RAMESHWAR NATH Vs. MTAFTAB BEGAM

JUDGEMENT

(1.) This is a defendant's first appeal against a decree passed by the learned Subordinate Judge of Pilibhit. The plaintiff's suit was for a declaration that she was the owner in possession of certain property detailed in Schedule A of the plaint and that the property detailed in Schedule B of the plaint was property belonging to her which she had made waqf and that both the properties were not liable to be attached and sold in execution of a certain decree held by defendant 1 against defendant 2. Plaintiff 1, Mt. Aftab Begam, was the second wife of defendant 2. According to her the amount of dower due to her upon her marriage to defendant 2 had been fixed at Rs. 30,000 and such dower was declared to be prompt It was her case that nothing had been paid in discharge of this liability until 8 March 1919 when her husband, defendant 2, in part satisfaction of this prompt dower debt due to his wife, transferred the property detailed in Schedule A to her. The property transferred was stated to be worth Rs. 3,000 and as a result of this transaction the dower debt was reduced to that extent. As regards the property set out in Schedule B it was the plaintiff's case that she had purchased this property on 25 May 1920 in an auction sale in execution proceedings which had been brought by a decree-holder Chhotey Lal against defendant 2. This property set out in Schedule B had been made wakf by the plaintiff and consequently it was claimed in this suit that neither the properties in Schedule A nor Schedule B belonged to defendant 2 and therefore they were not liable to attachment and sale under any decree held by defendant 1, against defendant 2.

(2.) A number of defences were raised and it will be necessary shortly to deal with some of them. In the first place it was said that the real owner of both these properties was defendant 2 and that in the year 1919 no dower debt was due to the plaintiff. It was the defendants case that the dower arranged to be paid to the plaintiff was a sum of Rs. 2000 and that such was not due until the death of defendant 2 or upon the latter divorcing his wife. In the second place it was alleged that the transfer by defendant 2 to the plaintiff of property mentioned in Schedule A was a purely fictitious transaction which was entered into with a view to defrauding his numerous creditors. Lastly it was contended that the suit was overvalued and that the proper valuation was Rs. 1,300 and consequently the plaint should have been presented in the Court of the Munsif.

(3.) The learned Subordinate Judge did not decide the question of the valuation of the suit and considered the case upon its merits He found as a fact that the dower due to the plaintiff was Rs. 30,000 and that such dower was prompt. He further found that at the date of this transfer to the plaintiff, viz., 8 March 1919, the whole sum was due by way of dower and that the transfer in dispute was executed by defendant 2 in favour of the plaintiff in part satisfaction of his legal liability to her. The learned Subordinate Judge was of opinion that at this time defendant 2 was heavily indebted to other creditors and that this transfer may have affected the interests of such creditors, but nevertheless he held, that the transaction was a genuine and bona fide one and therefore was valid and effectual in spite of the fact that defendant 2 had numerous other creditors. With regard to the property specified in Schedule B the learned Subordinate Judge held that this property belonged to the plaintiff and had been purchased by her from Chhotey Lal on 7th January 1931. He also held that the property had become wakf and did not in any way form part of the estate of defendant 2 which could be attached in execution of any decree obtained against him.