ANRUDH KUMAR Vs. LACHHMI CHAND

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for recovery of Rs. 33,000 and odd principal and Rs. 5,000 and odd interest. It appears that Lachhmi Chand, plaintiff, had two brothers Mohar and Baldeo and they were all separate. The defendant Anrudh Kumar is the son of Mohar and defendant 2, Mt. Kamal Devi, is Anrudh Kumar's wife. On 24 August 1920, Baldeo died as a separated owner. Mohar had predeceased him. Under the Hindu law if Baldeo had died intestate Lachhmi Chand would have succeeded to the entire estate. Anrudh Kumar, who was not the heir-at-law, apart from alleging jointness, set up a will in his favour. In the lifetime of Baldeo some land had been acquired by the Government under the Land Acquisition Act and he died while the proceedings were pending A sum of Rs. 33,000 and odd was awarded as compensation for the property so acquired. On 14 March this amount was paid to Anrudh Kumar who claimed to be the heir of the deceased Baldeo. A suit was instituted by Anrudh Kumar against Lachhmi Chand which was decided on 18 June 1921 by the first Court. It found that the family was separate and that the will which had been set up by Anrudh Kumar was a forgery. This decision was ultimately affirmed by the High Court on 27th November 1924.

(2.) Even in the lifetime of Baldeo it is a fact admitted by Anrudh Kumar that he was indebted to him to the extent of about Rs. 40,000. Before the civil suit was decided by the Subordinate Judge, the appellant Anrudh Kumar executed a deed of gift dated 5 May 1920 in favour of his wife of considerable landed property. After the decision by the first Court, and during the pendency of the appeal in the High Court, he executed a second deed of gift dated 10 November 1921 in favour of his wife, under which he transferred to her other immovable properties and an insurance policy. In execution of his decree for costs Lachhmi Chand sought to attach certain movable properties including a phaeton and a motor car alleged to belong to Anrudh Kumar. In the course of these proceedings a document dated 14 June 1903, purporting to be the receipt in proof of the sale of movable properties was produced on behalf of Mt. Kamal Devi. The movables were attached a few days after 14 June 1923.

(3.) In the present case the plaintiff alleged in para. 5 of his plaint that in order to evade payment of the debts due by Anrudh Kumar to him, he had all along been making transfers in respect of his property in favour of his wife Mt. Kamal Devi without any consideration, so that now the whole of the movable and immovable properties stand in her name and that she by reason of her being the universal donee of the entire movable and immovable properties, is liable for payment of the debts due by defendant 1. It was on that account that she was made a defendant. The relief claimed by the plaintiff was for a decree for the principal sum due together with interest from 14 March 1921, to 17 September 1923, the date of filing the suit, at 6% per annum by way of damages against both the defendants. In the plaint the plaintiff did not mention any of the dates of the alleged transfers an favour of defendant 2, but in an application praying for injunction, which was dated 17 September 1918. and was filed on 19th September i.e., one day after the filing of the plaint, the three dates, 5 May 1920, 10 November 1921 and 14 June 1923, were actually mentioned. The plaintiff did not in the plaint allege specifically that these transfers were wholly fictitious and null and void, nor did he even ask for the specific relief of a declaration that these transfers had been made in order to defeat or delay creditors and were liable to be avoided by the plaintiff under Section 53, T.P. Act.