Bibhuti Bhusan Banerjee vs Usha Charan Banerjee

Arun Kumar Mitra, J.—These three Second Appeals arise out of three title suits namely T.S. No. 298 of 1966 and M.S.. No. 89 of 1966 (correspondingly T.A. No. 791 of 1974/S.A. No. 466), M.S. 89 of 1966 (correspondingly T.A. No. 140 of T974/S.A. No. 468), T:S. No. 507 of. 1966 (correspondingly T.A. No. 790 of 1974/S.A. No. 46.7 of 1976).

T.S. No. 298 of 1966 was filed by Bibhuti Bhusan Banerjee against Ambika Banerjee. M.S. No. 89 of 1966 has been filed for recovery of mesne profit from June 7, 1966 to November 23, 1966 filed by Bibhuti Bhusan Banerjee against Ambika Banerjee. T.S. No. 507 of 1966 filed by Ambika Banerjee against Bibhuti Bhusan Banerjee for declaration that the Plaintiff is the owner in respect of 16 annas of the suit premises and the Nadabi Patras dated June T4, 1960 are mere paper transactions and 50 such documents and Bibhuti and his . wife are mere name lenders and also praying for injunction,

The case as has been made out in the plaint of Title Suit No. 298 of 1966 is inter alia as follows:

Bibhuti Bhusan Banerjee and his wife purchased the suit property on the basis of the separate title deeds dated August 27, 1997 from one Sailendra Nath Sanyal at a valuable consideration of Rs. 16,000/- (Rs. 9,500/- and Rs. 6,500/-) arid Ambika quited the possession on execution of two deeds of disclaimer in favour of the former on June 15, 1960. Ambika, a bachelor being in financial distress wanted a shelter under Bibhuti at the premises No. 26, Rani Branch Road, Calcutta 02 in a room. He was granted accommodation and subsequently on the plea of marriage of his nephew Ambika obtained temporary licence for three rooms in the 1st floor and the mezanine room in the said premises. With a view to help Ambika his service was requisitioned by Bibhuti as a Rent Collector but Ambika betrayed the trust reposed on him and failed to account for receipts of rent. Besides Ambika lost the confidence of Bibhuti also on his refusal to vacate the suit premises after the marriage of his nephew. Accordingly, Ambika''s licence was revoked by a notice w.e.f. July 16, 1966. As Ambika failed to vacate the said premises, Title Suit No. 298 of 66 was instituted, for eviction of Ambika from the suit premises and Money Suit No. 89/66 was filed for recovery of mesne profits from June 17, 1966 to November 23, 1966.

Ambika''s case is. that on or about August 28, 1991 he took lease of the vacant land at 26, Rani Branch Road from Sailendra Nath Sanyal for a period of 20 years with an option of renewal for a further period of 5 years at a rental of Rs. 44/- per month in the benami of- his trusted friend Sri Harinarayan Dey, on the basis of a registered deed of lease.

As per the terms of the lease the lessee had the right to construct structure at the: leasehold; land and accordingly Ambika got plan sanctioned in the benami of Harinarayan Dey and subsequently Ambika raised a two storeyed building and a shed in the year 1954 by his own money. Ambika used to occupy a portion of the said building after letting, out the remaining portion to the tenants and machineries of the printing works were kept in the shed. Ambika had a printing press under the name and style Nistari Printing Works and from October, 1949 he became a government contractor. As a result the Government of India from time to time supplied various paper blocs for printing and binding and those were stored in the different godowns. On or about August 22, 1952 one of the godowns was destroyed by'' fire and thereafter the Union Government filed a suit in the High Court at Calcutta against Ambika for realisation" of Rs. 4,99,475-6-6 being the price of goods delivered to him. Ambika contested the claim by filing a written statement and in turn he brought a cross suit against the Government for realisation of Rs. 3,16,842-10-9 being the amount due on different bills submitted by Ambika." Both the suits were hotly contested and those are still pending. Thereafter Ambika closed down his business and removed all his printing machinaries and accessories from the shed of the suit property. Then Ambika wanted to purchase the leasehold land in the suit premises from Sailendra Nath Sanyal and on November 2, 1954 the price was finally settled at Rs. 16,000/- and on that very date Ambika made over a complete set of Printing Press machinary valued at Rs. 9,000/- to Sailendra Nath Sanyal in part payment of the said price. Out of the balance of Rs. 7,000/-Rs. 1,000/- was paid in cash and the vendor agreed to take the balance of Rs. 6,000/- by instalment and as such a formal agreement was simultaneously executed in the name of Ambika or his nominee on receiving the consideration. On July 15, 1966 Ambika paid Rs. 1,000/-and on July 16, 1966 he paid the balance of Rs. 5,000/-to Sri Sanyal and thus on payment of entire consideration amount Ambika became the full owner of the land measuring 5 1/2 kottah and Ambika was the owner of the structures thereon and in fact he became the full owner of the entire premises at 26, Rani Branch Road, Calcutta.

