Sir Binod Mitter.-

This is an appeal from a decree of the Chief Court of Oudh, dated 11th February 1927, which varied a decree of the Subordinate Judge of Mohanlal Ganj, Lucknow, dated 31st May 1926, and decreed in part the plaintiff's suit with costs.

The appellant, on 4th November 1921, instituted a suit against Haji Siddique Hasan (hereinafter referred to as defendant 2) to which suit plaintiff-respondent 1 (who is the wife of defendant 2) was not a party, for the recovery of money partly as damages for breach of contract and partly by way of recovery of advances made to defendant 2 for the purchase of goods as commission agent. This suit was decreed for a sum a little over Rs. 24,000 on 25th February 1924, but on appeal was reduced by about Rs. 4,000.

After the appellant had obtained his decree in the first Court and whilst an appeal was pending, the appellant, as decree-holder, attached plots 44, 44a, 45 and 46 situated on the New Sanitary Road, Lucknow, with buildings thereon, in execution of his decree, alleging that the same belonged to defendant 2. The present plaintiff (his wife) claimed under O. 21, R. 58, Civil PC, that these plots were not liable to attachment as a portion of plot 45 and the whole plot 46 was wakf property, and the remaining portion, i. e., a portion of plots 45 and 44, had been transferred to her in lieu of her claim for dower. Her claim was dismissed under the provisions of O. 21, R. 61, Civil PC, on 26th January 1925, on the ground that the wakf deed and the deed of gift were merely fictitious documents created with a fraudulent intention and that defendant 2 and not the plaintiff was in possession of the said plots with the buildings thereon.

Plaintiff thereupon instituted the suit out of which this appeal arises on 12th February 1925, against the defendant for a declaration that the deed of wakf and deed of gift dated 19th November 1916, and 30th June 1917, respectively, are valid and that the said premises were not liable to attachment and sale.

The learned Subordinate Judge came to the conclusion that the wakf and the deed of gift did not represent genuine transactions, that there never was a bona fide intention on the part of defendant 2 to make the wakf and the gift, and that the same were never given effect to. He further held that these documents were executed to defeat any claim which the appellant might make against defendant 2, and that the plaintiff was not entitled to the relief she claimed in the suit.

The learned Judges on appeal in the Chief Court reversed that judgment and hence this appeal.

Defendant 2 was a tahsildar of the appellant on a small salary until the year 1912, when he went on a pilgrimage to Mecca, and after his return from the pilgrimage he was employed by the appellant till 1921 as a commission agent to purchase grain and other articles for the appellant's estate and was paid remuneration at the rate, of one anna in the rupee on the price of the commodities purchased and also his expenses. In the course of his employment as commission agent large sums of money from time to time were advanced by the appellant to him for the purchase of goods and these sums and the amounts due to him for goods supplied were entered in the account books of the appellant's estate, but he had control over a portion of such sums and could draw upon the same.

In March 1913 defendant 2 purchased the said plots 45 and 46 which adjoined a ruined mosque. After his purchase, with the sanction of the municipality, he erected buildings on a portion of plot 45 and on plot 46 at a cost of about Rs. 15,000, and also erected a new mosque, which he alleged cost him Rs. 2,000, and thereafter on 12th August 1915, he informed the secretary of the Municipal Board of Lucknow that he had transferred the said premises to his wife, i. e., the plaintiff, and requested the secretary to put the plots in her name in place of his own in the office records. The secretary gave effect to this request on 2nd October 1915.