Ram Pragash Lal vs Mt. Bhikna Kuer and Others

Foster, J.—The question that was most important in the decision of the appeal out of which this second appeal arises was whether the plaintiff Musammat Bhikna Kuer had a cause of action. The previous plaintiff was Musammat Sundar Kuer and on her death pendentelite the present plaintiff was substituted on the ground that she was the transferee of the heir of Musammat Sundar Kuer. The defendant immediately raised the issue whether Musammat Bhikna Kuer had a right to sue in that capacity. It is obvious that the defendant was competent to raise this issue. The plaintiff is suing for a declaration that is hostile to the defendant''s interest and the defendant can point to the terms of Section 42 of the Specific-Relief Act and ask that they shall be respected. The plaintiff in such a case as this must be one entitled to some legal character or to some right as to the property, and the defendant says "You must first show that you have interest in this property before you can move the Court for a decree that will possibly affect my interest" for the defendant claims to have purchased in auction sale the very land in respect of which the declarations are being sought in the present suit, and the declarations contained in the reliefs are directly repugnant to the defendant''s alleged title. The plaintiff''s right to sue having been challenged she relies upon a document executed by the admitted owner of the property of Harbans Sahay. That document purports to convey the property to Musammat Bhikna Kuer who is to be Malik and it is stated that the grant is made banazar parwarish. In the first Court this was held to be a deed of gift which required attestation u/s 123 of the Transfer of Property Act, and as the evidence shows that there was no attestation effected, the deed was null and void. The learned Subordinate Judge in appeal held that this was not a deed a gift but a deed of conveyance. It is difficult to understand what kind of conveyance is meant by the learned Subordinate Judge. It cannot be a sale, for a sale is transfer of ownership in exchange for a price paid or promised; nor does it fit in with definition of a settlement to be found in the Indian Stamp Act. It is an absolute transfer and it appears to me to be purely voluntary. The fact that it was made banazar parwarish only indicates to me what was the motive of the grantor and in my opinion this is a good example of the difference between consideration and motive. Here there is no promise and no act on the part of the donee in return for the grant. I hold that the transfer Exhibit 2 is a transfer that falls under the definition of gift and that as it was not attested in accordance with the provisions of Section 123 of the Transfer of Property Act it is null and void. It follows that the plaintiff Musammat Bhikna Kuer has not shown any title that would justify her coming into Court u/s 42 of the Specific Relief Act. The appeal must therefore succeed, and in view of the fact that the defendant is successful on this one point it is unnecessary to go into other questions raised in the suit. Costs to the defendant.

Foster, J.

I agree.