Ambika further stated that he had his ancestral dwelling house at 102, Jatindra Mohan Avenue, Calcutta and being fade up with constant quarrel there he left the said house to the new constructed building in the suit premises. After coming to 26, Rani Branch Road, Ambika-developed affection for his friend who was a friend from his boyhood, Bibhuti Banerjee and his wife Ivy Lata. The intimacy depend to such an extent that Bibhuti and his wife became the friends, philosophers and guides of Ambika who in his turn kept with them all the valuable documents for safe custody with much trust. Looking at the facts that entire price of the suit land was fully paid up by Ambika, Bibhuti and his wife have repeatedly urged him to have a sale deed registered by Sailendra Nath Sanyal but as it was not advisable to take the sale deed in the name of Ambika, two sale deeds were executed in the name of Bibhuti and his wife at their suggestion. Thus Bibhuti and his wife were mere name lenders in the said deeds of sale executed by Sailendra Nath Sanyal and absolutely untrue statements were made in the said deeds only with a view to give it a look of real transaction. Bibhuti and his wife were all along aware of the real state of things and even after the creation of the said benami deeds Ambika remained in absolute possession of the suit property. Subsequently, in the year 1960 Bibhuti and his wife led Ambika to be believe that in order to put up the show of a real transfer it was further necessary or Ambika to execute two more documents in the shape of Nadabi Patras in favour of them and being mislead Ambika executed two separate ''Nadabi'' in favour of Bibhuti and his wife making false and distorted statement of facts therein. In April 1966 Ambika with his brother Sri Usha Charan Banerjee with his family came to live there to perform the marriage ceremony of the eldest son. After the marriage of Usha Charan Banerjee''s son Ambika fell ill and his left side got paralysed partially due to an attack of blood pressure and at that time Usha Charan and his family members nursed Ambika and looking at this Bibhuti and his wife became irritated and they requested Ambika to part with the company of the brother and his family. As no heed was paid to their requests Bibhuti and his wife were displeased and they picked up quarrels with Usha Charan and the members of his family. Being suspicious about the attitude of Bibhuti and his wife, Ambika was disillusioned and asked them to hand over all the papers and documents that were lying with them and also wanted accounts of the money that was being handled by Bibhuti. Then Bibhuti through his lawyer gave a notice upon Ambika asking him to vacate his suit premises on the false allegations that Ambika was a mere licensee. A reply was sent to Bibhuti on behalf of Ambika denying all the allegations. Thereafter Bibhuti instituted the above suits for eviction and mesne profit with false allegations. Thus, Ambika''s title in the suit property having been clouded, he instituted the Title Suit No. 560 of 1966 praying for declaration that he is 16 annas owner in respect of the suit property, that Bibhuti and his wife are mere name lenders and have acquired to interest in the suit property by virtue of the alleged sale deeds- and Nadabi Patras, that the Nadabi Patras are mere paper transactions and fictitious documents, and also for delivery of those documents in the Court for cancellation and also for permanent injunction restraining Bibhuti and his wife from interfering with or disturbing the possession of Ambika in the suit property. Sri Harinarayan Dey and Sailendra Nath Sanyal are also added as proforma Defendants in the said title suit..

