GANGA PERSHAD Vs. MUSAMMAT THAKRO

JUDGEMENT

(1.) THIS is an appeal by Musammat Thakro and other ladies against Ganga Parshad, the Respondent. The appeal is from a decree of the High Court of the North-Western Provinces at Allahabad. The suit was brought by Ganga Parshad against Musammat Thakro, his mother, and the other ladies, who were the daughters of Musammat Thakro, in whose favour the mother had executed a deed of conveyance, the Plaintiff alleged that his father, Ganesh Singh, "had a large property; that he, on different occasions, by mortgage and private and public purchase, having obtained mouzah Shapur Thatvi in his own name, as well as in the name of Musammat Thakro, Plaintiff's mother, himself remained in possession thereof. Subsequently, in 1862 and 1863, the name of the said Musammat was recorded in respect of the entire property in the said mouzah, though the said Ganesh Singh continued in possession of it." He then alleged that on the 12th of October, 1872, Ganesh Singh executed a will, and " on the 17th of October, 1872, died, and that Musammat Thakro, Plaintiff's mother, continued to live with him (Plaintiff), and the village in dispute, like other paternal estates, remained under the management of the Plaintiff." Then he proceeded as follows : "On the 6th of May, 1878, the said Musammat Thakro executed a false deed of gift "- by which he meant a deed of gift which she had not the power to execute -" of the said mouzah in favour of her two daughters, Musammat Badha andBhawani, describing the said mouzah to be her acquired property and stridhan, and thus effected the Plaintiff's dispossession ever since the Musammat began to live separate, which is the time when the cause of action arose. The village in dispute being the acquired property of the Plaintiff's father, who had simply on account of affection caused the name of Musammat Thakro to be entered, the latter was not, under the Hindu law, competent to transfer the property to her daughters. The Plaintiff is, in every way, entitled to get the property. The Plaintiff therefore seeks for the following reliefs : (1) That the Plaintiff's right may be declared in respect of the disputed property, and the deed of gift executed on the 6th of May, 1878, by Musammat Thakro, Defendant, in favour of Musammats Bhawani and Badha, be declared invalid, void, and inoperative as far as the Plaintiffs right is concerned. (2) That both the last-mentioned Defendants may be dispossessed of the disputed mouzah, and their right as donees declared null and void."

(2.) A written statement was put in on behalf of the ladies, and the case being tried by the Subordinate Judge, he raised several issues, the principal one of which was the fourth, "Whether Shapur, the village in dispute, is wholly or partly the personal property of Ganesh Singh; and he alone remained in possession as long as he lived, and since his death, the Plaintiff remained in possession thereof till the date of the accrual of the cause of action, and is therefore entitled to possession thereof; or the village in question is wholly or partly the personal property of Mussammat Thakro, the widow of Ganesh Singh, deceased, who has been in possession thereof for more than twelve years, and the Defendants are in possession from the date of gift, and the Plaintiff's claim is therefore barred by lapse of time and he has no right in the property in dispute." Upon that the Subordinate Judge says : "Just as the Defendants have not proved their assertion, so the Plaintiff also has not proved that Ganesh Singh fictitiously transferred that amount of land of the village of Shahpur Thator which was in his name to Musammat Thakro." The question really was, whether, when the mutation of names was made from the name of Ganesh into the name of his wife, it was his intention to transfer the property into the name of his wife benamee for him. The Subordinate Judge upon this point says : In short, a careful consideration of all the oral and documentary evidence and presumptions and probabilities clearly leads the Court to infer that the whole of the village in dispute is the property of Musammat Thakro, and is not the estate left by Ganesh Singh, and that up to the date of the deed of gift in question it remained in her possession." The Subordinate Judge therefore found in substance that the mutation of names in 1862 was not for the purpose of putting the property into the name of the wife benamee for the husband, but for her own benefit.

(3.) A considerable part of this property, as shewn by the Subordinate Judge in his judgment, was purchased in the name of Ganesh, the husband, and certain other parts in the name of the wife. The wife gave evidence that that portion of the property which was purchased in her name was purchased for her benefit and with her own money. It is unnecessary to decide whether the part of the property which was purchased in the name of the wife was purchased with her money or with that of her husband, because even if the property which was purchased in the name of the wife was the property of the husband, as well as that which was purchased in his own name, the question still remains whether when the husband allowed the mutation of names from his name into the name of his wife, he intended that mutation to operate for his own benefit or for hers.