ISTAK KAMU MUSALMAN AND GHELABHAI NANJI SHET GUJARATHI Vs. RANCHOD ZIPRU BHATE

JUDGEMENT

(1.) THIS appeal arises out of a suit filed by the plaintiff for a declaration that Certain gifts were void, for recovering one-third share in the properties conveyed by them and for other ancillary reliefs. The main facts in this case are undisputed. Chunilal, a wealthy but profligate Bania of Dharangaon, died without issue on April 12, 1938. In 1908 when he was forty years of age, he brought defendant No.1, a Mahomedan prostitute girl of fifteen, from Aurangabad, and kept her as his mistress. He kept her in a separate bungalow till the death of his wife Kasabai in 1931, and thereafter they lived together in the same house. On January 5, 1914, six years after defendant No.1 became his mistress, Chunilal gave her a bungalow worth Rs. 1,000 and two lands worth. Rs. 3,000 by two gift deeds, exhibits 181 and 183, and another house worth Rs. 400 in 1926 by the gift deed, exhibit 188. He then passed four more deeds ,of gift in her favour in 1929 and 1931, and two in favour of her brother, defendant No.2, in 1931 and 1932. The properties thus gifted were given into their possession and are in their enjoyment. The plaintiff and defendants Nos. 3 and 4 are the grandsons of Chunilal's separated uncles and claim to be his nearest heirs. The plaintiff brought this suit to recover by partition his one-third share in Chunilal's property, alleging that all the gift-deeds passed by him in favour of defendants Nos. 1 and 2 were void, as their consideration was past and future cohabitation with defendant No.1. The lower Court held that the plaintiff and defendants Nos. 3 and 4 were the nearest heirs of Chunilal, and the gifts were void, but the claim to recover the properties given under exhibits 182, 183 and 188 was time-barred. A preliminary decree for partition of the properties conveyed by the other six gift deeds was passed in favour of the plaintiff. THIS is an appeal against that decree by defendant No.1 alone. Defendant No.2 has not appealed, and thus we are concerned in this appeal only with four gift deeds, exhibits 185, 189, 184 and 186.

(2.) THERE is no substance in the contention of defendants Nos. 1 and 2 that the plaintiff and defendants Nos. 3 and 4 are not the nearest heirs of Chunilal. It was suggested in the plaintiff's cross-examination that Chunilal had five sisters and it is urged that the plaintiff has not proved that none of them left any male issue at the date of' Chunilal's death, Chunilal was taken in adoption by Laxmandas and the said sisters are the daughters of Laxmandas including Chunilal's own mother Tapabai. Of the five sisters it is admitted that Ramabai and Chaturba had no issue. The plaintiff admitted that Tapabai, Chunilal') mother, Mathurabai and Bhimabai had issue and the plaintiff says that he did not make any inquiries about these. It is contended, therefore, that the burden of proving that there were no nearer relations to Chunilal at the date of his death lay on the plaintiff, and as the plaintiff on his own showing did not make any enquiries about the sons of Chunilal's sisters, who would be his legal heir's in preference to himself and defendants Nos. 3 and 4, he is not entitled to any relief. THERE is some force in this contention. But defendant No.1 who was examined on commission herself admits that on Chunilal's death she had sent a motor car to invite the plaintiff, his son and defendant No.3 and that they were the only nearest relatives of the deceased. She frankly admits that she does not know that deceased Chunilal had any other nearer relative. She has nowhere suggested that any of Chunilal's sisters had issue living at the date of his death. No son of Chunilal's sisters is mentioned or coming forward. Defendant No.4 says that deceased Chunilal had no heirs of his sisters and that himself, defendant No.3 and the plaintiff are his heirs and the nearest bhaubands. He, however, says that when Chunilal died none of his sisters nor any of their sons was alive. His evidence has been believed by the lower Court. The plaintiff's witnesses do not help the plaintiff since they speak of only two sisters of Chunilal and therefore, do not know anything about the other three sisters and their sons. But on the evidence of defendant No.4 and the admission of defendant No.1 we hold that the plaintiff and defendants Nos. 3 and 4 are the nearest heirs of deceased Chunilal, The plaintiff having died during the pendency of the suit his sons were brought on record and they continued the suit.

(3.) UNDER Section 23 of the Indian Contract Act, the consideration or object of an agreement is unlawful if the Court regards it as immoral or opposed to public policy, and every agreement of which the object or consideration is unlawful is. void. The second clause of Section 6 (/i) of the Transfer of Property Act says: No transfer can be made for an unlawful object or consideration within the meaning of Section 28 of the Indian Contract Act, 1878.