During the pendency of this suit Ambika died and his natural heirs were substituted by his brother, Usha Charan Banerjee, in the suits instituted by Bibhuti as well as the Title Suit No. 507 of 66. Usha Charan filed additional written statements in the two suits filed by Bibhuti alleging that he was appointed as the sole executor to the Will of Ambika Charan Banerjee and as such the suits were bad for misjoinder of other heirs of Ambika. However, Usha Charan adopted written statements filed by Ambika in the said two suits. Harinarayan Dey and Sailendra Nath Sanyal filed two separate written statements supporting Ambika''s case in toto. However, they did not contest these suits. On the above facts and the above pleadings the following issues were finalised or recast by the learned trial Judge:

i) Are the suits maintainable in the present form ?

ii) Are the Title Suit No. 298 of 66 and M.S. No. 89 of 66 is bad for misjoinder of parties?

iii) Had Ambika his alleged right title and interest in the suit property as the absolute owner?

iv) Are Bibhuti and Ivy Lata benamdars of Ambika in respect of the. suit property, as alleged?

v) Are the sale deeds and Nadabi Patras in the name of Bibhuti and Ivy Lata were paper transactions and fictitious documents, as alleged ?

vi) Was Ambika a licensee under Bibhuti in respect of the suit property, as alleged ?

vii) Is Ambika entitled to a decree for declaration and injunction, as prayed for ?

viii) Is Bibhuti entitled to a decree for eviction and mesne profits, as prayed for?

ix) To what other reliefs, if any, are the parties entitled ?

The learned trial Judge heard the suits and decreed the Title Suit No. 298 and M.S. 89 of 66 on contest with costs against the Defendant No. 2 and dismissed ex parte without costs against the Defendant Nos. 1&3 and in this way the learned trial Judge granted Bibhuti Bhusan Banerjee a decree for eviction against the Defendant No. 2 in respect of the suit premises described in the schedule to the plaint of T.S. No. 298 of 66. The learned trial Judge gave one month''s time from that date to Usha Charan Barierjee to vacate the suit premises, in default liberty was given to Bibhuti Bhusan Banerjee to recover khas possession on execution of the decree.

The learned trial Judge also granted a decree for Rs. 1272/- in favour of Bibhuti Bhusan Banerjee, being the mesne profits from June "7, 1966 to November 23, 1966 as prayed for in the money suit.

Title Suit No. 507 of 66 was dismissed on contest with costs against the Defendant Nos. 1&2 and ex parte without costs against the rest. This single judgment governed all the three suits.

Appeals were preferred being T.A. No. 791 of 1974 against TVS. No. 298 of 66 which culminated in S.A. No. 466 of 1976 and T.A. No. 140 of 1974 against M.S. No. 890 of 1966 out of which this Second Appeal No. 468 of 76 arose. Those two appeals were preferred by Bibhuti. Ambika preferred appeal being T.A. No. 790 of 1994 against T.S. No. 507 of 1966 out of which S.A. No. 467 of 76 arose.

The said-three appeals were heard together and the learned appellate Court below allowed T.A. No. 790 of 1974, 791 of 1974 and Money Appeal No. 140 of 1974. The Suit Nos. 298 of 66 and M.S. 89 of 66 were dismissed with costs against the Defendant Nos. 1&2 on contest and ex parte without costs against the rest. The Plaintiff''s title to the suit property was declared. It was also declared that the Defendant Nos. 1&2 are mere name lenders of the Plaintiff in respect of the suit property. The learned appellate Court below also declared that the deeds of relinquishment in Schedule-C of the plaint are sham and fictitious documents and the same were cancelled. The Defendants were permanently injuncted from disturbing the possession of the Plaintiff in the suit property. The Defendant Nos. 1&2 were directed to deliver the deeds mentioned in the Schedule B&C of the plaint to the Plaintiff within bne month from the date of the order and the Plaintiff was given liberty to recover the deeds by way of execution in default.

Challenging the said judgment and decree of reversion passed by the learned appellate Court below these three Second Appeals have been preferred. Since the suits were heard analogously and the first appeals were heard analogously, consequently these three appeals were also heard analogously, these are being disposed of by a single judgment.

Before taking up these three appeals for hearing, let me now consider as to what are the substantial questions of law which are to be decided in these three appeals.

Considering the documents, evidence on record and the judgments and decrees passed by the Courts below the following questions are formulated as substantial questions of law for the. purpose of hearing of these three appeals.

Substantial Questions of Law

1) Whether the learned appellate Court below erred in law in misplacing the onus on Bibhuti Bhusan Banerjee to prove the title in spite of directing the Plaintiff in Title Suit No. 507 of 1996 where Ambika Banerjee claimed declaration of title of 16 annas in respect of Premises No. 26 Rani Branch Road, Calcutta?

2) Whether ''Nadabi Patras'' executed by Ambika about three years after the sale were natural or purposeful ? And whereas the Courts below should have considered the aspect as to whether these Nadabi Patras were enforceable in law even assuming that the kobalas were benami ?

