LAWS(PVC)-1944-11-17

BHAGWAN DAS Vs. MTBITTON

Decided On November 24, 1944
BHAGWAN DAS Appellant
V/S
MTBITTON Respondents

JUDGEMENT

(1.) This is a defendant's appeal and arises out of a suit for possession and mesne profits with a declaration that the sale of 15 January 1912 granted by Mt. Radhi of the house in dispute, was invalid. The plaintiff is the daughter of Mt. Radhi. The facts are briefly these. One Sucha Sahu carried on a flourishing grain business. He died on 28 March 1904 leaving a widow, Mt. Radhi, a son, Bachcha, and a daughter, Mt. Bittan. The son died soon after the father, on 7 July 1904. On 26 September 1911 Mt. Radhi purchased a house from one Mb. Dilasi for a sum of Rs. 398-12-0. On 15 January 1912, that is within less than four months of the purchase, Mt. Radhi sold it to a man named Bhagwan Das for a sum of Rs. 499. This Bhagwan Das, it must be borne in mind, was a servant or, to use the words of the learned Counsel for the appellant, a trusted servant of the family. The lady died on 23 May 1935 and the present suit by the daughter was instituted on 19 May 1938.

(2.) The sale was challenged on the ground that there was no consideration for it and, assuming that there was one, it was not justified by legal necessity. There was a distinct allegation in the plaint that Bhagwan Das was an all powerful servant and the lady was a mere puppet in his hands. We might leave the plaintiff's case at this stage. The defence was that there was full consideration for the transaction which was justified by legal necessity. It was also pleaded that the lady was a free agent of her conduct and that there was no undue influence exercised on her. The learned Munsif held that the bulk of the consideration had not been established. In that view no question of legal necessity arose in the case. He, however, dismissed the suit on the finding that, although the purchase of 26th September 1911 by Mt. Radhi had been made by her out the savings of the estate of her husband, nevertheless she had intended to keep those savings as a separate estate and she had, therefore, become the absolute or the stridhan owner of the house. On this finding he came to the conclusion that the question of consideration or legal necessity did not arise.

(3.) On appeal by the plaintiff, the learned Additional Civil Judge came to an opposite conclusion. While he agreed with the learned Munsif that the bulk of the consideration had not been established and he further agreed with him that there was no legal necessity for it, he disagreed with him on the main question of the intention of the lady to keep the property separate. He came to the following findings: (a) There is no evidence on the record to show that Mt. Radhi ever intended to treat this house in suit as her own property or stridhan. (b) Considering the evidence and circumstances of the case, I hold that the house in dispute was an accretion to the estate of Sucha Teli and Bachcha minor and it did not constitute the stridhan property of Mt. Radhi. It might be mentioned here that the. defendant claimed compensation under Section 51, T.P. Act. The learned Munsif accepted this plea in defence and held that even if the suit had been decreed the plaintiff would have been bound to pay a sum of Rs. 3000 before she could obtain possession. The learned Additional Civil Judge was not at one with him on this point. He distinctly held that he did not "think that he (the transferee) acted bona fide in obtaining the sale deed, dated 15 January, 1912 from Mt. Radhi." On these findings, he decreed the suit unconditionally.