HARIHAR PRASAD Vs. UDAI NATH SAH

JUDGEMENT

(1.) This appeal in an insolvency matter raises a pure question of law. The name of the insolvent is Champa Prasad and he was so adjudicated on the 21 of June, 1918. Champa Prasad's mother was one Ganeshi Kunwar, the daughter of one Durga Prasad. This gentleman died possessed of considerable property, which passed with a widow's estate to his widow, Musammat Mula Kunwar. This lady died in the month of December, 1919, and it is admitted that, thereupon, the property passed to Ganeshi Kunwar, also with the limited estate, of a Hindu widow. That lady, however, proceeded to execute at once a deed of gift conveying the whole estate to her grandson, Harihar Prasad, the son of the insolvent Champa Prasad, who joined with her in the execution of the document.

(2.) On the death of Musammat Ganeshi Kunwar, the creditors of the insolvent, claimed to take this property as that of the insolvent Champa Prasad. On objection taken by Harihar Prasad, the insolvency court has gone into the question, but Las upheld the contention of the creditors. The finding of the court below is that this property vested in the insolvent Champa Prasad on the death of his mother, Ganeshi Kunwar. In undoubtedly did so vest, unless it had previously passed to Harihar Prasad under the deed of gift of the 11 of December, 1919.

(3.) There is one complication which ought to be mentioned. One of the creditors held a mortgage, affecting a portion of the property concerned, which had been executed by Mula Kunwar, Ganeshi Kunwar and Champa Prasad, jointly, on the 4 of February, 1915. He has obtained a decree on his mortgage in a contested suit to which Harihar Prasad was a party. In that suit the court tried, as between the mortgagee and all the defendants, the issue whether the deed of gift of the 11 of December, 1919, conveyed anything to Harihar Prasad beyond the life- time of Ganeshi Kunwar. In substance the court round that this was an alienation by a Hindu widow without legal necessity; that it conveyed nothing to the donee beyond a right of possession and enjoyment in the life-time of the widow, and that, on the death of Ganeshi Kunwar, the property had vested in the insolvent Champa Prasad. It is Kuggested that this finding operates as res judicata, at any rate, as between the secured creditor and the appellant Harihar Prasad. The only answer to this is a contention on the part of Harihar Prasad that he was not property represented in the suit on the mortgage. In the view which we take of the law applicable to the case as a whole, it is not necessary for us to go into this question. We thought it advisable to refer to this previous litigation, partly as a matter of record, and also became it is quite clear that in the mortgage suit the question of the validity of the deed of gift in favour of Harihar Prasad was fought out solely on the ground of the presumption or otherwise of legal necessity for the transfer. Now, if this be the right way in which to regard this transfer, then the decision of the trial court is unquestionably right. To begin with, a transfer by way of gift cannot, broadly speaking, be supported by any allegation of legal necessity. If the fact that Champa Prasad, being the nearest reversioner living at the time, expressed his consent to the alienation by joining in the same, be relied upon merely as raising a presumption in favour of legal necessity, then that presumption is, in the case now before us, abundantly rebutted. Champa Prasad, having been adjudicated an insolvent, could derive no benefit from his succession to the property, which would revert to the receiver in bankruptcy on the very day he succeeded to it. It was obviously to his advantage to agree to a transfer of that property in favour of his own son and to the detriment of his creditors. The fact of his doing so raises no presumption whatever in favour of the necessity for the alienation.