GANGABAI Vs. JANKIBAI

JUDGEMENT

(1.) The plaintiff in this case sued to recover possession of a part of the house conveyed under a sale-deed executed by defendant No. 1, Ramchandra, in the year 1904 in favour of the plaintiff s mother as his guardian, during the plaintiffs minority. The defendant No. 1 occupied the house as a tenant under a rent-note, which expired in February 1909. At the date of the suit his wife, Jankibai, defendant No. 2, was in possession of a part of the house now in question. The suit was filed against both of them. The defendant No. 1 died during the pendency of the suit and ultimately the suit was defended by the wife both in her own right and as the legal representative of; her husband. She pleaded that the sale-deed was a hollow transaction and that in any case she had the right of residence in that part of the house and that the purchaser must be taken to have purchased it subject to that right. There was also a plea of fraud. On a consideration of all the defences the trial Court found against her and decreed the plaintiffs claim for possession of the house Defendant No. 2 appealed to the District Court and the Additional First Class Subordinate Judge with appellate powers, who heard the appeal, raised the following point for decision : "Whether the defendant has a right of residence in the plaint house, and, if so, whether the plaintiff purchased the said house under the sale-deed, Exhibit 62, with notice of the said right of hers? it is stated in the judgment of the appellate Court that the appellant gave up all the remaining- contentions. The appellate Court came to the conclusion that the defendant No. 2 had a right 01 residence in the house and that the sale in favour of the plaintiff must be taken to be subject to her right of residence. Accordingly the decree of the trial Court was varied and a part of the house indicated in the decree was allowed to remain in the possession of Jankibai.

(2.) The plaintiff has now appealed to this Court, and it is contended on his behalf that the lower appellate Court is wrong in its view of law that the wife has a right of residence which can be enforced against the purchaser from her husband. On the other hand it is contended that she has such a right and that in any case her position after the death of her husband must be treated on the same footing as that of a widow having a right of maintenance against the family property. It is also urged on behalf of the respondent that she should be allowed to raise the point as to the benami nature of the sale-deed in favour of the plaintiff and that there should be a remand on that, point.

(3.) It may be mentioned that the trial Court decided on the evidence against her on the question of fact as to whether the sale-deed was hollow, and in the appellate Court this question of fact appears to have been abandoned. The statement of the appellate Court on this point is quite distinct; and I do not think that the respondent could now be allowed to raise the point relating to a question of fact which was expressly abandoned in the lower appellate Court.