TARA KIRAN Vs. HARKISHEN DAS

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for a declaration by the sons of Jagannath Prasad that the joint property belonging to the family was not attachable and saleable in execution of a simple money decree obtained by defendant 1 against their mother. The facts leading up to this litigation are as follows: Jagannath Prasad and his two minor sons, the present plaintiffs, formed a joint Hindu family and owned considerable property. About 1918, Jagannath Prasad became heavily indebted, though it is not clear that there were any mortgages on his estate in existence at that time. In October 1918, he was arrested in connexion with the Katarpur riot and admittedly remained in jail till August 1919, when he was actually convicted. At first he was ordered to be transported for life, but later on the sentence was reduced to one of seven years imprisonment.

(2.) On 10 February 1919, while Jagannath Prasad was in jail, he executed a deed of gift of a 5 biswas share in mauza Nasirpur Khurd in favour of his wife Mt. Parbati. The recital contained in the deed is that she was faithful and obedient to him and he had love for her, and in consideration thereof he had gifted the property to her. Subsequently, on 27 June 1921, which was long after his conviction, Mt. Parbati executed a deed purporting to be a mortgage-deed for Rs. 15,500 in favour of the defendant Hari Kishan Das. This document was attested by Jagannath Prasad himself. It recited that there were debts due from the lady and her husband Jagannath Prasad and it was necessary to make arrangements for their payment. The consideration consisted of Rs. 3,133 set off against an amount due to the creditor himself, about Rs. 3,000 due from the executant on the basis of promissory notes executed by her and the balance of about Rs. 8,000 odd on account of previous debts of Jagannath Prasad. Under this document she hypothecated the share which had been gifted to her by her husband. In 1924, the defendant sued and obtained a decree for recovery of this amount, but the decree was only a simple money decree inasmuch as he failed to prove that the document had been duly attested and was effective to create a charge on the property. In execution of this decree he sought to attach the very property which had been included in the deed. An objection was raised on behalf of the minors in the execution department, and these objections being disallowed, the present suit for declaration was filed.

(3.) The plaintiffs case in the plaint was that the document purporting to be a deed of gift in favour of their mother was a wholly fictitious document and that it was never given effect to and she never obtained possession under it. It was further asserted that the father had no power in law to gift the property to the mother and, therefore, the transfer was in no way binding on the plaintiffs. In his written statement the defendant pleaded that it was the duty of Jagannath Prasad to maintain his wife Mt. Parbati and to provide her food and raiment and that it was with that object that he gifted a very small portion of the estate to her and gave it to her as stridhan property of which she became an absolute owner. The written statement then went on to allege that the mortgage-deed was executed for the purpose of raising money to pay off the previous debts of Jagannath Prasad, and for raising money to meet the expenses of the criminal case which was pending against him, that the document was executed with the consent of Jagannath Prasad and was binding on the plaintiffs.