3) Whether the lower appellate Court properly construed and/or relied upon various documents for the purpose of deciding the benami character of the suit land?

4) Whether the learned appellate Court below came to a proper finding in-the matter of construction in and over the suit land on proper tests and or proper construction of the kobala executed by Sailendra in respect of the suit land ?

5) Whether the learned appellate Court below properly construed the agreement being'' Exbt.J-(2) in the light of the facts and circumstances of the case ?

6) Whether the learned appellate Court below scrutinised the judgment and decree passed by the learned trial Judge in is proper perspective and with proper reasonings ?

The learned senior counsel Mr. Roychowdhury appearing for the Plaintiff at the outset made submissions regarding the scope of Second Appeal.

The learned Counsel submitted that improper functioning of first appellate Court may give rise to- substantial question of law. Mr. Roychowdhury submitted that the judgment of first appellate Court must display conscious application of mind and record findings supported by reasons on all the issues and contentions.

The learned Counsel further submitted that where a doubt arises a3 to whether the first appellate Court has carried out its functions correctly, such doubt itself may give rise to a substantial question of law.

Mr. Roychowdhury further submitted that the High Court ought to have granted Appellant an opportunity to formulate substantial question of law or done so itself. Mr. Roychowdhury submitted that substantial in context means have substance, essential, real of sound worth, important or considerable and such question need not, however, be one of general importance.

Mr. Roychowdhury then submitted that to be substantial, a question of law must be debatable, one which has not been settled earlier by statute or binding precedent and must have a material bearing on the, outcome of the case.

The learned Counsel submitted that completely new points before the High Court for the first time held would not be a question involved in the case unless it went to the root of the matter.

The learned Counsel further submitted that essential, overall consideration is the need to strike a judicious balance between the duty to do justice at every stage and the pressing necessity to preventing delay in final disposal of a case.

Mr. Roychowdhury in this regard relied on a decision of the Hon''ble Apex Court reported in Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs.,

Mr. Roychowdhury, learned Counsel then relied on a decision of the Hon''ble Apex Court reported in State of Rajasthan Vs. Harphool Singh (Dead) Through His L.Rs.,

The learned Counsel relied on the observations made by the Hon''ble Apex Court in para. 13 of the said judgment which is quoted hereinbelow:

The first appellate Court as well as the High Court ought to have seen that perverse findings not based upon legally acceptable evidence and which are patently contrary to law declared by this Court cannot have any immunity from interference in the hands of the appellate authority. The trial Court has jumped to certain conclusions virtually on no evidence whatsoever in this connection. Such lackadaisical findings based upon mere surmises and conjectures, if allowed to be mechanically approved by the first appellate Court and the second appellate Court also withdrawals into recluse apparently taking umbrage u/s 100 Code of Civil Procedure, the inevitable casualty is-the justice and approval of such rank injustice would only result in gross miscarriage of justice. The learned Counsel Mr. Roychowdhury thereafter relied on another decision reported in Leela Soni and Others Vs. Rajesh Goyal and Others,

The learned Counsel relied on the observations made by the Hon''ble Apex Court in paras. 20, 21 & 22 of the said judgment which are quoted hereinbelow:

There can be no doubt that the jurisdiction of the High Court u/s 100 of the CPC (Code of Civil Procedure) is confined to the framing of substantial questions of law involved in the second appeal and to decide the same. Section 101 CPC provides that no second appeal shall lie except on the grounds mentioned in Section 100 Code of Civil Procedure. Thus it is clear that no second appeal can be entertained by the High Court on questions of fact, much less can it interfere in the findings of fact recorded by the lower appellate court. This, is so, not only when it is possible for the High Court to take a different view of the matter but also when the High Court finds that conclusions on questions of fact recorded by the first appellate court are erroneous (see: Afsar Sheikh v. Soleman Bibi)

It will be apt to refer to Section 103 CPC which enables the High Court, to determine the issues of fact:

Power of High Court to determine issue of fact. In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal

(a) which has not been determined by the lower appellate Court or both by the court of first instance and the lower appellate court, or (b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred . to in Section 100.

The section, noted above, authorities the High Court to determine any issue which is necessary for the .disposal of the second appeal provided the evidence on record is sufficient, in any of the following two situations: (1) when that issue has not been determined both by the trial court as well as the lower appellate court or by the lower appellate court; (2) when both the trial court as well as the appellate court or the lower appellate court have wrongly determined any issue on a substantial question of Saw which can properly be the subject-matter of second appeal u/s 100 CPC (see: Jadu Gopal Chakravarty v. Pannalal Bhowmick).

