PISHORI LAL Vs. MAYA DEVI

JUDGEMENT

(1.) Bhagat Ram mortgaged with possession his one-half share in the property belonging to him and his brother Amritsaria, in favour of one Kura Mal for Rs. 950.00. Thereafter, he remortgaged it with possession for Rs. 950.00 with Pishori Lal on Phalgun 9, 2002 Bk. and Pishori Lal paid off the previous mortgagee. Bhagat Ram then executed a rent note in favour of Pishori Lal mortgagee in token of having taken the mortgaged portion on rent at Rs. 3.00 per mensem from him. This rent deed was executed on the same day on which the mortgage was executed in favour of Pishori Lal. Bhagat Ram then executed two further mortgages of the same property for Rs. 99.00 each in favour of Pishori Lal on Baisakh 20, 2003 Bk. and Jeth 7, 2003 Bk. On February 10, 1947, Bhagat Ram gifted his share in the said property in favour of his wife Smt. Maya Devi. On July 28, 1950 Pishori Lal obtained a decree against Bhagat Ram for the recovery of arrears of rent. In execution of that decree, the equity of redemption of Bhagat Ram was sold in open auction and was purchased by Pishori Lal. He also obtained the necessary sale certificate and symbolical possession of the portion of property belonging to Bhagat Ram. Subsequently, Pishori Lal filed a suit for exclusive possession of the share purchased by him by partition. A partition decree was passed in his favour on June 14, 1958 and the portion marked in ink in site plan No. 2 attached with the instrument of partition was decreed in his favour. Pishori Lal then applied for the execution of his final decree in the partition suit but was obstructed by Smt. Maya Devi on the plea that she was in possession the house on her own account. The Executing Court upheld her claim with the result that Pishori Lal was forced to file a suit for declaration under Order 21 rule 103 of the Code of Civil Procedure against Smt. Maya Devi and her husband Bhagat Ram and his brother Amritsaria. Smt. Maya Devi alone contested the suit by raising a number of pleas. The learned trial Court framed the following issues :-

(2.) The learned counsel for the appellant has vehemently argued that the gift alleged to have been made by Bhagat Ram in favour of Smt. Mava Devi was not legal and the appellant had the right to contest its validity. The argument proceeds that Smt. Maya Devi as her own witness stated that the gift in her favour was made by her father-in-law and not by her husband. From this statement it is sought to be urged that she was never aware of the gift made by her husband in her favour and, therefore, never accepted it. Under Section 122 of the Transfer of Property Act, acceptance of the gift during the life time of the donor is necessary to make the gift valid and effective. I however, find no force in the submission of the learned counsel. The gift deed is a registered one and it recites that it was made by Bhagat Ram in favour of his wife Smt. Maya Devi and not by his father in favour of his daughter-in-law. It may be that Smt. Maya Devi, being an illiterate lady, was mistaken and the fact that she was in possession of the gift deed and produced it in Court in support of her title proves that she had accepted the gift and was aware of it. So far as the delivery of possession is concerned, in the first place, it is not necessary that delivery of the gifted immovable property must take place but even if it is necessary, she was in possession of the gifted property. The gift in her favour was, therefore, valid in law.

(3.) The learned counsel for the appellant then submitted that it was open to him to urge that the gift was hit by the provisions of Section 53 of the Transfer of Property Act as it had been made to delay and defeat the creditors of Bhagat Ram. This plea was taken in the plaint but no averment was made that Pishori Lal was a creditor of Bhagat Ram on February 10, 1947, when the gift was made by him in favour of his wife, or that there was any other creditor of his on that date. As a mortgagee, Pishori Lal was a secured creditor and the mortgaged property, even if gifted by Bhagat Ram in favour of Smt. Maya Devi, continues to remain the security for the mortgage debt of Pishori Lal. That debt was neither delayed nor defeated by the gift. Mention of no other creditor has been made in the plaint. As I have said above, even it is not mentioned that Pishori Lal, apart from being the mortgagee, that is, secured creditor, was an ordinary creditor of Bhagat Ram for any amount whatoever. On these facts, it cannot be said that the gift was made by Bhagat Ram in favour of his wife Smt. Maya Devi with a view to delay or defeat his creditors. This plea is also repelled.