JUDGMENT Henry Richards, C.J.
1. The suit out of which this appeal arises was the outcome of another suit which was brought as far back as the year 1896. This last-mentioned suit was a suit to realise the amount of a mortgage by sale of mortgaged property including the property now in dispute. On the 26th of March 1896 a decree was passed in favour of one Rai Bahadur Babu Durga Prasad for the sum of Rs. 85,665. The present plaintiffs are the sons of the said Babu Durga Prasad. In execution of the above-mentioned decree the property (the subject-matter of the present suit) was put up for sale and purchased in the names of Musammat Bigga Begam and a man named Ahsan Ali. The sale took place on the 20th of July 1898, and the sale certificate is dated the 12th of August 1899. On the 20th of December 1899 Ahsan Ali executed a deed in which he admitted that the entire purchase-money of the property mentioned in the plaint in the present suit, as also the purchase-money of an indigo factory which was sold at the same time, was altogether provided by the Musammat and that he had not and never had any interest in the property sold. Musammat Bigga Begam was the wife of one Hakim Muhammad Wilayat Ali Khan, the person against whom the mortgage-decree was passed. The said Ahsan Ali was a nephew of the said Wilayat Ali Khan. It may be noted here that in the deed to which I have just referred, Ahsan Ali Khan does not purport to relinquish any rights. The statement in the deed is that he has not and never had any right or interest." The purchase-money of this property now in dispute was Rs. 10,075. The price of the indigo factory was Rs. 1,810. The mortgaged property having proved insufficient to satisfy the mortgage-decree a further decree was obtained under Section 90 of the Transfer of property Act on the 1st of December 1906. The result of this last-mentioned decree was that the decree-holder was entitled to realise the balance still remaining due on foot of the decree from any other property which belonged to the. judgment-debtor. Various applications were made for execution, with the result that a large additional sum was realised. Finally after the death of Musammat Bigga Begam the decree-holders attempted to attach the property now in dispute. In the first place, they alleged that the property had been inherited by Wilayat Ali Khan from his widow Bigga Begam. The application to sell this property was refused. The result was the institution of the present suit. The plaintiffs' claim now is that the property was all along the property of Wilayat Ali Khan, in the alternative they contend that even if the property belonged to the Musammat, it was inherited by Wilayat Ali Khan and is, therefore, liable to satisfy the balance of the decree still remaining due. The defence is that the property. was purchased by the Musammat with her own money and that prior to her death she disposed of the same by Will, that her heirs accepted the Will and that Wilayat Ali Khan never had any interest in the property from the date of its sale in 1898. I may here point out that even if the purchase in 1898 was really a purchase by Wilayat Ali Khan in the names of his wife and nephew, it ceased to be liable to the mortgage. The property can now only be sold by virtue of the personal decree under Section 90.
2. The question for decision is whether the property' belonged to Wilayat Ali Khan or his wife Bigga Begam. This question, it seems to me, must depend upon the answer to another question, namely, with whose money was the property purchased. See Dhurm Das Pandey v. Shama Soondri Dibiah 3 M.I.A. 229 : 6 W.R. (P.C.) 43 : 1 Suth P.C.J. 147 : 1 Sar. P.C.J. 271 : 18 E.R. 484 and the recent case of Bilas Kunwar v. Desraj Ranjit Singh 30 Ind. Cas. 299 : 13 A.L.J. 991 : 19 C.W.N. 1207 : 29 M.L.J. 335 : 2 L.W. 830 : 18 M.L.T. 248 : 17 Bom. L.R. 1006 : 37 A. 557. I may mention here that while there was nothing to prevent Wilayat Ali Khan making his wife a present of the property, there is no evidence that he did so and this is not the case for the defendants. Their case is that the money belonged to the lady. On the 18th of July 1898 Hakim Muhammad Wilayat Ali Khan mortgaged certain property to secure the sum of Rs. 6,000, the mortgage being in favour of Gobardhan Das. According to the registration endorsement Rs. 5,000 was paid in cash and a rukka for Rs. 800 was returned. The consideration appears to have been Rs. 5,045 and the discharge of the rukka for Rs. 800 principal and Rs. 155 interest. On the 19th of July 1898 Hakim Muhammad Wilayat Ali Khan made another mortgage to secure Rs. 6,000. This was made in favour of Gauri Sahai, father of the mortgagee in the other mortgage. The plaintiffs contend that the raising of this sum of Rs. 11,000 odd in cash two days before the property in dispute was put up for sale is very significant and strong evidence that Wilayat Ali Khan was raising the money to buy in the property that was being sold on foot of the