Mr. Roychowdhury submits that the evidence on record will clearly show as to who is the person who actually supplied money.

Then again arguing on the scope of second appeal Mr. Roychowdhury referred to a decision of the Hon''ble Apex Court reported in Kulwant Kaur and Others Vs. Gurdial Singh Mann (dead) by Lrs. and Others etc., .

Mr. Roychowdhury laid stress on the observations made by the Hon''ble Apex Court in para. 34 of the said decision which is quoted hereinbelow:

Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the CPC (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly arid the judgment should also be categorical as to the issue of perversity vis-a-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below: 103, in any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for .the disposal of the appeal,?

(a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or

(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is. referred to in Section 100.

The requirements stand specified in section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot be termed to be a question of law. We reiterate, however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with.

Mr. Roychowdhury submitted categorically that if findings of fact are based on wrong tests or on assumptions and conjectures, and therefore tainted by perversity High Court would be within its jurisdiction in dealing with them in second appeal.

Mr. Roychowdhury on the same principle relied on another decision of the Hon''ble Apex Court reported in Saraswathi and Another Vs. S. Ganapathy and Another,

Mr. Roychowdhury submitted that the principle laid down in this judgment of the Hon''ble Apex Court is that even if concurrent, findings of fact then also High Court can interfere in a second appeal if the said finding of fact is contrary to evidence on record.

Mr. Roychowdhury thereafter relied on a decision reported in Surendra Kumar Vs. Nathulal and Another, . Relying on the principles laid down in the said judgment of the Hon''ble Apex Court Mr. Roychowdhury submitted that when judgment of the first appellate Court is vitiated by an error of law, the interference of second appellate Court is called for.

Mr. Roychowdhury then on scrutiny of evidence on record submitted that Ambika filed T.S. No. 507 of 1966 against Bibhuti and Ors. praying for declaration that the Plaintiff is the 1.6 annas owner in respect of the suit premises and Nadabi Patras dated June 15, 1960 are mere paper transactions and fictitious documents and Bibhuti and his wife are mere name lenders.

The learned Counsel submitted that it is admitted fact that Sailendra Nath Sanyal executed two registered sale deeds dated September 27, 1997 (Exbts. 5(a) and 5(b)) in favour of Bibhuti and his wife.

Mr. Roychowdhury submitted that the above facts are admitted and Mr. Roychowdhury relied on a decision of the Hon''ble Apex Court reported in A.l.R. 1980 S.C. 727.

The learned Counsel adopting the ratio of the said judgment of the Hon''ble Apex Court submitted that the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money.

Mr. Roychowdhury submits that the evidence on record will clearly show as to who is the person who actually supplied money.

Now on the question of benami Mr. Roychowdhury argued that the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money and in support, of his contention Mr. Roychowdhury relied on a decision of the Hon''ble Apex Court reported in Vim Singh v. Kan Singh A.l.R. 1980 S.C. 727

Mr. Roychowdhury relied on another decision reported in Jaydayal Poddar (Deceased) through L.Rs. and Another Vs. Mst. Bibi Hazra and Others, on the said question of benami transaction.

Referring to the principle laid down in this judgment Mr. Roychowdhury submitted that it is well settled that the burden of proving that a particular sale is benami always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character. Mr. Roychowdhury attacked the judgment of the learned lower appellate Court and submitted that in the instant case the appellate Court below erred in-law in misplacing the onus on the Defendant Bibhuti Bhusan.

On the other score Mr. Roychowdhury submitted that to determine a benami transaction the Courts are usually guided by some principles which may be compiled in the manner as follows:

a) The source from which the purchase money came.

b) Possession of the property after purchase.

c) Motive, if any, for giving the transaction a benami colour.

d) The position of the parties and the relationship, if any between the claimant and the alleged benamdar.

e) The custody of the title deeds after the sale.

f) Conduct of the parties concerned in deciding with the properties after the sale.

Mr. Roychowdhury on the principle of law relied on the decision referred to above Jaydayal Poddar v. Mst. Bibi Hazra (Supra) and Vim Singh v. Kan Singh (Supra).

