-1922. In this deed of mortgage it was stated that they were mortgaging their one-third shares over which they were in possession. On 31-12-1943, after the death of Debi Prasad, Smt. Sambodha transferred her one-third share in the property to the wife of the plaintiff-appellant on the allegation that she was transferring her share which was in her possession. The necessity recited in the deed of mortgage was the payment of debts and family expenses; while in the deed of sale it was shown as Kharch Khangi, payment of Malguzari and payment of debts.

(3.) ON 18-1-1944, Newasi made a sale deed of her entire one-third share in favour of the defendant-respondent. In this deed she stated that she was transferring the share in her possession and that the transferee would become absolute owner of the property. It would be observed that neither Smt. Sambodha nor Smt. Newasi claimed absolutes title in themselves in respect of the properties which they were transferring.