MT NAUROZI Vs. NAFAF ALI SAH

JUDGEMENT

(1.) This is a second appeal from the decision of the Subordinate Judge of Gaya reversing a decision of the Munsif. On 11 July 1921, Najaf Ali Shah executed a deed of gift whereby he purported to convey the whole of his property to his daughters Mt. Latifan and Mt. Mahbuban. In 1926 Najaf Ali and his daughters joined in executing a usufructuary mortgage of certain jagir land which had formed part of the subject-matter of the deed of gift to Mt. Naurozi, wife of Abdul Ghani. In 1935, Mt. Naurozi who had been ejected from the mortgaged property instituted a suit for the mortgage money and damages against Najaf Ali and his daughter. Mt. Mahbuban had died before the suit was decided and her daughter Mt. Kanizan was substituted as her personal representative. On 19 June 1935, Mt. Naurozi entered into a compromise with Mt. Latifan and Mt. Kanizan whereby it was agreed that the name of Najaf Ali should be expunged from the record as a person having no interest in the mortgaged property and that there should be a money-decree against the daughter and grand-daughter for the amount claimed. On 23 September 1935, Mt. Kanizan instituted a partition suit against her aunt Mt. Latifan in which Najaf Ali was subsequently impleaded, while later still the purchaser of the property with which we are here concerned was added as a defendant.

(2.) Mussamat Naurozi put her decree into execution attaching the property which had been mortgaged under Order 21, Rule 54. Najaf Ali thereupon on 16 March 1936 preferred a claim under Order 21, Rule 58, which was dismissed on 21 of March apparently for default. He then instituted the suit out of which this appeal arises under Order 21, Rule 63 making defendants Mt. Naurozi and his own daughter and grand daughter. During the pendency of the suit the property was brought to sale in the execution proceedings when it was purchased by Umacharan Lal. This man was not a party to the present suit, but he was added as has been stated above as a defendant in Mb. Kanizan's suit for partition. Najaf Ali prayed for a declaration that the property in suit belonged to him and not to his daughter and granddaughter; and he prayed for an injunction restraining Mt. Naurozi from putting up the property for sale; but, he failed to obtain an injunction before the execution proceedings came to an end. Mt. Naurozi by her written statement alleged that the plaintiff had acquiesced in the compromise in the mortgage suit and that the claim under Order 21, Rule 58 had merely been made in order that it might be possible for Najaf Ali to institute a suit under Rule 63. She put forward the deed of gift of 11 July 1921 and alleged that the plaintiff had not been in possession of the property of which title was transferred by the deed of gift.

(3.) At the trial of the case the issues between the parties were stated in very broad and general terms; but when the parties came to evidence the Munsif remarked that the plaintiff admitted execution of the deed of gift and the usufructuary mortgage, but alleged that both of these transactions were mere benami transactions carried out at the instance of Abdul Ghani, Mt. Naurozi's husband. There was no suggestion in the plaint that these transactions had been benami or collusive on which account the Munsif declined to consider the evidence on that point. For the rest, the Munsif found that possession had been given of the property conveyed by the deed of gift which was therefore valid and effective and he dismissed the suit. He also remarked that after the purchase by Umacharan Lal, it was necessary for the plaintiff if he wished to succeed to amend his plaint and pay ad valorem court-fees.