KANTA MOHINI DASI MINOR BY HER NEXT FRIEND, KAMINI DASI Vs. NANICHORA SOBA AND ON HIS DEATH HIS HEIRESS AND LEGAL REPRESENTATIVE HIS WIDOW BRAJA SUNDARI DASI

JUDGEMENT

(1.) In my judgment this appeal must be dismissed.

(2.) The facts of the case were these: --They are concisely set out in the judgment of the lower Appellate Court at page 10 of the paper-book- The action was brought by the plaintiff, a minor who was the widow of one Bhusan and who was represented in the action by her mother. The defendant was the maternal uncle of the deceased Bhusan. The action was brought for a declaration, first of all, that a certain deed of gift executed by the plaintiff s husband in favour of his maternal uncle was fraudulent and invalid and the same should be set aside; and secondly, for a a declaration or for that which was equivalent to a declaration that the property was liable for the plaintiff s maintenance if it were found that she was not entitled to have the deed of gift set aside, and to obtain possession of the property.

(3.) Now, Bhusan, apparently, was paralyzed and he had this young wife, the plaintiff who was of tender years. I think I am right in saying that she was living in the house of her mother and never went to live with her husband. This property which belonged to Bhusan was a very small piece of property, which was barely sufficient to provide for the maintenance of one individual. When Bhusan became paralyzed he proposed that he should go and live in the house of his wife s mother, and his wife and her mother should look after him and that they should take possession of the property, and out of that property maintain Bhusan, the paralysed man. The learned Subordinate Judge in giving his judgment at page 10 says: "The defendant s witnesses have proved that plaintiff s mother was called in and was asked to take charge of her invalid son-in-law and his properties, but very likely considering that the property was very small (only about 4 bighas of land) and the income was not sufficient even to support one man, she refused to take charge, and if under such circumstances the defendant took charge of him (Bhusan) and the latter made a gift of his little property, either out of gratitude or love, to the former, it cannot be called a mala fide transaction." The learned Judge has found that it was a bona fide transaction and that there was no ground for setting aside the deed of gift. The learned Vakil for the appellant agrees that inasmuch as that is a finding of fact it cannot be disputed in this Court. Therefore, the only question is whether the learned Judge in the Court below, when he said that this property in the hands of the defendant was not subject to the charge for the maintenance of the deceased man s widow, was right or wrong.