ISTAK KAMU MUSALMAN Vs. RANCHOD ZIPRU BHATE

JUDGEMENT

(1.) This appeal arises out of a suit filed by the plaintiff for a declaration that certain gifts were void, for recovering one-third share in the properties conveyed by them and for other ancillary reliefs. The main facts in this case are undisputed. Chunilal, a wealthy but profligate Bania of Dharangaon, died without issue on 12 April 1938. In 1908 when he was forty years of age, he brought defendant 1, a Mahomedan prostitute girl of fifteen, from Aurangabad, and kept her as her mistress. He kept her in a separate bungalow till the death of his wife Kasabai in 1931, and thereafter they lived together in the same house. On 5 January 1914, six years after defendant 1 became his mistress, Chunilal gave her a bungalow worth Rs. 1000 and two lands worth Rs. 3000 by two gift deeds, Exs. 181 and 183, and another house worth Rs. 500 in 1926 by the gift deed, Ex. 188. He then passed four more deeds of gift in her favour in 1929 and 1931, and two in favour of her brother, defendant 2, in 1931 and 1932. The properties thus gifted were given into their possession and are in their enjoyment. The plaintiff and defendants 3 and 4 are the grandsons of Chunilal's separated uncles and claim to be his nearest heirs. The plaintiff brought this suit to recover by partition his one-third share in Chunilal's property, alleging that all the gift-deeds passed by him in favour of defendants 1 and 2 were void, as their consideration was past and future cohabitation with defendant 1. The lower Court held that the plaintiff and defendants 3 and 4 were the nearest heirs of Chunilal, and the gifts were void, but the claim to recover the properties given under Exs. 182, 183 and 188 was time-barred. A preliminary decree for partition of the properties conveyed by the other six gift deeds was passed in favour of the plaintiff. This is an appeal against that decree by defendant 1 alone. Defendant 2 has not appealed, and thus we are concerned in this appeal only with four gift deeds, Exs. 185, 189, 184 and 186.

(2.) There is no substance in the contention of defendants 1 and 2 that the plaintiff and defendants 3 and 4 are not the nearest heirs of Chunilal. It was suggested in the plaintiff's cross-examination that Chunilal had five sisters and it is urged that the plaintiff has not proved that none of them left any male issue at the date of Chunilal's death. Chunilal was taken in adoption by Laxmandas and the said sisters are the daughters of Laxmandas including Chunilal's own mother Tapabai. Of the five sisters it is admitted that Ramabai and Chaturbai had no issue. The plaintiff admitted that Tapabai, Chunilal's mother, Mathurabai and Bhimabai had issue and the plaintiff says that he did not make any inquiries about these. It is contended, therefore, that the burden of proving that there were no nearer relations to Chunilal at the date of his death lay on the plaintiff, and as the plaintiff on his own showing did not make any enquiries about the sons of Chunilal's sisters, who would be his legal heirs in preference to himself and defendants 3 and 4, he is not entitled to any relief. There is some force in this contention. But defendant 1 who was examined on commission herself admits that on Chunilal's death she had sent a motor car to invite the plaintiff, his son and defendant 3 and that they were the only nearest relatives of the deceased. She frankly admits that she does not know that deceased Chunilal had any other nearer relative. She has nowhere suggested that any of Chunilal's sisters had issue living at the date of his death. No son of Chunilal's sisters is mentioned or coming forward. Defendant 4 says that deceased Chunilal had no heirs of his sisters and that himself, defendant 3 and the plaintiff are his heirs and the nearest bhaubands. He, however, says that when Chunilal died none of his sisters nor any of their sons was alive. His evidence has been believed by the lower Court. The plaintiff's witnesses do not help the plaintiff since they speak of only two sisters of Chunilal and therefore, do not know anything about the other three sisters and their sons. But on the evidence of defendant 4 and the admission of defendant 1 we hold that the plaintiff and defendants 3 and 4 are the nearest heirs of deceased Chunilal. The plaintiff having died during the pendency of the suit his sons were brought on record and they continued the suit.

(3.) Two questions arise with regard to the claim for the properties conveyed by Chunilal to defendant 1, whether the four deeds of gift are void, and if they are, whether Chunilal's heirs are estopped from seeking to recover them as the deeds of gift were acted upon. The lower Court has found in favour of the plaintiff on both these points.