Mr. Roychowdhury then on scan of the evidence on record submitted in the manner as follows:

(A) The source of Money: (from Exbts.5(a) and 5(b) it appears that Sailendra Nath Sanyal executed the sale deeds dated September 27, 1997 at a consideration of Rs. 16,000/- in favour of Bibhuti and his wife. According to Ambika''s case, Ambika paid- the consideration money to. Sailendra Nath Sanyal by handing over printing machinaries valued at Rs. 9,000/- and cash payment of Rs. 1,000/- on November 20, 1954, Rs. 5,000/- on July 15, 1956 and Rs. 1,000/- on July 26, 1966. In para. 8 of the written statement Bibhuti denied that any sum was ever paid to the Defendant No. 4, Sailendra Nath Sanyal by the Plaintiff. Since Ambika has asserted that the said transaction was a benami transaction the burden of proof rests upon him to prove that he paid the consideration money. There is no corroborative evidence regarding value of printing machinaries.

Mr. Roychowdhury submitted D.W.5 in his evidence stated that there is no receipt of Rs. 9,000/- whereas Exbt. 33 is the receipt of Rs. 5,000/- paid to'' Sailendra (signed by Ambika) for selling printing machinary. O.W.2 in his evidence stated that he knows the signature of Ambikababu. The signature in Exbt. 33 is the signature of Ambika and as such Rs. 9,000/- cannot be taken to be part of consideration.

According to Mr. Roychowdhury, the learned appellate Court below failed to consider the vital evidence Exbt. 33 in its proper perspective and also failed to consider that the Plaintiff has failed to discharge the burden of proof of payment of consideration money.

Then Mr. Roychowdhury printed out that D.W. 1 has stated in his evidence that the recitals in. the impugned two sale deeds were written at the instruction of Ambika. It appears from the recitals in the impugned sale deeds that Bibhui paid the consideration money.

Bibhuti as P.W.4 has stated in his evidence that he paid the consideration money, collecting money from his proprietary firm Small Machinary Manufacturing Company and surrendering the savings certificate in the name of Bibhuti and his wife and taking money from the fixed deposits in the names of Bibhuti''s son and daughter in Great Indian Bank Limited. In support of his contention Bibhuti has filed audited balance sheet for the year 1957 of the Small Machinary Manufacturing Company to show the personal drawing of Bibhuti, Proprietor of the firm (Exbt. 30) and correspondence, with the Post Master regarding. National Savings Certificate in the names of Bibhuti and his wife (Exbts. 15(d) to 15(i)) and certificate from the Great Indian Bank regarding withdrawal on account of minor son and daughter of Bibhuti.

Mr. Roychowdhury submitted that even assuming but not admitting that the Defendant has failed to prove that he paid the consideration money, the Plaintiff cannot get a decree on the ground of failure of the Defendant to prove that he paid the consideration money.

On April 25, 1967 Sailendra Nath Sanyal filed a written statement. In his written statement Sailendra has stated that he received the consideration money from Ambika and executed sale deeds at the instruction of Ambika but Sailendra Nath Sanyal has not deposed in this case and subsequently on August 7, 1969 Sailendra filed a petition praying for withdrawal of allegations made in the written statement. Since the Defendant No. 4 Sailendra Nath Sanyal has not come forward as a witness to substantiate the allegations made in the written statement, his pleadings cannot be construed as substantive evidence.

(B) Possession of the property after purchase?On this score Mr. Roychowdhury submitted that it is admitted fact that Ambika''s heirs have been possessing the first floor of the suit building since April 1966. From Exbts. 7 and 7(a) and the evidence of D.W.2 it appears that Ambika had been possessing the suit property, before the purchase of the same by Bibhuti and his wife. It appears from Exbt. 6 series and 9 that the address of Ambika has been given not the suit property. It is also admitted fact that Bibhuti and his wife have been possessing the suit premises after their .purchase. D.W.5 in his evidence has stated that Bibhutibabu has all along been collecting the rent from the tenants in the suit building and has further stated in the evidence that main electric metre stands in the name of Bibhuti and Bibhuti''s son.

