1930 (7) TMI 21 - HC - Indian Laws

Appeal allowed, Subordinate Judge's decree restored. Appellant awarded costs in Chief Court. His Majesty informed.

The appeal was allowed, and the decree of the Subordinate Judge was restored. The appellant was awarded costs in the Chief Court and for this appeal. The ... - Issues Involved:1. Validity of the deed of gift.2. Validity of the deed of wakf.3. Plaintiff's entitlement to the declaration that the properties are not liable to attachment and sale.Detailed Analysis:1. Validity of the Deed of Gift:The plaintiff claimed that the deed of gift executed on 30th June 1917, was valid and that the properties were transferred to her in lieu of her dower. The court examined the evidence provided by the plaintiff and defendant 2, who were the only witnesses. The evidence was found to be untrustworthy, with no corroboration from any independent sources. The court noted discrepancies in their testimonies, particularly regarding the alleged sale of jewelry to fund the construction of structures on the gifted property. The court concluded that the story of the unsatisfied dower was untrue and that the deed of gift was executed with the intention to defeat or delay any claims by the appellant. Therefore, the suit on this point failed.2. Validity of the Deed of Wakf:The plaintiff also sought validation for the deed of wakf executed on 19th November 1916, covering plot 46 and a portion of plot 45. The court scrutinized the evidence with suspicion, given the fraudulent nature of the deed of gift. The court found that defendant 2 had paid a substantial portion of the purchase money for the properties and that his name was initially recorded in the Municipal Board's records. Despite a letter in 1915 indicating a transfer to his wife, no formal document was executed. In 1920, an application was made to the Municipal Board to transfer the plots to defendant 2, which contradicted the claim of a genuine wakf. The court found the evidence regarding the source of funds for the construction of buildings on the wakf property to be untrustworthy. The court concluded that the deed of wakf was executed without any intention of divesting ownership and was intended as a shield against potential claims by the appellant. Hence, the deed of wakf was deemed invalid.3. Plaintiff's Entitlement to Declaration:Under Order 21, Rule 63, the decision in the claim proceedings was final, subject to the outcome of the suit. The plaintiff sought a declaration that the deeds were valid and that the properties were not liable to attachment and sale. The court held that the plaintiff failed to establish that the deeds were bona fide and intended to pass the beneficial interest. The court found that defendant 2 remained the true owner and in possession of the properties, and the deeds were executed with fraudulent intent. Consequently, the plaintiff was not entitled to the declaration sought.Conclusion:The appeal was allowed, and the decree of the Subordinate Judge was restored. The appellant was awarded costs in the Chief Court and for this appeal. The court advised His Majesty accordingly.