NANDI Vs. SARUP LAL

JUDGEMENT

(1.) THIS appeal arises out of a suit for possession of a house. It appears that the house originally belonged to Tara Chand, who died leaving two widows and no male issue. The name of one of the widows was Musammat Bakhti. The name of the other widow was Musammat Nandi, the plaintiff. These two ladies made a partition of Tara Chand s property as between themselves. The house in question fell to the lot of Bakhti. Bakhti executed a sale-deed of the house to the defendant on the 29th of April, 1808. Bakhti has now died and the plaintiff has brought this suit to recover possession of the house. The case has come right up to this Court on a previous occasion, but finally the court of first instance found that there was no legal necessity for the sale made by Musammat Bakhti. It appears that after the sale a considerable amount of money was spent in improvements on the house. In the court of first instance there was an issue as to who had spent the money, and the court found that it had been expended out of the money which belonged to Musammat Bakhti. The court decreed the plaintiff s suit. On appeal the lower appellate court held, in agreement with the court of first instance, that there was no legal necessity for the sale, but came to the conclusion that the defendant had improved the house out of his own money, and for some reason or other remanded the case to the court of first instance. The present appeal has been preferred on behalf of the plaintiff, who contends that even on the finding that the house had been improved out of moneys belonging to the defendant, the plaintiff s suit should have been decreed and there was no necessity for a remand. We must of course accept the finding of the lower appellate court as to where the money came from which went to improve the house. At the same time we feel some doubt as to whether the court of first instance did not arrive at the right conclusion even on this issue of fact. It is somewhat improbable that the defendant spent out of his own funds this large sum of money upon the house, his title to which he must have known was most infirm and could only last for the period of Musammat Bakhti s life. Furthermore Musammat Bakhti undoubtedly had some means which might have been expended upon the house. Eventually what has become of this money we do not know. Accepting, however, as we are bound to do, the finding of the lower appellate court that the defendant expended the money out of his own pocket, in our opinion it affords no answer to the present suit, If the defendant chose to spend money on the house, he did so at his peril. It is quite clear that the partition between the two ladies operated merely during their life, and upon the death of Musammat Bakhti the property became the property of the surviving widow for the period of her life. We allow the appeal, set aside the order of the court below, and restore the decree of the court of first instance with costs in all courts.