DAYAMOYEE RAY CHOUDHURY Vs. LALIT MOHAL PAL RAY

JUDGEMENT

(1.) The suit giving rise to this appeal was brought by the plaintiff to recover certain properties as heir of her father one Bharat Chandra Basu. The properties had been placed in two schedules ka and kha of the plaint. Bharat obtained the properties described in schedule ka as heir of his son who had pre-deceased him, the son having inherited the properties from his maternal grand. father. The properties in schedule kha were the ancestral properties of Bharat. Bharat died leaving two daughters, the plaintiff who was married at the time and Mon Mohini a maiden daughter. Mon Mohini, therefore, succeeded to the property left by Bharat obtaining a Hindu woman's estate. Bharat had also three nephews, his brother's sons. One of them Krishna was appointed guardian of Mon Mohini during her minority. It appears that Bharat died leaving some debts and a decree was obtained by the creditor one Ram Kumar Nag in a suit in which he made both the daughters of Bharat defendants, The decree was for Rs. 88 odd and was dated 13 July, 1883. In order to pay off this debt Krishna as guardian of Mon Mohini borrowed a sum of Rs. 100 from one Kali Kumar Pal by a simple bond, dated 31st May, 1884. He executed this bond as the certificated guardian of Mon Mohini, and under that bond there was only the personal liability of the executant, no property left by Bharat being charged for the debt. No money was paid for that bond but a fresh bowl was executed in favour of the creditor on the 17 October, 1887, by Krishna purporting to act as guardian on behalf of Mon Mohini. This bond was for Rs. 160. The creditor, Kali Kumar Pal, brought a suit on the renewed bond in 1890 making both the minor Mon Mohini and her guardian Krishna defendants in the suit. The suit was decreed on the 14 February, 1890, and the ordering portion of the decree runs thus. It is ordered that an ex parte decree be passed as against the defendant No. 1 for the claim in suit with costs together with interest...and that the defendant No. 1 do pay to the plaintiff the sum of Rs. 226-8. The defendant No. 1 was the lady Mon Mohini. This decree was put in execution and the properties mentioned in Schedule ka of the plaint were sold and purchased by the decree-holder. The date of the sale-certificate is 27th November, 1891, and the properties in Schedule ka are now in the possession of his heir, the defendant No. 1. The properties described in Schedule kha were said to have been transferred by Bharat in his lifetime by oral gift in favour of his brother's sons one of whom was Krishna aforesaid. Those donees had executed mortgages in favour of certain persons with regard to these properties and the defendants Nos. 9 and 10 purchased those properties on being sold in execution of the mortgage decree by the creditors and they are now in possession of those properties.

(2.) Mon Mohini died sometime in 1908 and the plaintiff brings this suit for the recovery of the properties on the allegation that she is entitled to those properties as the next heir of Bharat. The Court below has dismissed the suit entirely. The plaintiff claimed the properties in various grounds. She impeached the auction sales as fraudulent and collusive and also alleged that the defendant No. 1's father was actually acting as the guardian of Mon Mohini, and also denied that Bharat had any debts. The real question, however, and that is the point which has been urged before us, is whether the sale in 1891 of the properties in Schedule ka conveyed the entire interest in the properties or only the limited interest of the minor Mon Mohini. With regard to the properties in schedule kha it was urged that there was no reliable evidence of the gift and the lower Court was wrong in holding that the evidence of the gift had not been contradicted by the plaintiff.

(3.) The claim with regard to the properties in Schedule kha may be disposed of at once. "We find from the evidence that the properties were of very small value, the income only being Rs. 3 realised as rent and about 12 maunds of paddy per year. It is in evidence that Bharat had affection for his brother's sons and also that those brother's sons had nursed him during his old age. It also appears from the evidence on the plaintiff's side that Krishna was very affectionate towards his cousins the plaintiff and Mon Mohini, and had acted for the purpose of preservation of their interest. It does not appear to us that there is any good ground for disbelieving the evidence that there was an oral gift by Bharat in favour of his nephews. If that is so the plaintiff cannot lay any claim to those properties. The appeal, therefore, with regard to the properties in Schedule kha is dismissed.