JOTI PRASAD Vs. BABU BASDEO SAHAI BHARGAVA, ADVOCATE

JUDGEMENT

(1.) The sole question for determination in this appeal is whether a surrender by a Hindu lady in favour of her sons of the entire estate in which she held the same limited interest as a Hindu widow, so as to accelerate their succession, amounts to a transfer of the nature of a gift within the meaning of Section 7(3), U.P. Encumbered Estates Act.

(2.) The lady in this case, Mt. Ramdei, had inherited the estate as a daughter. She had applied under Section 4, U.P. Encumbered Estates Act, and decrees in those proceedings had already been passed and sent to the Collector for execution when she executed a document, described as a dastbardari, in favour of her sons. This document was registered and thereafter the sons applied to be substituted for their mother in these proceedings. The Special Judge rejected the application, holding that the object of the transaction was to prejudice the creditors by protecting the property from sale. Under the provisions of the Debt Redemption Act (13 [XIII] of 1940) estates paying less than Rs. 250 as revenue cannot be sold and the suggestion is that the estate would be divided between the sons by this transaction, and that as the revenue payable in their several portions would be less than Rs. 250 the estate would come under the head of protected property. The relevant provisions of the Debt Redemption Act are extended to proceedings under the Encumbered Estates Act by Section 19 of the former Act.

(3.) This appeal is brought by the sons against the Special Judge's order. The Special Judge did not found his decision on any particular provision of law. He rejected the application because the creditors were prejudiced and he considered the practice "a very sharp one." He also said that the surrender was not a genuine surrender. Before us nothing has been said against its genuineness and, in considering the appeal, we have assumed that it was genuine. There is no reason to doubt that it was intended to be acted upon.