JUDGMENT
Kemball, J.
1. Two points a rise in this case as it now presents it self before us first as to the validity of the assignment of the property in dispute by Padshah Begam to Mir Ruhulla which it was for the plaintiff to establish, and, second, (assuming that the property had validly passed to Mir Ruhulla) as to the mala fides of the quasi consent decree obtained by Bomanji, the husband of the plaintiff, against Mir Ruhulla, the burden of proof being on the defendant.
2. The first question turns on whether the document just referred to was a deed of gift or a will, for it was conceded in the Court below and admitted here (on the authority of a case recently decided in this Court) thai if it was a deed of gift, then plaintiff’s case must of necessity fail. The District Judge has found that the document was a deed of gift, and “as such admittedly was invalid”, but he refused to apply the general rule to the case, as defendant had no right to the property in dispute, save what he derived from Mr. Ruhulla, whose right depended on the said document, and he went on to consider the second question which he found in favour of defendant and against the plaintiff. But we are unable to concur with the Judge that, as between the parties, he was bound to hold the document in question to be valid. The attachment having been raised at the instance of the defendant) and-the defendant being, as the Judge has found, in possession of the property, it was for the plaintiff to establish her right to attach and sell the property, and she could only do so by affirmatively proving that there had been a valid assignment to her judgment-debtor, Mir Ruhulla, whatever might be the rights of defendant.
3. As to the validity of the document it is contended on behalf of the plaintiff, appellant, that even if it be a deed of gift as regards the rest of the property, still as to this particular property or “matruka,” it was a will, the assignment under paragraph 4 being clearly intended, if such property had not been reduced into possession during her life-time, to take effect after her death. We agree, however, with the District Judge in thinking that the deed in question was a deed of gift, the obvious intention of Padshah Begam when executing it having been to make Mir Ruhulla presently absolute owner of all her property which she then had or might there after have in possession and we also think that, if paragraph 4 of the said deed, which, looking at its wording, Can not be taken as evidencing in any sense of the term a bequest, is to be regarded as a declaration of Mir Ruhulla’s title to this portion of her property, such a declaration had no validity as to the creation of a proprietary right after her death–see Case 54, p. 125, Macnaghten’s Principles and Precedents of Mahomedan Law, which is on all fours with the present;. We have been referred to Case II at p. 242 of the same work, but the intent and meaning of the declaration there were wholly different to those of the declaration in this case. Two cases–Mahomed Altaf Ali Khan v. Ahmed Buksh and others 25 Calc. W.R. 121. P.C. and Prince Suleman Kadr v. Darab Ali Khan L.R. 8 Ind. Ap. 117–were also cited to us, but in them the disposition of the property in dispute was clearly intended to have effect only after the death of the owner.
4. In this view of the case it is unnecessary to determine whether the defendant has succeeded in establishing clearly the fraud and collusion between the plaintiff’s husband and Mir Ruhulla in the matter of the decree obtained against the latter, but as the District Judge has discussed and decided on the evidence on this point, and the matter has been argued at length here, we think it necessary to observe, having regard to the circumstances, set forth in full in the lower Court’s judgment, and to the fact, not noticed therein, that Bomanji kept no accounts or record of-his money dealings, though the mortgage to him was avowedly in respect of previous money dealings, that it is to our mind difficult to separate the mortgage transaction which the Judge says is not shown to have been fraudulently executed from the decree which he was clearly of opinion had been obtained by fraud and collusion between Bomanji and Mir Ruhulla for the purpose of defeating the claim of Ratilal. Mir Ruhulla himself says that the deed of sale’ to Ratilal was before the mortgage to Bomanji, and though the Judge refuses to believe Mir Ruhulla on this point, it is not clear why Bomanji and Mir Ruhulla should try to give to a transaction, which was fair and above board, the corroboration of a sham decree. With these remarks we confirm the decree of the lower Court with costs.
