S. K. Das. - (1.) THE Judgment of the court was delivered by
(2.) THIS is an appeal by special leave from the judgment and decree of the High court of Calcutta, dated 6/04/1950, by which the said High court affirmed the judgment and decree of the Subordinate Judge of Asansol dated J 30/06/1943, in Title Suit No. 2 of 1942. The suit was instituted by the four sons of one Ram Kishori Lal Sao, a resident of Asansol in Bengal, who died in September 1927. One of the plaintiffs, Kalicharan, died during the pendency of the suit and his heirs were brought on the record as plaintiffs in his stead. The defendants were Sumitra Devi, widow of the late Ram Kishori Lal, (defendant No. 1) and Kamala Devi, daughter of the late Ram Kishori Lal (defendant -No. 2). The said defendants, 1 and 2, are the appellants before us. The suit was instituted for a declaration that a deed of gift dated 10/03/1940, executed by Sumitra Devi in favour of her daughter Kamala Devi, was void and inoperative beyond the lifetime of Sumitra Devi and was not binding on the reversion. The following genealogical table shows the -relation inter se, between the parties: Ram Kishori Lal 3rd wife 4th wife 5th wife Sumitra Devi (Deft. 1) Kalicharan(Plff.3) Rambandhu BachuLal Heman Lal died during pen: (plff. 4) (Plff. 1)(Plff. 2) dency of the suit - Mst. Ram Sakhi (Plff. 3 gha) Satyanarain HiralalGopal Lachmi Narain Kamala Devi (Plff. 3 Ka) (Plff. 3 Kha) (Plff - 3 Ga) (died on I -I -36) (Deft. 2) On his death, Ram Kishori Lal had left extensive properties worth several lakhs, including some houses in Asansol, two businesses at Howrah and Asansol, and large amounts of money deposited in Banks or invested in loans etc. Shortly after his death Sumitra Devi, for herself and as guardian of her two children, Lachmi Narain and Kamala, brought a suit against her step. sons for partition of the properties left by her husband. This suit was registered as Title Suit No. 664 of 1927 in the court of the Subordinate Judge of Asansol. A preliminary decree was passed in the suit on 22/07/1933, and a final decree on 29/06/1936. This decree provided for payment of Rs. 10,000.00 as expenses for the marriage of the minor daughter Kamala, in addition to a maintenance allowance of Rs. 50.00 per month to her until she was married. Lachmi Narain, it should be noted, died on 1/01/1936. By the final decree' each of the sons obtained one -sixth share of the estate of Ram Kishori Lal. By reason of the death of Lachmi Narain before the final decree, Sumitra Devi got one -third share of the estate, one - sixth in her capacity as widow and one -sixth as the mother of her pre -deceased son. The allotment in favour of Sumitra Devi consisted mostly of house properties, and the four houses of her share with which we are concerned in this litigation were described in a schedule to the plaint and stood on Municipal Holding Nos. 116, 17, 26 and 27 of Circle 4 of the Asansol Municipality. The value of these four houses was found by the Commissioner at the time of partition to be in the neighbourhood of Rs. 19,000.00 only. The marriage of Kamala Devi was settled with one Bijoy Kumar Sao, son of Nand Lal Sao, a retired Deputy Postmaster, Patna General Post Office. The case of the appellants was that the marriage was settled at Deoghar on Shivratri day in 1938 and the plaintiffs, respondents before us, had no concern with the negotiation ; it was alleged that the terms of the marriage settlement included a promise by Sumitra Devi of a gift of four houses at Asansol, worth about Rs. 20,000.00 as marriage dowry for Kamala. The further case of the appellants was that at the time of the marriage itself, which was performed on 10/05/1938, Sumitra Devi made a 'sankalpa' of the gift of four houses at Asansol, which was accepted by Nand Lal Sao on behalf of Kamala, and the gift was later confirmed on the occasion of the Dwiragaman (Gowna) ceremony which took place in December, 1938, and possession of the houses was also given to her; soon after the marriage, however, Sumitra Devi feel ill and the deed of gift was actually executed and registered on 10/03/1940, some two years after the marriage. This was the deed of gift which was impugned by the plaintiffs -respondents.
(3.) THE case of the plaintiffs -respondents was that the marriage negotiations took place at Asansol and did not contain any promise of the gift of four houses as marriage dowry. THE plaintiffs -respondents alleged that the arrangements were that ornaments worth about Rs. 5,000.00 were to be given to Kamala Devi, a sum of Rs. 800.00 was to be paid as travelling expenses of the bridegroom's party, and gifts of some moveable properties were to be made out of the balance of the sum of Rs. 10,000.00 which was set apart for the marriage expenses of Kamala Devi. THE plaintiffs -respondents denied that there was any ante -nuptial promise of a gift of four houses as marriage dowry or that there was any 'sankalpa' at the time of marriage or any confirmation of the gift at the Dwiragaman ceremony. THEy alleged that Sumitra Devi, under the evil advice of her father and son -in -law -and to deprive the plaintiffs -respondents of their right, made a gift of the four houses at Asansol in favour of Kamala Devi on the 10/03/1940, a gift which she was not competent under the law to make. It was alleged that the gift was collusive, fraudulent and without consideration; and in any event, it could not be operative beyond the lifetime of Sumitra Devi and was not binding on the reversion, as she had only a life interest in the corpus of the property and there was no justifying legal necessity for the alienation made by her. It wag also alleged that Sumitra Devi was not legally competent to make a gift, as marriage dowry of her daughter, of such a big and unreasonable portion of the estate left by her husband. On the aforesaid pleadings of the parties, the principal issues were Issues Nos. 2 and 3 which were in these terms: Rs.2. Is the defendant No. 1 competent to make any gift of the properties mentioned in the plaint beyond her lifetime to defendant No. 2 ? Is it void and inoperative against the plaintiffs beyond the lifetime of defendant No. 1 ? 3. Is the deed of gift executed by defendant No. 1 in favour of defendant No. 2 with the alleged collusive and fraudulent allegations binding on the plaintiffs on her death ?' It is necessary now to summarise the findings of the courts below on these issues. On the questions of fact involved in the two issues, the learned Subordinate Judge came to the following findings : (1) the marriage of Kamala Devi was settled at Deoghar as claimed by Mst. Sumitra Devi and not At Asansol; (2) there was, however, no promise of any gift by her of four houses at JUDGEMENT_434_AIR(SC)_1957Image1.jpg Asansol either at the time of the settlement of the marriage terms at Deoghar or during the marriage ceremony; (3) the story of the delivery of possession of the houses to Kamala Devi was not supported by reliable evidence. Basing his decision on the aforesaid findings of fact, the learned Subordinate Judge' held that the interest created in favour of Sumitra Devi in respect of the properties allotted to her on partition was in the nature of an ordinary maintenance grant and she had no right to alienate the same in favour of her daughter. Even if she had the limited right of disposal, as in the case of a Hindu widow, she was not competent to execute any deed of gift, except with regard to a reasonable portion of the estate of her husband at the time of the marriage of Kamala Devi or on the occasion of the Gowna ceremony. Though the learned Subordinate Judge found that the properties given to Kamala Devi constituted a reasonable portion of the estate, he held that the gift not having been made at the time of the marriage or on the occasion of the Gowna ceremony in accordance with the provisions of s. 123, Transfer of Property Act, was not binding on the plaintiffs -respondents and could not operate beyond the lifetime of Sumitra Devi. He accordingly decreed the suit.;