Judgement

Appeal (No. 40 of 1945) from a judgment and decree of the High Court (March 12, 1942) which reversed a judgment and decree of the Court of the Additional Subordinate Judge of Etah (July 31, 1935).

The main questions to be determined in this appeal were — (1.) Whether a registered partition award, dated January 8, 1921, created a valid charge in favour of the respondent, Sarla Devi, on the property (the two villages of Qazipur and Mai) allotted to her husband Nidhan Singh ; and (2.) whether Drigpal Singh, the predecessor in title of the appellant, Dan Koer, had notice (actual or constructive) of the said award and charge, when he took a usufructuary mortgage of the said two villages on the following day, January 9, 1921, wherein a reference was made to the said award.

The following facts are taken from the judgment of the Judicial Committee The pedigree of the family, so far as it was material to the case, was as follows —

RAJA LACHMAN SINGH

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Kanhaiya (r.) Mst. Kanabai = Drigpal Singh Kunwar =

(2.) Mst. Champa, (3.) Mst. Dan Kuer

Appellant.

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Daughter Daughter Nidhan Singh = Lakhan Jaswant Lokendra

brother of Mst. Sarla Singh Singh Singh.

Rajendra Devi. |

Bahadur Singh Respondent.

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| | Daughter =

RamsabIndar Raghu Indar Rajendra

Partab Partab Bahadur Singh D.W.

The family was subject to the Mitakshara law of the Benares school. It had considerable property. After the death in 1911 of Kanhaiya, Nidhan Singh and his three brothers effected, about 1912, a partition of their joint family property and separated. After the partition, Nidhan Singh, without any lawful family necessity, improperly contracted debts. He became a spendthrift. His wife, the respondent, who was a purdanashin lady, objected, on behalf of herself and her two minor sons, to that extravagant behaviour of her husband. She therefore consulted Drigpal Singh (who was related to the family and was a well-wisher), and also her brothers-in-law, about securing a partition between her husband and two sons. The object was to save some of the joint family property from liability to satisfy the debts of Nidhan Singh and to safeguard the interests of her son3 and of herself.

Drigpal Singh, she affirmed, advised a partition and told her he would get her a maintenance allowance of Rs.75 per month set apart for her in the partition deed. Five arbitrators, including the three brothers of Nidhan Singh, made a partition award, dated January 8, 1921. By it, Nidhan Singh was allotted the two villages mentioned above, and the shares of the two minor sons were separated from the share of Nidhan Singh. The relevant part of the award, the construction and the legal effect of which were involved in this appeal, was in the following terms —

" We allot the property mentioned in List A specified " below, to Kunwar Nidhan Singh, which shall remain in his " possession subject to a charge for maintenance of Mst. Sarla " Devi [the respondent] ; and if she ever falls out with " Kunwar Nidhan Singh and they cease to live together, the " charge for maintenance thereon will be at the rate of " Rs.75 a month, the amount fixed by Rs." On the following day, January 9, 1921, Nidhan Singh borrowed Rs.40,000 from Drigpal Singh, on the security of the said two villages, and executed a usufructuary mortgage deed, in which the property was expressed to be free from all liabilities, and the arbitration award was expressly mentioned. in August 5, 1921, Nidhan Singh sold the mortgaged villages to Drigpal Singh for Rs.30,000. In or about 1923, the court appointed the respondent the guardian of her minor sons. About 1925, Drigpal Singh died, leaving him surviving his third wife, the appelant. About 1928, Nidhan Singh died, leaving him surviving a widow, the respondent, and two sons. On January 9, 1933, the respondent filed the present suit in the Court of the Additional Subordinate Judge of Etah against the appellant. In her plaint, after setting out the facts stated above, she allege