(C) Conduct of the parties concerned in dealing with the property after the sale: Mr. Roychowdhury then pointed out that from Exbts. 10,11,12,14,15(j) to 15(k), 17,18,20 series, 3T series and 32 it appears that after purchase Bibhuti and his wife duly mutated their names in the Calcutta Municipal Corporation, paid taxes, inducted tenants, collected rents from tenants and instituted suit against such tenants and took electric metres in their names. Bibhuti''s conduct after purchase of the suit property is the conduct of the real owner, Except D series, Municipal Occupier Notices no evidence has been filed by Ambika to prove the conduct after purchase of the suit property,

(D) Custody of the title deeds after the sale: The learned senior counsel pointed out that the series of documents were filed by Bibhuti from which it proves that the title deeds after the sale were in the custody of Bibhuti, Plaintiff''s case is that since, Bibhuti and Ambika were close friends from boyhood, Ambika handed over all title deeds in respect of the suit premises to Bibhuti and his wife. Bibhuti as P.W. 4 has stated in his evidence that he got all the documents in respect of the suit premises from the vendor Sailendra Nath Sanyal. Mr. Roychowdhury submits that Ambika did not produce any corroborative evidence to prove as to when Ambika handed over all title deeds and documents in respect of the suit premises to Bibhuti and his wife.

(E) The relationship, if any in between the claimant and the alleged benamdar?It is admitted fact that Bibhuti and Ambika were close friends from their boyhood.

(F) motive, if any for giving the transaction a benami colour?Then Mr. Roychowdhury pointed out that in the instant case there is absence of motive for giving the transaction a benami colour. To prove the said transaction a benami transaction Ambika filed an agreement for sale dated November 2, 1954 (Exbt.[J-1]) which was executed by Sailendra Nath Sanyal in favour of Ambika. From Exbt.J-1 it appears:

i) There is nothing about consideration money,

ii) There is no description of the property to be sold,

iii) No period Was mentioned when the transaction would be concluded.

There is nothing on the record that the names of the nominees were communicated by Ambika to Sailendra Nath Sanyal according to the said agreement for sale.

After three years from the date of execution of the sale deeds by Sailendra in favour of Bibhuti and his wife, Ambika executed two registered Nadabi Patras dated June 14, 199G (Exbts.6 & 6(a)) in favour of Bibhuti and his wife.

Bibhuti as P.W. 4 in his deposition has stated that till he purchased, the name of Sailendra was recorded as owner and Ambika''s name was recorded as ouccupier in the Registrar of the Calcutta Municipal Corporation. The reason that necessitated the execution of Nadabi Patras has been well clarified by Bibhuti by the said fact of Ambika''s previous possession in respect of the suit premises. The reason for execution of the Nadabi Patras by Ambika has not been clarified from his side.

Mr. Roychowdhury in this regard relied on an Apex Court decision reported Kuppugwami Chettiar v. A.S.P.A. Arumugam Chettiar and Anr. AIR 1967 S.C. 139.

Mr. Roychowdhury relying on the principle laid down in this judgment submitted that a registered instrument styled release deed releasing right, title and interest of release without consideration may operate as transfer by way of gift without document clearly shows intention I effect transfer and his signed by or on behalf of the release and or attested at least-by two witnesses.

Mr. Roychowdhury then pointed out that from Exbt. 6 series it appears that address of Ambika was given in the Nadabi Patra as 102, Jatindra Mohan Avenue and not the suit premises. After execution of Nadabi Patras Ambika had not right title and interest in the suit premises except as licensee.

Mr. Roychowdhury submitted that the lower appellate Court in this judgment has dealt with the following points:

i) Whether Ambika took loan of the suit land from Sailendra in 1951.

ii) Whether Ambika constructed the building an the suit land.

iii) Whether Ambika was in possession of the suit premises prior to execution of the sale deed and whether Ambika was a licensee under Sailendra.

iv) There was good motive for Ambika to purchase in benami.

v) Sailendra constructed the building is indeed unreal.

vi) Consideration money is extremely inadequate and Ambika came forward with a satisfactory explanation for the low price.

vii) The case put forward by Bibhuti is not at all convincing with the payment of consideration money for the purchase.

viii) There is the continuity of the possession in the suit property by Ambika and by his heirs from the inception of. the lease. This fact militate against the theory of granting licence to Ambika.

ix) Collection of rent by Ambika in the name of Bibhuti did not matter much in view of the character and the transaction by holding out Bibhuti as true owner.

x) The joint possession of Bibhuti and Ambika also makes one to hold that they were very intimate and Ambika could possibly keep all the documents in the custody of Bibhuti since he was a bachelor.

Mr. Roychowdhury submitted that the learned lower appellate Court in its judgment did not consider, the voluminous material evidence on record and the basic tests to determine a benami transaction and misplaced the burden of proof on Bibhuti in stead of Ambika, who claimed the transaction to be benami one.

