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TMI Blog1934 (9) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... im Singh, died childless Durga Bakhsh Singh, died in 1919= Thakurain Raj Kuar Widow, died on 4th April 1931 Ganga Bakhsh Singh, died in 1921=Thaknrain Raghuraj Kuar Thakur Harihar Bakhsh Singh, died child less on 8th April 1923 Thakurain Shiama Kuar married to Surendra Bikram Ranjit Shah Thakurain Brijraj Kuar Defendant 2=Thakur Gajendra Shah Defendant 1 3. Thakur Raghunath Singh mentioned in the pedigree set forth below was the first person of this family to be granted a Talukdari Sanad by the British Government in respect of the Jarsadatnagar Estate in the district of Sitapur. His name was entered at No. 94 in List No. 1 and at No. 20 in List No. 5 of the lists prepared under S. 8 of Act 1 of 1869. The Jarsadatnagar Estate was also popularly known as the Halwapur Estate. Thakur Raghunath Singh died about 60 years ago and was succeeded by his son Thakur Kalka Bakhsh Singh. Thakur Kalka Bakhsh Singh died in 1911, and on his death his son Thakur Durga Bakhsh Singh became owner of the Jarsadatnagar Estate. Thakur Durga Bakhsh Singh died in 1919, and the estate devolved upon his son Thakur Ganga Bakhsh Singh, Thakur Ganga Bakhsh Singh died in 1921 and he was succeeded by his mino ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of family settlement (Ex. 1) dated 6th March 1925. He however was prevented from obtaining possession over the estate by Thakur Gajendra Shah, defendant 1, in whose favour Thakurain Raj Kuar had executed the lease of the entire estate. He therefore brought the present suit, out of which these present appeals have arisen for a decree for confirmation of his possession in respect of the villages entered in list 5 attached to the plaint and also for a decree for possession in respect of any part of the Halwapur estate of which he may be deemed to be out of possession. 4. At the commencement of the trial in the lower Court defendant 1 Thakur Gajendra Shah admitted the title of the plaintiff to succeed to the Halwapur or Jarsadatnagar estate as the reversionary heir of the last male holder of the estate and gave up his rights under the deed of lease executed by Thakurain Raj Kuar on 18th September 1930. The plaint was accordingly amended and Pandit Sahai Lal, defendant 4 and Sardar Harcharan Singh, defendant 5, were discharged by the plaintiff, as they admitted that they did not claim to have any right in the property in suit. Owing to the amendment of the plaint and the admission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make a gift of village Khagsiamau to her daughter was also fully discussed before us. We are howeger in agreement with the learned trial Judge that Tillage Khagsiamau was not in fact gifted to Thakur Gajendra Shah and his wife by Thakurain Raj Kuar, and we therefore do not feel called upon to discuss these legal pleas based upon the assumption that such a gift of village Khagsiamau had been made. We therefore hold that the appeal of Thakur Gajendra Shah' and Thakurain Brijraj Kuar must fail in respect of village Khagsiamau. We next turn to discuss the question of the mortgagee rights in the five villages, entered in list 5 attached to the plaint. The facts necessary for the elucidation of this part of the case are as under : (Mentioning the facts, His Lordship proceeded.) The Learned Counsel for the appellants has pointed out that the plaint in this case contravenes the peremptory and clear provisions of O. 6, R. 4, Civil P.C., inasmuch as it does not set forth categorically the particulars of the fraud said to have been practiced by the defendants on the unsuspecting plaintiff, and reliance is placed upon a ruling of their Lordships of the Privy Council reported in Bal Gangadh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above, Thakurain Raj Kuar did not openly flaunt the restrictions imposed upon her by this para. 8 of the deed of family settlement (Ex. 1); she did not ostentatiously transfer her mortgagee rights in these villages mentioned in list 5 attached to the plaint to her son-in-law. She however violated the terms of para. 8 of the deed of family settlement by not filing a regular suit for realising the full amount due under the mortgages held by the Halwapur estate but allowed her son-in-law to redeem the mortgages in respect of the four villages entered in list 5 attached to the plaint for Es. 40,000. In this deed of reconveyance of the mortgaged villages Thakurain Raj Kuar, the mortgagee, instead of realising on behalf of the Halwapur estate the full amount due under the mortgages purported to act like an arbitrator moderating the demands due to the estate from her son-in-law, defendant 1, Thakur Gajendra Shah and delivered herself in the deed itself of the following strange and significant homily: I, having fully taken into consideration the area of the land, the produce of the land and the approximate value of the land, the Government revenue and all other items, have consented to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shah and defendant 3 Sumer Singh and Thakurain Ruj Kuar. The sole point for determination in connexion with these transactions affecting the mortgagee rights is whether Thakurain Raj Kuar had or had not under the terms of the deed of family settlement (Ex. 1) a right to re-convey her mortgagee rights to defendant 1 Thakur Gajendra Shah and to defendant 3 Thakur Sumer Singh, It is only incidentally that the question of the fictitious nature of these transactions is touched upon by the learned Subordinate Judge. The deed of gift (Ex. 2 at p. 103 of part 3 of the paper book) in respect of village Khagsiamau the deed of lease (Ex. 4 at p. 185) and the deed of reconveyance (Ex. 5 at p. 190) were all executed by Thakurain Raj Kuar at about the same time and showed in what direction her mind and her heart were moving. D.W. 3 Maiku Lal at p. 52 of the printed record has deposed that defendant 1 had told him that Thakurain Raj Kuar was willing to redeem on payment of Rs. 56,000 and this intention on the part of Thakurain Raj Kuar was known to her son-in-law Thakur Gajendra Shah even when he purchased the equity of redemption from defendant 3 Sumer Singh on 14th April 1930. There is therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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