- (1.) JUDGMENT : - 1. This second appeal arises out of a suit for possession of two houses. Admittedly, these two houses along with another house, which is not in dispute, belonged to one Bachcha, and after his death, his widow Smt. Sheoraji entered into possession thereof. On 30th August, 1940 Smt. Sheoraji executed two deeds of gift, one in favour of Makundi defendant No. 2 with respect to the two houses in suit and the other in Favour of Laxmi Narain plaintiff with respect to the third house. Shortly after tae execution of the deeds of gift Smt. Sheoraji died. On 1st September 1948 Makundi sold one of the houses conveyed to him under the deed of gift to Mohd. Yusuf who in his turn sold it to Banshi Lal defendant No. 1. The other house conveyed to Mukandi under the deed of gift was also sold by him to Banshi Lal on 3rd September 1948. The present suit was filed by Laxmi Narain plaintiff as the reversioner of Bachcha, for possession of the houses acquired by Banshi Lal under the sales mentioned above. It is not in dispute that the plaintiff is Bachchas daughters son and that he was the presumptive reversioner during the lifetime of Sent. Sheoraji and became the actual reversioner after her death. The case of the plaintiff was that Smt. Sheoraji really intended to make a gift of all the three houses in favour of the plaintiff and that she went to the registration Office in order to execute a deed of gift in favour of the plaintiff and to get it registered, but Makundi, who was living with Smt. Sheoraji and had accompanied her to the Registration Office, managed to get a deed of gift in respect of the house in suit executed in his favour by fraud and resort to improper means. It was stated that Smt. Sheoraji was blind and deaf and it was by taking unfair advantage of her disability that Makundi succeeded in getting the deed of gift executed in his favour. The deed of gift is thus said to be devoid of all legal effect. The case of the plaintiff further was that, at all events, Smt. Sheoraji was only a limited owner of the houses in suit and consequently the title of Makundi under the deed of gift came to an end upon the death of Smt. Sheoraji and he was not competent to transfer them. On these grounds the plaintiff claimed to be entitled to obtain possession of the houses in suit from Banshi Lal defendant No. 1. It may be mentioned that the plaintiff also alleged that he was a minor at the time of the execution of the deeds of gift by Smt. Sheoraji.
(2.) BANSHI Lal contested the suit. He alleged that Bachcha had made an oral will of his entire property in favour of Mukandi, who was his sisters son, according to which Smt. Sheoraji was to remain in possession of the property so long as she lived and Mukundi was to enter into possession after her death. He further alleged that a little after the death of Bachcha, a dispute arose between Mukundi and Laxmi Narain plaintiff, the former claiming the property of Bachcha as a legatee and the latter as heir. This dispute, according to Banshi Lal, was settled by a family arrangement between the rival claimants and Smt. Sheoraji and it was in pursuance of and in accordance with that family arrangement that the two deeds of gift were executed by Smt. Sheoraji with the consent of the plaintiff and he was, therefore, bound by the arrangement and was precluded from challenging the validity and effectiveness of the deed of gilt executed by Smt. Sheoraji in favour of Makundi and of the sale deeds under which Banshi Lal had acquired the houses in dispute. Section 41 of the Transfer of Property Act and S. 115 of the Evidence Act were also pleaded in defence. The trial court decreed the suit, but on appeal by the defendants the suit was dismissed by the lower appellate court and the plaintiff has come in appeal to this Court. Both the courts below held that the deed of gilt dated 30th August 1940 in favour of Makundi was executed by Smt. Sheoraji out of her own free will and was not vitiated by any fraud. They also held that Laxmi Narain plaintiff was not a minor on the date of the execution of the said deed. These findings have not been challenged before me by the learned counsel for the plaintiff. On the question whether Bachcha made any oral will the trial court gave a categorical finding that Bachcha made no oral will as alleged by Banshi Lal defendant. The lower appellate court was, however, not so emphatic in its finding and observed that although it was quite probable that Bachcha might have made an oral will in favour of Makundi, Banshi Lal defendant had not been able to prove that a will had been made. It was mainly in regard to the family arrangement pleaded by Banshi Lal defendant that the courts below took different views. The trial court found that there was no family arrangement and the plaintiff did not give his consent !o the deed of gift executed by Smt. Sheoraji, but, disagreeing with the finding of the trial court, the lower appellate court held that the two deeds of gift were executed by Smt. Sheoraji with the consent and approval of the plaintiff and in pursuance of an agreement to which he was himself a party. On the basis of this finding the lower appellate court came to the conclusion that the plaintiff could not repudiate the deed of gift in favour of Mukundi or the sale deeds in favour of Banshi Lal.
(3.) BANSHI Lal defendant examines a number of witnesses, including the marginal witness to the two deeds of gift executed by Sent. Shoraji Devi, in proof of the family arrangement. They have testified to the fact that the claims made by Makundi and Laxmi Narain appellant with regard to the property of Bachcha led to a dispute and that the dispute was settled and differences were resolved by an arrangement under which Smt. Sheoraji was to gift the houses in suit to Makundi and the third house to Laxmi Narain. According to the evidence of these witnesses, the two deeds of gift dated 30th August 1940 were executed by Smt. Sheoraji to effectuate the agreement reached by Makundi. Laxmi Narain and Smt. Sheoraji and at the time of execution of the deeds of gift Laxmi Narain, who had consented to their execution, was also present. This evidence was believed by the lower appellate court and the appellants denial of the arrangement or the agreement and of all knowledge of the deeds of gift was not accepted as correct. The lower appellate court held that although there was no recital in the gift deeds showing that they had been executed in pursuance of a family settlement the circumstances proved it to the hilt that an agreement had been reached and the two deeds were Executed in pursuance thereof. This is a finding on a question of fact and is based on the testimony of witnesses judged in the light of the surrounding circumstances. The finding is amply supported by evidence and there is nothing which may justify an interference with it, Mr. Seth, learned counsel for the appellant has therefore concentrated his attack on the conclusions of law drawn by the lower appellate court from the facts found by it. Briefly stated, the contentions put forward by Mr. Seth are as follows. Firstly, the arrangement proved by the witnesses examined by Banshilal did not constitute a family arrangement and as such it is not binding on the appellant. Secondly, the deeds of gift purported to be mere alienations made by Smt. Sheoraji to which the appellant was not a party and they cannot, therefore, be regarded as having been executed in pursuance of a family arrangement. Thirdly the appellant did not give his consent to the deed of gift executed by Smt. Sheoraji in favour of Makundi and even if he did so the consent could not render it valid and effective beyond the lifetime of Smt. Sheoraji. ;