TMI Blog1930 (7) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Order 21, Rule 58, Civil P. C, 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 Order 21, Rule 61, Civil P.C. 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. 4. 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. 5. The learned Subordinate Judge came to the conclusion that the wakf and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correctness of her allegations in the application. In pursuance of her request a formal registered deed of transfer was duly executed in favour of defendant 2 as the absolute owner on 14th May 1921. 11. Plot 44 was originally purchased in March 1913, by one Baqar Husain, who, by an application dated 9th April 1913, to the Municipal Board, had this plot transferred to his brothers Haidar Husain and Ahmad Beg. They executed a registered sale deed of this plot in favour of defendant 2, but no conveyance was ever executed by the Municipal Board with reference to the plot. He obtained sanction from the Municipal Board to build on this plot. 12. Under Order 21, Rule 63, the decision in the said claim proceedings was final subject to the result of this suit which the plaintiff instituted for a declaration that the deeds are valid and that the said properties are not liable to be attached in execution of the decree of the appellant. In their Lordships' opinion she is not entitled to this declaration unless she establishes to their satisfaction that the deeds in question were bona fide and were intended by defendant 2 to pass the beneficial interest in the premises in favour of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts were sold has been called to corroborate this story. Their Lordships are unable to accept the evidence as to the way in which the ornaments were sold and the sale proceeds realized and spent in erecting the structures under the supervision of her son-in-law Mukhtar Mahommad. This witness was examined before the trial Judge who disbelieved his evidence. Their Lordships are also of opinion that this witness is untrustworthy, and they do not believe the story that the structures were erected on the vacant portion of the property given to her out of the proceeds of the sale of her jewellery. A portion of plot No. 45 forms the subject matter of the gift, and it is a noteworthy fact that on 20th April 1920 she alleged that she herself had purchased plots Nos. 45 and 46 for Rs. 735, for which she alleged that she held a receipt. No such receipt has been exhibited in this case. In the conveyance of plots Nos. 45 and 46, executed on 14th May 1921 it is also stated that she herself had originally purchased the said premises, and it is difficult to see why, if plot No. 45 had been purchased by her, a gift of it should or could have been made to her by her husband in 1917. 18. By 1917 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me to his wife and requested that her name be substituted for his in the office records. This request was acceded to on 2nd October 1915. He had however executed no document in her favour. His explanation is that he had fallen ill and had made an oral will in her favour. Their Lordships agree with the trial Judge that this story of the oral will is untrue. It is noteworthy that the letter of 12th August 1915 does not in any way indicate how the transfer had bean made, but in 1916 he executed the wakfnama, treating the property as his own. 23. In 1920 the following application was made to the Municipal Board: The Secretary, Municipal Board, Lucknow. Sir, With compliments, I purchased plots 45 and 46 situate on the Ganga. Prasad Road, when the road was being opened, from the Municipal Board, for Rs. 735, for which I hold receipt. But formally no sale deed was executed; therefore through this application I inform you that a sale deed in respect of the plots mentioned above be got executed in favour of my husband, Molvi Mohammad Siddique Hasan Saheb. Whatever costs may be incurred shall be accepted by me. The said Molvi Saheb also agrees to this transfer, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. According to his own admission he was only earning Rs. 100 or Rs. 125 per mensem from the commission agency business, and his personal expenses and those of his wife came to under Rs. 75 per mensem. He was not able to give any explanation worthy of serious consideration as to how he found the money spent in erecting the building. 29. It is, however, strenuously urged before their Lordships by plaintiff's counsel that the advocate for the appellant admitted in the trial Court that the money of the appellant over which he had control as a commission agent was never misappropriated by defendant 2, and therefore it is not open to the appellant to make any suggestion that he utilized any portion of such money for the purpose of the construction of any of the buildings. The actual statement of the appellant's advocate in the trial Court is as follows: It is not defendant 1's case that the deeds of gift and wakf were executed fraudulently by reason of misappropriation of the estate money made by defendant 2 during the years in which the said deeds were executed. Our case is that defendant 2 used to handle large sums of money belonging to the estate-money which came i ..... 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