K K DAS, RECEIVER Vs. SMAMINA KHATUN BIBI

JUDGEMENT

(1.) Kazi Abdul Aziz (defendant 3) borrowed sums of money from Radha Bullav Saha (defendant 1), on different occasions from 24 April to 17 October 1928. The said defendant 1 brought a suit in 1931 to recover the same and got a decree for Rs. 3129 odd on 6 May 1932. Kazi Abdul Aziz had a running business with Shaikh Muhammad Hanif (defendant 2). The accounts were twice adjusted: once on 13 April 1931, when Rs. 1907 odd was found due from the former to the latter, and again on 17 October 1931 when a sum of Rs. 2304 odd was similarly found due. For both these amounts Abdul Aziz executed hatchittas in favour of Muhamed Hanif. Transactions between them however continued on till 5 April 1932. On that date the former was in debt to the latter to the extent of Rs. 2076 odd. The latter brought a suit and recovered a decree for the same on 10 March 1933. These two decree-holders executed their decrees and attached some properties as belonging to their judgment-debtor. The plaintiff-appellant, who is the wife of Abdul Aziz, preferred two claims. These claims were dismissed by the execution Court on 31 August and 4 October 1933 respectively. She then instituted this suit under the provisions of Order 21, Rule 63, Civil P.C., on 8 November 1933. In the suit she claims the properties described in three Schedules A(1), B(1) and C(1) as her own. On some of the plots included in Schedule A(1) stands a pucca dwelling house. She also claims the same on the ground that she constructed it with her own money after the lands had been conveyed to her in 1909 by her husband in consideration of the dower money then due to her.

(2.) The learned Subordinate Judge by his judgment and decree dated 12 December 1935 allowed her claim to the lands described in Schedule A(1) and to the structures thereon, but has dismissed her suit in respect to the properties described in Schedule B(1) and C(1). This appeal is confined to the lands of Schedule A(1) and to the structures thereon. We are told that an appeal has been filed by her against that part of the decree of the Subordinate Judge which is against her. Nothing which we may hereafter say shall be taken to prejudice any of the parties in respect of the properties of Schedules B(1) and C(1). Defendants 1 and 2 have preferred this appeal in which they challenge the findings and conclusions of the learned Subordinate Judge in respect of the lands of Schedule A(1) and the buildings thereon. With regard to the lands of the said Schedule we hold that the learned Subordinate Judge is right in his conclusions. The said lands had been conveyed to the respondent by her husband by a registered kobala dated 25 May 1909 (Ex. I). The consideration recited is the liquidation of half the dower debt then due to her. The evidence is one-sided, that a dower of Rs. 1102 was fixed at the time of the marriage. There is no evidence that that debt had been discharged by the husband before May 1909 in any other way. There is also no evidence that the husband was involved in 1909. There is no reason why he should axecute a fictitious deed as far back as 1909. We accordingly hold in agreement with the learned Subordinate Judge that Ex. 1 is a valid document and had passed to the respondent the lands described in Schedule A(1) of the plaint.

(3.) Some of the plots mentioned in Schedule A(1) constituted the homestead of the couple. The evidence is that at the time of Ex. 1 there were kutcha structures thereon. Thereafter valuable structures costing about Rs. 4000 have replaced those kutcha buildings. The respondent's case is that with her own money she built these structures in or about the year 1923. She and her witness Abdul Barik Mallik have said that these structures had been built with the sum of Rs. 2000 which had been given to her by her father, with Rs. 1500 being the sale proceeds of her ornaments and with Rs. 500 being the accumulated profits of her property. The learned Subordinate Judge has believed this story but we cannot. There is overwhelming documentary evidence that the pucca structures were built not in 1923, but the building operations commenced in 1927 at the earliest. The trades people who supplied the materials have been examined by the contesting defendants. They have proved that materials were supplied on credit to defendant 3 from 1927 to 1932. The account books produced by them (Ex. A to Ex. D series) corroborate their oral testimony. The evidence in support of the respondent's case that she got Rs. 2000 from her father and Rs. 1500 from sale of ornaments is of a flimsy character. Nor is there any corroborative documentary evidence to support the case that Rs. 500 had been saved from her income and applied to the building. On the evidence we hold that the building had been raised by defendant 3 with his money.