PRAHLAD DALSUKHRAI Vs. MAGANLAL MULJIBHAI TEWAR

JUDGEMENT

(1.) THIS is a first appeal from the decision of the Assistant Bar Nyayadhish of the State of Rajpipla decreeing the plaintiffs' claim. Chhotalal Mulji, Maganlal Mulji and Sampatram Mulji were three brothers. Sampatram died on or about 24-1-1943, leaving him surviving his widow Bai Rukmini. During his lifetime Sampatram had acquired a usufructuary mortgage in respect of certain lands under a deed of usufructuary mortgage dated 4-7-1932, executed by Gumansingh Parabatsing, Hamirsingh Prabatsingh and Gemalsingh Parbatsingh of Pran-kad. On 16-6-1942, Bai Rukmini made a gift of one house situated at Naibhagol and the amount due under this deed of usufructuary mortgage to her brother Ravishankar Manishankar Pandya. On 10-10-1949, Ravishankar Manishankar Pandya executed a deed of trust in favour of certain trustees including himself for establishing "bai Bukmini Balvikas Trust Fund" and transferred the property which had been thus gifted to him by Bai Rukmini to the trustees. Bai Rukmini died some time thereafter and Chhotalal Mulji and Maganlal Mulji, the brothers of Sampatram Mulji, claiming as the surviving coparceners of the joint family or in the alternative as the reversionary heirs of Sampatram Mulji, after due notice given to the trustees, on 11-11-1942, to hand over possession of the suit lands to them, filed the suit out of which this appeal arises against the trustees who were defendants 1 to 7 in the suit and the tenants, defendants 8, 9 and 10, for actual possession of the suit lands, for future mesne profits -and for injunction together with costs.

(2.) IN the plaint which was filed the plaintiffs contended that they were joint with Sampatram and that on the death of Sampatram they became entitled to all the properties belonging to the family as the surviving coparceners of the family, that the mortgage of the suit lands was taken by Sampatram out of the funds of the joint family and that therefore Bai Rukmini had no right, title and interest in the suit lands, much less wag she entitled to alienate the same by making a gift as she did in favour of defendant 7. They further contended that in any event Bai Rukmini had a life interest in the mortgagees' rights in the suit lands and would not be entitled to alienate the same except for legal necessity, much less was she competent to make a gift of the same to defendant 7 as she did. On both these counts, one in the alternative to the other, they contended that the gift which was made by Bai Rukmini in favour of defendant 7 was void as against them and they sought to recover possession of the suit lands from defendants l to 7 and defendants 8 to 10, defendants 1 to 7 being the trustees of the deed of settlement executed by defendant 7 in favour of himself and defendants l to 6 and defendants 8 to 10 being the tenants in possession of the suit lands.

(3.) THE defences which were taken up were that the usufructuary mortgage which Sampatram had taken in respect of the suit lands was move-able property, with the result that Bai Rukmini even though she enjoyed a widow's estate therein was under the Mayukha entitled to dispose of the same in any manner she liked and that therefore the gift which she made in favour of defendant 7 was a valid gift and the plaintiffs were not entitled to the relief they claimed. There were-various other contentions taken up by both the parties in the suit, which, however, we need not advert to for the simple reason that before us the main question agitated has been whether Bai Rukmini was entitled to make a gift of the mortagees' interest in the suit lands to defendant 7.