Judgement

Appeal (No. 86 of 1926) from a decree of the High Court (February 16, 1925) affirming a decree of the District Judge of Darbhanga.

The suit was instituted by the appellants in 1918 against the respondents to recover certain immovable property. By a document executed in 1876, the terms of which fully appear from the present judgment, the appellants father, a Mithila Brahmin, had purported to make a hiba-bil-ewaz of the property with all zamindari rights to the appellants mother on receiving from her Rs.41,532. In 1890 the appellants father and mother had jointly mortgaged the property to the then Maharaja of Darbhanga to secure Rs. 1,88,963 and interest due under a bond. A decree for sale having been made on the mortgage in 1897, the Maharaja, with the leave of the Court, purchased the property ; a decree confirming the sale was affirmed by the High Court. The appellants mother, Anuragin Bahuasin, died in 1904.

By their plaint the appellants alleged that their mother became owner under the hiba-bil-ewaz of 1876, and that she had been induced to execute the mortgage by the undue influence and misrepresentation of her husband. The respondent by his written statement pleaded that the Bahuasin was merely a benamidar for her husband and that the mortgage and sale were binding. He pleaded further that the suit was barred by limitation and under s. 47 of the Code of Civil Procedure, but it became unnecessary to deal with those pleas in the present appeal.

The District Judge, to whom the suit was remanded for trial, held that the hiba-bil-ewaz was not a benami transaction, though it had not been proved that the money paid was the Bahuasins own money He was of opinion that under the terms of the document she took an absolute estate with power to alienate, and that if she had not that power, her husbands consent validated the alienation.

On appeal to the High Court the learned judges were both of opinion that the hiba-bil-ewaz was not a benami transaction, but differed as to its effect. Das J. discussed the Mithila law at length and held that the property became I the saudayica stridhan of the Bahuasin, and that she was not entitled to dispose of it to the prejudice of her heirs, who were admittedly the plaintiffs. He was further of opinion that the disposition could not be validated by her husbands consent. He saw no reason to doubt that the money was paid by the Bahuasin, but considered that having regard to the value of the property, which brought in over Rs.30,000 per annum, the transaction was substantially a gift. Fawcett J. held that having regard to the terms of the document the Bahuasin took an absolute interest with power to alienate. He did not differ from the view that the money was in fact paid by the Bahuasin and lie considered the use of the form of a hiba-bil-ewaz indicated that it was intended that the incidents of a sale should attach,

In consequence of the difference of opinion the appeal was referred under s. 98 of the Code of Civil Procedure to Miller C.J. The learned Chief Justice agreed with the view of Fawcett J. that having regard to the terms of the document and decisions of the Privy Council, an absolute and alienable estate was transferred.

1928. Jan. 24, 25, 26. Sir George Lowndes K.C. and G. D. McNair for the appellants. The parties to the transaction of 1876 were governed by the Mithila law under which the power of a wife over immovable property given to her by her husband is more restricted than under the Mitakshara. The Vivada Chintamani and the Ratnakara—which are of the highest authority in the Mithila school Bhugwandeen Doobey v. Myna Baee (( 1867) 11 Moo. I. A. 487, 508.)—show that the wife takes such property as her saudayica stridhan, and that she has no power of alienation unless it is expressly given at the time of the gift. The document of 1876 should be construed with reference to the Mithila law, and in the light of the law as it was regarded at that date Mahomed Shumsool v.. Shewukra