MURLIMANOHAR PRASAD SINGH Vs. RAMLAKHAN SINGH

JUDGEMENT

(1.) This is an appeal by the defendants against a decree of the Subordinate Judge, Third Court, Patna, in a suit for declaration of title and recovery of possession. The following genealogical table will explain the relationship of the parties:

(2.) According to the plaintiffs, the property in suit is the ancestral property of Binda Prasad together with accretions acquired from the income thereof. It is claimed by plaintiff 1, Ramlakhan Singh, as son of Binda Prasad's sister, Tapo Kuer, and by plaintiff 2, as transferee of a share in the property under a sale deed, executed on 14-7-1041, by plaintiff 1. Before his death, Binda Prasad executed two deeds in respect of all his properties. One was a deed of gift dated 12-6-1889, purporting to transfer a portion of the property to his step-mother Biso Kuer. The other was a deed of partition dated 12-10-1889, purporting to divide the remaining property between Binda himself, his son Raja Ram, his wife Phuleswar Kuer and his step-mother Biso Kuer. According to the plaintiffs, these deeds were merely sham transactions intended to protect the estate from creditors, and the property continued to be vested in Binda Prasad. Binda's son, Raja Ram, predeceased him. According to the plaintiffs, Phuleswar Kuer succeeded Binda Prasad and was herself succeeded by plaintiff 1 on her death in 1940 but in 1941, plaintiff 1 was dispossessed by defendants 1 and 2, claiming the property under certain deeds executed in their favour by Mt. Phuleswar Kuer and Hari Prasad Singh defendant 4 on 25-7-1940. The plaintiffs challenge the execution of these deeds by Phuleswar.

(3.) The suit was contested by defendants 1, 2 and 4. Defendant 2 has since died and his mother has been substituted in his place. The contesting, defendants deny the alleged relationship between plaintiff 1 and Binda Prasad. According to them, plaintiff 1 is merely the step-son of Tapo Kuer and has no connection whatever with the family of Binda Prasad. They assert that the two deeds of 1889 represent real transactions and that under these deeds, Biso and Phuleswar took an absolute interest in the property assigned to them after the respective deaths of Raja Ram and Biso, their property passed to Phuleswar, who on 26-7-1940, executed a deed of gift in favour of defendants 1 and 2 in respect of properties over which she had acquired an absolute title; as regards the portion of the property in which she only got limited interest, she made an oral surrender of it in favour of the next heir, defendant 4, who gave these properties to defendants 1 and 2 by the second deed of gift, in the execution of which Phuleswar also joined as an executant. According to the defendants, these deeds are valid and effective and passed the title to defendants 1 and 2. The Subordinate Judge accepted the plaintiffs story that plaintiff 1 is the son of Tapo Kuer. He found that the deeds of 1889 were sham transactions and were not given effect to. In consequence, he held that plaintiff 1, as Binda Prasad's heir, is entitled to succeed to the property after the death of Phuleswar. He found the deeds of 1940 to have been executed by Phuleswar but was inclined to think that she had no independent advice and did not understand the nature of the transactions; in view of his other findings, it was not necessary for him to record a definite finding on this point. In the result Subordinate Judge decreed the suit and directed that mesne profits be ascertained in a separate proceeding.