mortgage-decree. It seems to me that there is great force in this contention, unless the defendants can satisfactorily show that the money was raised for some other purpose. No books or documentary evidence are produced to show to what purpose this Rs. 11,900 odd was applied. But a witness of the name of Jaffer Khan is produced, who says that he used to have dealings with Wilayat Ali Khan who borrowed from him on one occasion Rs. 4,900 under a note of hand, that "God knows what difficulty he had to encounter in making Wilayat Ali Khan pay up the Rs. 4,900", that Wilayat Ali Khan about 14 years ago borrowed money from Gauri Sahai and his sons and paid him. In cross-examination he had to admit that the money which he advanced to Wilayat Ali Khan was not entered in his accounts. He admits that there are other entries relating to his business transactions with Wilayat Ali Khan in his account books. He says that this sum was not entered because the amount had been advanced from his house and not from his shop. I absolutely disbelieve this witness. It seems to me most improbable that Wilayat Ali Khan when he must have wanted money and when his property was being sold, would have paid off the debt of Jaffer Khan even if such debt existed. Jaffer Khan had not even a decree against him. I think, however, one has only to read the evidence Jaffer Khan to come to the conclusion 11 at there was no debt at all. In my opinion the purpose to which the money borrowed in 1898 by Wilayat Ali Khan was applied would appear from entries in his account books if they were produced.
3. The next point to consider is the probability of Bigga Begam being possessed of money to make the purchase. Ahsan Ali whose name was joined with herself in the purchase says that the whole amount belonged to the lady, that she gave him Rs. 14,000 one day before the auction sale, that he went there to make the purchase on behalf of Bigga Begam. He states that before the purchase she and he were partners in a sugar factory and that the purchase was made in pursuance of an agreement between Bigga Begam and him that they should purchase the "village share and share alike and that he would pay his share of the price in two or four years out of the income accruing from the sugar factory. In cross-examination he had to admit that he had no accounts of the profits and loss of the sugar factory. He made some vague statements that the Musammat had considerable means. He said that the father-in-law of Bigga Begam (that is, the father of Wilayat Ali Khan) used to allow her Rs. 200 or Rs. 250 per mensem and that after his death Wilayat Ali Khan made her a similar allowance. He admitted that the father of the lady had no zemindari, nor had the lady. He admitted that Wilayat Husain was the own brother of Bigga Begam and that the profit of' his business (whatever it was) was not even assessable with income tax. His sons were cultivators and plied three or four shahs on hire. It seems to me from a perusal of this witness' evidence that the father of Bigga Begam was a man of no property and that he was unable to give money to his son and still less to his daughter Bigga Begam. Furthermore, I think that if the lady really had property and was in a position to produce Rs. 14,000 in a lump sum the day before the auction sale, accounts would be forthcoming. The case for the plaintiffs may be summoned up as follows:
(1) The sale was admittedly fictitious to this extent that Afiasan Ali was joined in the purchase and he admitted by a deed that he never had any interest whatever therein;
(2) That the borrowing of the Rs. 12,000 two days before the sale unexplained proves that the money was the money of Wilayat Ali Khan:
(3) That not only is it not shown that the money belonged to the Musammat, but the evidence shows that she was a woman of no private means.
4. The defendants, on the other hand, contend that the onus of showing that the money belonged to Wilayat Ali Khan lay on the plaintiffs and that they have not discharged the onus. It appears that after the death of the Musammat, Wilayat Ali Khan and the other heirs accepted in writing an alleged Will made by the Musammat in favour of Hakim Mahbub Ali Khan Mr. O'Conor on behalf of the respondents strongly relied on this fact. He contends that Wilayat Ali Khan by accepting the Will admitted that the property belonged to his wife. I think the force of this argument entirely depends on the state of Wilayat Ali Khan's financial position at the time he made the so-called admission. If he was in financial difficulties, it might be much more to his interest to allow the property to come to his nephew than to claim it for himself. Furthermore, it appears that these admissions were made after the decree-holders had made a move to make this very property available for the satisfaction of the balance due on foot of the decree. An injunction had issued at the instance of the decree-holders restraining Wilayat Ali from dealing with the property.
