DAKH KANWAR Vs. GAJRAJ

JUDGEMENT

(1.) THIS second appeal has been directed against the judgment of the District Judge, Jodhpur, who held that the appellants before this Court being universal donees were liable to satisfy the claim of the respondents. 2. Jalam Chand and his sons, respondents before this Court, purchased a shop from jugraj by virtue of a deed of sale (Ex. P. 5) dated 15th September, 1946. THIS deed was registered on 7th November, 1946. Madan Lal, who was at one time a co-parcener of Jugraj claimed that he was the exclusive owner of the shop in dispute and relied on a 'fargati' dated 8th August, 1946, by virtue of which he had become the exclusive owner of the shop. He instituted a suit against Jalam Chand and his sons and Jugraj for setting aside the purported sale by Jugraj and obtained a decree in his favour on 25th April, 1949. Jalam Chand and his sons thus having lost their rights under the sale deed (Ex. P. 5) instituted a suit against Jugraj, Smt. Dakh Kanwar and Smt. Gaverja for refund of Rs. 400/-, being the sale price of the shop in dispute plus Rs. 200/- by way of interest. He further claimed a sum of Rs. 253/-for the expenses which he had incurred in defending the suit for setting aside the sale instituted by Madan Lal. Smt. Dakh Kanwar is the mother of Jugraj and Smt. Gaverja is his wife. They were impleaded as defendants Nos. 2 and 3 by Jalam Chand and his sons on the ground that on 7th November, 1946, Jugraj had transferred his entire movable and immovable property in favour of these two ladies. The three defendants in answer to Jalam Chand's suit pleaded that the sale in question was without consideration and the deed was executed under undue influence. The defendants pleaded that Jalam Chand and his sons had due notice of the 'farguti' and consequent knowledge that Jugraj had no right and interest in the shop which he purported to sell to Jalamchand and his sons. It was also contended that Jugraj was mentally unsound and is an opium eater. The mother and wife of Jugraj denied their liability. The trial court decreed the plaintiffs' suit for Rs. 400/- and Rs. 100 interest and Rs. 115/6/9 on account of expenses. Jugraj remained satisfied with this decision but Smt. Dakh Kanwar and Smt. Gaverja preferred an appeal before the District Judge, Jodhpur. It was urged before him that the sale was without consideration and a malafide transaction to the knowledge of Jalam Chand and his sons. Further under no circumstances could the mother and the wife of Jugraj be made liable for the plaintiffs' claim. The learned District Judge allowed the respondents' claim for the sale price and dismissed the rest of their claim. 3. Against this judgment of the learned District Judge, Smt, Dakh Kanwar and Smt. Gaverja the mother and wife of Jugraj respectively have preferred this second appeal. Cross objection for a claim of Rs. 193/8/- have also been preferred by the respondents. 4. I have heard Shri Hasti Mal Parekh for the appellants and Shri H. C. Jain for the respondents. No body appeared for Jugraj and he is apparently indifferent to this appeal. 5 It has been urged on behalf of the appellants that sec. 128 of the Transfer of Property Act has not been specifically pleaded by the plaintiffs and no liability could be fastened against the appellants in the absence of such a plea. Even if such a plea was made out by the plaintiffs the appellants urge that on the date of the deed of gift, namely, 27. 11. 1945 no debt was due from Jugraj and no liability accrued against him. The debt came into existence only on 24. 5. 1949 when the sale in favour of Jalam Chand and his sons was set aside. It was next argued that the Transfer of Property Act came into force in Marwar on 5th March, 1949, and, therefore, no liability accrued against the appellants on a transaction which took place earlier than this date by invoking sec. 128 of the Transfer of Property Act. The deed executed by Jugraj in favour of the appellants Smt. Dakh Kanwar and Smt. Gaverja although labelled as deed of gift was in fact for consideration of the money which Jugraj had received from the 'stridhan' of Smt. Gaverja. Therefore, the document being for consideration, sec. 128 of the Transfer of Property Act did not apply 6. The respondents have in their cross objection urged that the sum of Rs. 193/8/- was wrongly disallowed by the learned District Judge. 