- (1.) THESE two cases arise out of one suit and the two appeals have been filed by two different sets of defendants. One Kundan Lal was the owner of the property in suit. He had two sons and two daughters. The sons were Nathu Ram and Sunder Lal and the daughters, Asharfi and Bhudevi. Nathu Ram predeceased his father and on the death of Kundan Lal the entire property was inherited by Sunder Lal. The daughter Asharfi died without any issue and Bhudevi is the plaintiff. Nathu Ram died leaving two daughters, Anandi Devi and Premvati who were married respectively to Suraj Bhan and Gyan Chand. Sunder Lal also died. Imarti Devi, defendant No. 4 was his widow. On 1/7/1944, she remarried one Raj Bahadur of village Dhansari. A few months before her remarriage on 31/3/1944, Imarti Devi sold the residential house to Smt. Gomti, defendant, No. 1, for Rs. 2,500. 00 and on 23/6/1944, she sold the shop to Mohan Lal and Ram charan for Rs. 4,000/ -. Ram Charan is dead and his legal representatives are his widow and two sons. After the remarriage of Imarti Devi on 1/7/1944, the suit out of which these appeals have arisen, suit No. 20 of 1946, was filed by Smt. Bhudevi claiming that the two transfers made by imarti Devi on 31/3/1944 and 23/6/1944 were without legal necessity and that on the remarriage of Imarti Devi, she (Bhudevi) had become the owner of the property as the nearest heir alive to sunder Lal.
(2.) THE suit was defended by Smt. Gomti, Mohan Lal and Ram Charan's widow who filed separate written statements. In Gomti's written statement, she pleaded that the transfer in her favour was for legal necessity and that she had purchased the property for value and after due enquiry. In the written statement of Mohan Lal, the plea taken was that the transfer was justified by legal necessity. In the written statement filed by Ram Piari alias Durga Devi, widow of Ram charan, pleas were taken that the transfer was for legal necessity and that she had purchased the property in good faith and after due enquiry. A further plea was taken by Smt. Gomti in her written statement, paragraph 17, that Imarti Devi had not contracted a second marriage which fact the other two defendants had also denied and she went on to say that "if in the opinion of the Court she is found to have contracted a second marriage then on account of the fact that Mst. Imarti and her relations were the followers of Arya Samaj and they could, as such, remarry, her marriage as a widow could be performed. Second marriage among the members of her brother-hood is lawful according to custom and a widow is not deprived of her husband's property on account of her second marriage according to custom". The learned Civil Judge, Mr. Gahlaut, on 30/11/1946 in the presence of the parties and their counsel, defendant No. 6, Imarti Devi alone being absent as she had refused to receive the summons and had not filed her written statement, framed the following issues: 1. Were the sale deeds in suit executed for legal necessities? If so, are they binding on the plaintiff? 2. Have defendants 2 to 5 spent anything in repairs of shop? If so, how much? 3. Is the suit for the shop barred by time? 4. Has Imarti Devi remarried and when? What is its effect? 5. Is the plaintiff entitled to take possession and get the damages claimed? One of the pleas taken by Mohan Lal was that he had spent some money over the repairs of the shop which, it is said, was in a dilapidated condition.
(3.) LEARNED counsel for the appellant has attacked the decree of the lower court both on the merits as well as on the ground that it had framed no issue as regards the custom pleaded in the written statement of Gomti or as regards bona fide enquiry.;