AMAR NATH Vs. DWARKA DAS JAI KISHUN DAS

JUDGEMENT

(1.) Brij Mohan Das and the appellant, Amar Nath, obtained mortgage decrees for the sale of the same property against Ram Das and Mt. Jiwan Kunwar, the son and daughter of Ganesh Das, in the year 1932. It appears that Brij Mohan Das was the prior mortgagee. He put the property to sale and recovered a sum of Rs. 16,100 out of the decretal amount of Rs. 24,451. He applied for a money decree for the balance on 1 August 1934. It is conceded that Amar Nath also obtained a money decree, although the date of it is not known. In execution of this decree he attached a box of ornaments deposited by Ganesh Das in the Allahabad Bank in the year 1920. After the death of Ganesh Das, Mt. Jiwan Kunwar attempted to recover the ornaments from the Allahabad Bank upon the ground that they were really her property and had been deposited by Ganesh Das on her behalf. The bank refused to deliver the property until Mt. Jiwan Kunwar could establish her claim to it in a Court of law and the result was that the ornaments were still in deposit with the bank at all relevant times. It is now conceded by the parties that the property did belong to Mt. Jiwan Kunwar. The suit which has given rise to this appeal arose out of the fact that Dwarka Das Jai Kishen Das, the plaintiff- respondent, objected to the attachment by Amar Nath upon the ground that the ornaments had been sold to him by Mt. Jiwan Kunwar before the attachment had been made. His objection was disallowed by the Court executing the decree and he instituted the suit in order to obtain a declaration that the property was his and was not liable to be attached in execution of the decree against Mt. Jiwan Kunwar. The learned Judge gave him a declaration to that effect and Amar Nath has appealed.

(2.) The plaintiff-respondent produced the deed of sale transferring the ornaments to him executed by Mt. Jiwan Kunwar on 29 September 1934. The consideration, a sum of Ks. 8000, was paid by means of a cheque drawn by Dwarka Das Jai Kishen Das on the Imperial Bank in favour of Mt. Jiwan Kunwar. The officials of the bank have proved that the cheque was cashed by Mt. Jiwan Kunwar and the money was paid to her personally. There was a suggestion by the appellant, Amar Nath, that the lady went to the bank with the agent or attorney of Dwarka Das Jai Kishen Das and that he might have recovered the money and returned it to the plaintiff, but there is no evidence in support of this allegation and nothing to rebut the statements of the officials of the bank. It is true that the bank has lost and has been unable to produce the original cheque, but there is no reason for supposing that this fact indicates any conspiracy between the plaintiff and the officials of the bank or can give rise to any justifiable suspicion that the evidence produced by the plaintiff upon this point is unreliable. The learned Judge has held that the consideration was paid and we have no reason for disagreeing with his conclusion upon this question of fact.

(3.) A suggestion was made in argument before us that the accounts of the plaintiff-respondent showed that two sums of Rs. 6000 and Rs. 2000, were deposited by him in cash in his personal account with the firm in which he is a partner and that we should assume that these sums came from Mt. Jiwan Kunwar and consequently that the money paid by way of consideration was returned by her. The appellant has produced no evidence in support of his allegation. He did not put any question upon this point to Dwarka Das Jai Kishen Das when the latter was cross-examined and there is nothing to suggest that these sums were paid by Mt. Jiwan Kunwar. The learned Judge has dealt with this point in his judgment. He has pointed out that the question was not raised till the case was being argued before him. It is clear that Dwarka Das Jai Kishen Das had no notice of this objection and no reason for producing any evidence to show from what source he obtained this money. When the case was being argued in the lower Court, counsel on his behalf said that his client occasionally received sums of money in cash which he deposited in the ordinary way. It would be most unfair for us to make any assumptions against Dwarka Das Jai Kishen Das on the basis of allegations which he had no opportunity at any time of meeting. We agree with the learned Judge of the Court below that it is impossible to hold that the consideration, if paid, was returned in the manner alleged by the appellant.