7. The points which arise for consideration may be formulated as follows: (1) Whether the plaintiffs have raised any plea which attract the applicability of sec. 128 of the Transfer of Property Act? (2) If so, whether the provisions of sec. 128 of Transfer of Property Act or the principle underlying it can be invoked by the respondents for fastening liability against the appellants? (3) Whether the District Judge has erred in disallowing some of the respondents' claim? Point No. 1: The plaintiffs have in paragraph 4 of the plaint averred that the defendant No. 1 Jugraj had transferred all his rights and liabilities to defendants Nos. 2 and 3 viz. , Dakh Kanwar and Gaverja. These defendants Nos. 2 and 3 are in possession of all the properties of the defendant No. 1 and, therefore, they have been impleaded as defendants. Jugraj in his written statement has admitted paragraph 4 of the plaint. Defendants Dakh Kanwar and Gaverja have denied their liability in their written statement. In the Additional written statement, submitted by Jalam Chand on 8. 8. 1957 it is pleaded that a notice was published in the Jodhpur Govt. Gazette dated 14. 12. 1946 that a deed of gift dated 28. 11. 1946 was executed in favour of defendant Nos. 2 and 3 (Dakh Kanwar and Gaverja) by Jugraj. They are, therefore, liable as 'universal donees'. Now the elementary principle of law of pleading is that facts and not law are to be pleaded. The defendants Nos. 2 and 3, appellants before this Court, were characterised as "universal donee", a legal term entirely covering the principle underlying Sec. 128 of the Transfer of Property Act. In fact the marginal note of Sec. 128 is also "universal donee". The contention of the learned counsel that no plea based on the principle contained in Sec. 128 of the Transfer of Property Act was raised is contrary to the pleadings on record and must be rejected as untenable. Point No. 2:it is admitted by the learned counsel for the parties that the Transfer of Property Act came into force in Marwar in 1949 and did not in terms apply to the dispute before me. The question then is whether the principles contained in the Transfer of Property Act were adopted in Marwar. My attention was invited to Bhoor Chand Vs. Tulcha (1), where it was held that the principle contained in Sec. 68 of the Transfer of Property Act were applicable in Marwar. In Mathra Das Vs. Bhagwan Das (2) it was held that: " As regards the first point, it is true that the Transfer of Property Act itself with all its technicalities is not in force in Marwar but its provisions as to matter of principle are commonly followed especially when the law enunciatred therein coincides with the principles of equity, justice and good conscience and we consider that the provisions of Sec. 5 (e) do not lay down a mere technical rule of law but involve an equi table principle which may be adopted by the courts of Marwar when giving a decision on matters which are dealt with by that section. " 8. In Jeet Mal Vs. Rughnath (3) a Division Bench of this Court held that: " However, there are authorities in which it has been held that though in Marwar the Transfer of Property Act was not applicable with all its technicalities, its provisions as to matters of principle were commonly to be followed especi ally when the provisions of the Act were consis tent with the principles of equity, justice and good conscience. " 9. In the face of these decisions it was contended by the learned counsel for the appellants that the provisions of Sec. 128 are technical in nature and not equitable in character and, therefore, its principles are inapplicable. I have given anxious consideration to this part of the argument. Sec. 128 of the Transfer of Property Act reads as under: " Universal done. Subject to the provisions of Sec. 127, where a gift consists of the donor's whole property, the donee is personally liable for all the debts due by and liabilities of the donor at the time of the gift to the extent of the property comprised therein. " 10. The principle which this section enunciates saddles a universal donee with an obligation to pay the debts and liabilities of the donor to the extent of the property received by the donee. THIS doctrine in essence appears to be an extention of the principle of the axiom "quiesensit commodum dobet at sentire onus". (He who receives the advantage ought also to suffer the burden ). Is this principle a technical rule of law or a doctrine of equity? As Snell says equity is "a portion of natural justice" and in my opinion the rule embodied in Sec. 128 of the Transfer of Property Act is not rule of mere legal technicality but is based on canons of natural justice, morality and public policy. He who takes by way of gift the entire earthly wealth of the donor must also meet the donor's liability to the extent of the gift he has received. It is no mere legal technicality but has its foundations in basic morality. It is a doctrine which good conscience will not permit to be departed from. The learned counsel's contention, therefore, that Sec. 128 is merely a legal technicality in my opinion must be rejected. 11. It was next contended that the donor Jugraj had given his entire property on 27. 11. 1946. The debt against Jugraj came into existence on the date when sale was set aside, namely, on 24. 5. 