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1953 (8) TMI 30

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..... e deed not only in respect of the one-third share in the property of the entire property of Sallar in favour of the Sallar which belonged to him, but in respect of Union Bank, Utraula. After this sale deed had been executed the plaintiff Ramrati brought a suit for cancellation of the sale deed executed by Raghubar Dayal in favour of the Union Bank of Utraula against her. This suit was resisted by the Union Bank on various grounds. The contesting defendant denied that the plaintiff was the owner of the property in respect of which she had sued, or that the gift deed relied upon by the plaintiff had been executed on the 20th February 1946, and it was alleged that the gift had been acquired subsequently to defraud the defendant. The lower Court originally framed four issues in this case which are reproduced below: 1. Did defendant No. 2 execute any deed of gift in favour of the plaintiff as alleged? 2. Was there any family settlement according to which the plaintiff and defendant No. 3 are entitled to any and what share? 3. Is the sale deed in favour of defendant No. 1 by defendant No. 2 valid? Is the deed invalid for want of consideration? 4. To what relief, if any, is .....

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..... Bank, Utraula, was invalid and inoperative to the extent of one-third share in the property covered by the saledeed and held the sale deed to be good against the plaintiff in respect of the remaining two-thirds or the property. Dissatisfied by the judgment and decree of the lower appellate Court both the plaintiff and the Union Bank, Utraula, have come up in second appeal. 4. As the points involved in the two cases are more or less common and the appeals arise out of the same suit, it would be convenient to dispose of both the appeals together. 5. The first point which has been pressed in arguments on behalf of the appellant, the Union Bank, Utraula, is that the deed of gift relied upon by the plaintiff should not have been given preference over the sale deed obtained by the Bank. The reasons put forward are that the plaintiff had failed to establish that there was a completed gift in existence before the sale deed was executed by Raghubar Dayal in favour of Union Bank, Utraula. It has been found by the trial Court, and this finding has also been accepted by the lower appellate Court, that the deed of gift was in fact executed on 20th February 1946, and this finding of fact c .....

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..... s v. Subba Rama', AIR 1928 PC 86 (A) and it has been held that a gift would be a valid gift if the gift has been accepted even though the document may not have been registered at the time of the execution of the document, and it cannot be revoked subsequently, if the document has been registered. 7. It was urged on behalf of the appellant that the execution of the sale deed before the registration of the deed of gift was tantamount to a revocation of the gift deed. It has been held in the Privy Council case referred to above that after the gift had been completed it cannot be revoked even though the document may not have been registered. The execution of the subsequent sale deed in favour of the Union Bank, Utraula, would not, therefore, amount to a revocation of the gift made by Raghubar Dayal in favour of Ramrati. 8. As there had been a completed gift in favour of the plaintiff, the gift would take effect from the date of the execution and not from the date of registration. Section 47, Registration Act is clear on the point and lays down that a registered document shall operate from the time 'from which it would have commenced to operate if no registration thereof h .....

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..... e, affect the rights of Ramrati in the gifted property and the finding of the lower appellate court on this point cannot be assailed. 10. The other appeal is on behalf of the plaintiff Ramrati whose suit for cancellation of the sale deed against two-third share of the property has been dismissed. Learned counsel for the appellant has conceded that so far as the share of Gangajali goes, she has no title to maintain a suit in the life time of Gangajali. Smt. Gangajali became owner of one-third of the property on a partition between Ram Harakh, Ramrati and herself and the plaintiff could lay no claim to this part of the property. Whether Raghubar Dayal had or had not any right to make a transfer of the share held by Gangajali in favour of the Union Bank, Utraula, does not arise in this case. The plaintiff has not established any right to that property and as such she could not maintain a claim in respect of that property. 11. Turning now to the remaining one-third share of the property comprised in the sale deed in the suit the plaintiff inherited this property on the death of her husband Ram Harakh who was the owner of this one-third share under the deed of partition. The pla .....

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..... on behalf of the plaintiff on a Division Bench ruling of this Court in -- 'Ganga Saran Singh v. Mt. Sirtaji Kuer', AIR 1935 All 924 (B), in which this point came up for consideration and it was held that it was open to a Hindu widow not to take advantage of the Hindu Widows' Remarriage Act and to contract a remarriage under a custom or under the tenets of a particular class of Hindu society. A perusal of this ruling leads to the conclusion that if a person setting up a custom under which re-marriage was said to have been performed fails to establish the custom, the remarriage may be a nullity and the widow contracting such a remarriage would be deemed to be living as an unchaste woman. The view taken in two other cases of this Court, both of which are Division Bench cases, is, however, slightly different. In -- 'Bhola Umar v. Mt. Kausilla', AIR 1937 All 230 (C), it was held that while Section 2 would not be applicable to the case of remarriage which is permitted under a custom it would apply to all other cases in which a person fails to establish the custom or any other law or practice under which the remarriage was performed. This view was affirmed in a late .....

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..... to the property in respect of which she claimed a decree. No evidence having been led by the plaintiff to prove that she had a subsisting title to the property, it would not be proper to remand the case to the trial Court for a rehearing after framing a definite issue. 13. In view of my findings above, the plaintiff appellant has not been able to establish her rights to the two-thirds share of the property in dispute and her claim for cancellation of the sale deed executed by Raghubar Dayal in favour of the Union Bank, Utraula in respect of this two-thirds share in the property has been rightly rejected. 14. It may be rioted that the relief claimed by the plaintiff was not properly worded or expressed. The plaintiff was no party to the sale deed and she was, therefore, entitled only to a declaration that the sale deed executed by Raghubar Dayal in favour of the Union Bank, Utraula was not binding on her in respect of the property owned by her. The prayer in the plaint, however, was that the sale deed executed in favour of the Union Bank by Raghubar Dayal be cancelled. The intention evidently was that the sale deed may toe declared ineffectual and null and void as against the .....

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