5. Mr. O'Conor further relied on the fact that the decree-holders had never challenged the title of Musammat Bigga Begam between the years 1898 and 1908. He contends that this fact shows that the decree-holders themselves considered that the property really was the property of the Musammat, otherwise they would have attached it long ago. I am not much impressed with this argument. Up to the year 1906 when the decree under Section 90 was obtained, only the mortgaged property could be made available for the satisfaction of the mortgage-decree and it was of no consequence whether the property belonged to the husband or wife. It was only when the mortgage security was exhausted that the decree under Section 90 was or could be obtained. It is an admitted fact that after the decree under Section 90 was obtained in the year 1906, the decree-holders succeeded in realising a very large sum out of property admittedly belonging to Wilayat Ali Khan other than the mortgaged property. It is, therefore, not surprising that no move was made against this property until the year 1998 or 1909. The learned Subordinate Judge decided in favour of the defendants. He says in his judgment: "It was argued on behalf of the plaintiffs that Bigga Begam was not rich enough to pay for the property. But from the evidence of Muhammad Ahsan, Hamid Ali Khan and Ashraf Ali Khan, witnesses examined by the defendant, it appears that she was a rich lady. These witnesses have stated that she was in receipt of a sum of Rs. 200 a month from her father-in-law from the date of her marriage and from her husband from the date of his father's death. Muhammad Ahsan witness has stated that Bigga Begam and he were partners in a Ichandsal concern. The witnesses Gobardhan Das and Ramji Mal could not state if Bigga Begam had any money of her own. They did not know her father and brothers. Ramji Mal no doubt adds that he infers that her father must have been an ordinary man from the fact that her nephews ply ehhas now-a-days. But there is nothing extraordinary about a rich man's heirs to be placed in that position but to judge of their predecessor from their present state of wealth is a far-fetched conclusion. Such being the evidence of the plaintiffs' witnesses, the testimony of the defendant's witnesses on this point must be believed." It seems to me that the learned Judge has not fully appreciated the force of the evidence. He disbelieves perhaps with some reason the evidence of Gobardhan Das and Ramji Mai that when Wilayat Ali Khan was executing the two mortgages for Rs. 6,000 each, he openly stated that the money was being raised for the very purpose of purchasing the property. It is suggested that if a secret purchase was being made for the debtor, he would not speak about it. It must be remembered, however, that at that time Wilayat Ali Khan had still a large amount of property, the amount of the decree had not swelled to the extent it subsequently did by the accumulation of interest and it may well have been then hoped that the decree would be discharged. But even if we discard the oral evidence, the fact still remains that Wilayat Ali Khan raised Rs. 11,000 odd at the very time the property was being sold and that no satisfactory account is given as to how this money was applied. On the contrary the account that is given cannot be believed. The learned Judge says from the evidence of Mohammad Ahsan, Hamid Ali Khan and Ashraf Ali Khan it appears that the Musammat was a rich lady. I have already dealt with the evidence of Muhammad Ahsan It is true that all these three witnesses make a vague statement that the lady was rich and that her father was a rich man but it is not shown that they had any personal knowledge of these matters, and it appears from the cross-examination of the witnesses that her father was not a rich man. There is not a particle of evidence that the lady got property from her father during his life-time or at his death. The witnesses say that she got an allowance of Rs. 200 a month from her father-in-law and afterwards from her husband, but this allowance would not make the lady a "rich" lady and it is not shown how these witnesses came to know that she received an allowance of Rs. 200 a month. If the lady was a rich lady it is certain that she would have had account books. It seems to me that the learned Judge has overlooked the significance of the admitted fact that Rs. 11 000 odd was raised on the very eve of the sale and that he has come to the conclusion that she was a rich woman on evidence not worthy of the name. I am quite satisfied on the evidence that the money which purchased , the property belonged to Wilayat Ali Khan t and not to his wife. If this view be correct it is quite unnecessary to consider whether Wilayat Ali Khan could assent to the Will of his wife and so defeat his creditors. I think the Court below had a certain amount of sympathy, perhaps not unnatural, with the defendants on the ground that the decree holders have realised a very large sum on foot of their decree. We are bound, however to throw aside any feeling of this kind and to decide the case on the evidence before f us. I would allow the appeal.
Rafique, J.
6. I concur.
7. The order of the Court is that the appeal prevails and is allowed no The decree of the lower Court is set aside and the claim of the plaintiffs-appellants is decreed, with costs of both the Courts including fees in this Court on the higher scale.