1946 no debt was due by Jugraj and, therefore, the principle of Sec. 128 of the Transfer of Property Act will not govern the case. Reliance was placed on Madan Gopal and another Vs. Sati Prasad another (4) and Daya Ram Vs. Harcharan Das (5 ). These cases relate to a debt incurred by a Hindu father without legal necessity. An examination of these cases is not necessary because the principle in Sec. 128 does not relate to debt alone but applies to liabilities as well. Sec. 128 until its amendment by Act XX 1929 merely contained the word "debt". By this 1929 Amendment Act the word "and liabilities" were added. The word "debt', means a sum"payable in respect of a money demand recoverable by action" e. g. Bharat National Bank Vs. Bishan Lal (6 ). Presumable to give a broader base to the obligation which devolved on a universal donee while accepting a gift the words "and liabilities" were added in the section. The word liability appears to be a term of wider import. In Jowitt's Dictionary of Eng. Law Vol. 11 P. 1085 the meaning attached to the word liability is as under: " the condition of being actually or potentially subject to an obligation, either generally, as including every kind of obligation, or, in a more special sense, to denote inchoate, future, unascertained or imperfect obligations, as opposed to debts, the essence of which is that they are ascertained and certain. Thus when a person becomes surety for another, he makes himself liable, though it is unascertained in what obligation or debt the liability may ultimately result. " 12. The connotation of this word 'liability' there fore, would show that the day Jugraj purported to sell and receive the sale price from Jalam Chand he incurred a liability regardless of the fact when it came to be adjudicated. THIS liability thus arose before the deed of gift was executed in favour of the appellants. It, therefore, passed on to the universal donees. The property conveyed by deed of gift is considerable. No body suggests that it is inadequate to discharge the small liability resulting from the purported deed of sale. Therefore, the appellants are clearly under an obligation to discharge this liability. 13. It was also contended that the deed executed in favour of Dakh Kanwar and Gaverja though labelled as a gift in essence it was not so because it was sustained by the consideration of Gaverja giving her 'stridhan' to Jugraj for pursuing his litigation. The words employed in the deed (Ex. P. 4) are : *** These recitals in my view do not have the effect of changing the character of the deed. There is a vague reference to Jugraj having spent 'some part' of his wife's 'stridhan'. The amount remains unspecified. Smt. Gaverja his wife had not entered the witness box to say how much was spent and whether she gave that part, assuming she did give, of her 'stridhan' by way of been or gift. "whether the affection shown by Gaverja in sacrificing a part of her 'stridhan' persuaded Jugraj to alienate all his property by way of gift or the resentment which his mother expressed prompted him to execute Ex. P. 4 is all a matter of conjecture. At several places the deed has been characterised as 'bakhshishnama'. Smt. Dakh Kanwar in her notice in the Jodhpur Gazette as well as in her deposition has unreservedly described the transaction as gift. Reading the document as a whole I am satisfied that it is a deed of gift and nothing else. 14. The result of this discussion is that Ex. P. 4 is a deed of gift; appellants universal donees to whom principles of Sec. 128 of the Transfer of Property Act applied and they are under an obligation to discharge the liability arising from the purported sale by Jugraj, Point No. 3 : The respondent has claimed in his cross objections two items. A sum of Rs. 100/- has been claimed by way of interest as the sum of Rs. 400/- was wrongly retained by Jugraj. Interest by way of damages cannot be granted when interest has been claimed by the respondents on merchandise usage. In fact interest by way of damages cannot be allowed in law; of, Bengal Nagpur Railway Co. Ltd. , Vs. Ruttanji Ramji and others{7 ). THIS claim for interest by the respondents therefore stands rejected. A sum of Rs. 93/8/- was paid by the respondents to Shri Madan Lal. THIS fact has been found by the learned trial court in favour of the respondents. It stands proved by the entries in the respondents bahis and the receipts granted by Madan Lal. The receipt Ex. 8 although does not mention the amount but it is wrong to say that there is no receipt for this amount. The receipt read with the deposition of plaintiff amply proves that the amount has been paid. THIS cross objection is, therefore, allowed only to the extent of Rs. 93/8/ -. 15. The appellants' appeal, therefore, fails and is dismissed with costs. The respondents' cross objections succeed to the extent of Rs. 93/8/- only and the decree of the District Judge is altered to this extent. There will be no order as to costs in the cross-objections. .