JOTI LAL SAH Vs. MTRAMESWARI KUER

JUDGEMENT

(1.) In my opinion this appeal must be allowed. It arises out of an action by the respondent-plaintiff claiming a declaration that a sale deed of 15 January 1927 purporting to be for a consideration of Rs. 2500 which was executed by Mt. Gharbharan Kuer, the widow of Bechu Sah, was in fact without consideration and legal necessity and that the transaction was not binding on the reversioners of the plaintiff. The relief claimed included a declaration that a revenue sale, to which I shall presently refer in greater detail, was also collusive and fraudulent and not binding on the plaintiff.

(2.) The facts are as follows: The lady who executed the sale deed was defendant 3 in the action. She was the junior wife of one Bechu Sah whose senior wife was one Jasoda Kuer of whom the plaintiff was the daughter. Defendant 4 in the suit is the daughter of Mt. Gharbharan. The principal defendants are defendant 1 who is the appellant, and defendant 2. Defendants 1 and 2 are uncle and nephew and it was a part of the plaintiff's case in this Court that the business of these two persons was joint--an allegation which became necessary on the pleadings as establishing the second part of the relief claimed, already referred, I refer to the claim for a declaration that the revenue sale was fraudulent and collusive. It is to be noticed in this connexion that this particular claim was made by amendment which was allowed to the plaintiff by an order dated 1 May 1934. The amendment was made after the filing of the written statement and indeed on the day the hearing of the suit commenced.

(3.) I propose to state one or two facts from which the points in issue will appear. The sale deed was executed on 15 January 1927 and the purchaser was defendants. At the time of the sale deed, as I think will appear, the estate was in arrear for revenue, and on 6 June 1927, a revenue sale was held in which defendant 1 who is the appellant before this Court became the purchaser. There was some dispute in the Court below and indeed in this Court as to whether the arrears for which this sale was held were arrears of revenue due for the January kist or the March kist of the year 1927; but for reasons which I shall state, it seems to me that we are bound to come to the conclusion in the circumstances of the case, that revenue was in arrear for earlier kists and during the possession of the vendor under the sale deed of 15 January 1927, that is to say, Mt. Gharbharan Kuer. Now it was the plaintiff's case that the transaction of, January 1927 was without consideration and that it was without legal necessity. The necessity alleged by the defendants, and attempted to be proved by one of their witnesses Ramsarup Sah (witness 6) was money required for the repairs of the house and for the Gaya sradh.