JAIPRAKASH MANGILAL AGARWAL Vs. LILABAI

JUDGEMENT

(1.) This appeal raises some interesting questions under Hindu Law. The circumstances leading to this appeal may be briefly set out as follows Sitaram Agarwal of Arvi owned considerable property, both moveable and immoveable. He adopted one Kisanlal as a son. After the adoption of Kisanlal, a son named Mangilal was born to him from his wife Parubai. After the death of Sitaram in 1914, his two sons Kisanlal and Mangilal succeeded to the property by right of survivorship. They continued to enjoy the property as coparceners till 1938. In that year, there was a partition between Kisanlal and Mangilal and, in that partition, Kisanlal was awarded 1/4th share and Mangilal 3/4th share in the joint family property. Mangilal got 13 malguzari villages and lands to the tune of about 1600 acres in addition to cash and move-ables of considerable value. Mangilal had two wives, Saraswatibai and Trivcnibai. A daughter was born to Mangilal from Saraswatibai, called Durgabai. Saraswatibai died on 11-6-1943. The plaintiff was born to Mangilal from Trivenibai on 1-11-46. Fields S. Nos. 1, 2, 4 and 18 of mouza Mohommadpur, measuring 95.19 acres and assessed at Rs. 158/-, formed part of the property belonging to Mangilal. Mangilal was a malguzar of this village and originally the lands were sir lands. They, having come under personal cultivation, became his khudkasht lands. It appears that Durgabai claimed ownership in respect of these lands on the ground that they were the stridhan property of her mother Saraswatibai and that she got them by inheritance from her mother. On 15-4-1944 Mangilal executed a document styled as receipt in favour of defendant No, 1 Lilabai Vrijpaliji Bhate for Rs. 8700/-. The consideration of Rs. 8700/- was made up as follows:

(2.) The trial Court held that the suit properties belonged to Mangilal and not to Durgabai. It further held that the transaction underlying the receipt was neither sham nor colourable nor intended to be inoperative. It also held lhat a consideration of Rs. 8700/- was received by Mangilal under the said receipt. Consequently, the trial Court decreed Lilabai's claim for specific performance- Mangilal preferred First Appeal No. 118 of 1947 in the High Court of Nagpur. Pending the appeal, he died on 21-11-1951. The present plaintiff was then a minor being a boy of about five years. Trivenibai, who has been added as defendant No. 2 in the present suit, filed applications (Exhibits D-19 and D-20) praying that the present plaintiff and she herself should be substituted in place of the deceased Mangilal. Those .applications having been granted the names of the present plaintiff and Trivenibai were substituted and Trivenibai was shown as the guardian of the present plaintiff. Eventually the appeal was dismissed. The plaintiff filed Civil Suit No. 6-A of 1954, which has given rise to this appeal, on 12-7-1954, against Lilabai, the decree-holder for a declaration that the decree obtained in Civil Suit No. 9-A of 1946 is not binding on him. He impleaded his mother Trivenibai as a pro forma defendant to the suit. The present plaintiff and Trivenibai preferred an appeal by special leave to the Supreme Court. The Supreme Court upheld the decision of High Court and the judgment of the Supreme Court is reported in Trivenibai v. Smt. Lilabai, AIR 1959 SC 620. Pending the present suit, Lilabai obtained a lease from the Court in execution of the decree for specific performance and also secured possession of the properties. Thereafter the plaintiff amended the plaint and asked for the relief of possession.

(3.) It will now be convenient to summarise the allegations made by the plaintiff in support of Ms prayer for setting aside the decree obtained by Lilabai in Civil Suit No. 9-A of 1946. The property in suit formed part of the joint family property of the plaintiff and Mangilal. This property was originally the ancestral property of Sitaram and that after Sitarama's death, it came into the hands of Kisanlai and Mangilal by survivorship and in the partition between Kisanlai and Mangilal, the suit property fell to the share of the latter. No consideration passed under the receipt, dated 15-4-1944, and the receipt was passed to save the property for the family from the threat held out by Durgabai to claim the property for herself. Assuming that the consideration passed, the transaction amounted to a transaction of loan. The plaintiff, therefore, was not bound by the decree for specific performance passed in favour of Lilabai.