Mr. Roychowdhury then submitted that the learned trial Court in its judgment has considered the basis tests to determine the transaction to be benami one and has given proper reasons.

Now Mr. Roychowdhury relied on a decision reported in A.H. Md. Ismail and Co. Vs. Sachidananda Bhattacharjee

Mr. Roychowdhury relying on the principle of the judgment of this High Court submitted that the learned lower appellate Court has given findings of facts without consideration of material facts and circumstances on which the trial Court based its decision is not binding in second appeal.

Lastly Mr. Roychowdhury relied on another decision of the Hon''ble Apex Court reported in T.D. Gopalan Vs. The Commissioner of Hindu Religious and Charitable Endowments, Madras, .

Relying on the principle laid down in the said judgment of the Hon''ble Apex Court Mr. Roychowdhury submitted that it is duty of the appellate Court to deal with the reasons given by trial Court.

Mr. Roychowdhury submitted that the judgment of the lower appellate Court cannot be sustained in law and is liable to be set aside.

The learned Counsel for the Respondent made his submissions and also filed a written note on arguments as has been filed on behalf of the Appellants.

The learned Counsel in the written argument initially described the facts of the case and the grounds taken by the Appellants in memorandum of appeal. Thereafter the learned Counsel in his written argument set out the issues framed by the learned trial Judge.

The learned Counsel submitted that the written arguments tendered by the Appellants only admitted five facts and rests were omitted and the said five facts are as follows:

a) Bibhuti and Ambika were close friends from their boyhood.

b) Sailendra Nath Sanyal was the owner of the suit land.

c) Usha Charan and members of his family have been possessing the first floor of the suit building since April, 1966.

d) The two. sale deeds dated September 27, 1956 in favour of Bibhuti and his wife were executed by Sailendra.

e) Two Nadabi Patras in the name of Bibhuti and his wife were executed by Ambika on June 14, 1960.

According to the learned Counsel Mr. Basu the other admitted facts were deliberately not brought in the notice of the High Court for obvious reasons of suppression.

The learned Counsel then submitted that it has been admitted by the parties to the suits that Sailendra Nath Sanyal is the owner of the suit land. The said Sailendra Nath Sanyal also in his written statement said that Ambika, since deceased took lease of the suit land from him in August 1951 for a period of 20 years in the benami of one Harinarayan Dey. The statements made in the written statement by the Defendant No. 3 in the said suit clearly substantiates the said fact.

The learned Counsel submitted that Harinarayan Dey also supported the case of Arnbika and further went on. to say that he was mere name lender of Arnbika. The said Arnbika also raised two storeyed building, godown and carriage on the said land spending more than Rs. 50,000/- which was also claimed by said Harinarayan Dey and that the building plan was sanctioned in his name as well as electric connection of the building was also taken accordingly. This apart all the evidence of Harinarayan Dey remained unassailed in cross examination. There, is also no specific denial in the written statement filed by Bibhuti and his. wife.

Mr. Basu, learned Counsel for Respondent submitted that in terms of Order 8, Rule 3 of the CPC every denial has to be specific i.e. it shall not be sufficient for a Defendant in his written statement unless the Defendant deals specifically with each and every allegation of facts of which he does not admit. Furthermore, in terms of r. 5(1) every allegation of the fact in the plaint, if not denied, specifically or by necessary implication or against the person under disability provided except as against the person under disability provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.

The learned Counsel in this regard relied on the decision reported in Razia Begum Vs. Sahebzadi Anwar Begum and Others, and K.A. Abdul Jaleel Vs. T.A. Shahida, .

The principle governing the same is the doctrine of non traverse which can be deliberate and intentional and therefore, the case as stated in the plaint of Usha Cha-ran Banerjee remaines admitted,

Now the learned Counsel for the Respondent made his submissions regarding the scope of second appeal in relation to the present appeal that centering around benami transaction. The learned Counsel submitted that the question of. benami is a matter of fact which cannot be traversed in appeal where the lower appellate Court upset the trial Court''s findings after detailed consideration of evidence that property was benami, the same is finding of act that cannot be-disturbed in second, appeal.

The learned Counsel in this regard relied on Ram Prasad and Another Vs. Chhajju and Others,

The learned Counsel also relied on a decision reported in Shyamsundar Pd. Gupta and Others Vs. Darbhangi Rai and Others, In this judgment one Division Bench of Hon''ble Patna High Court observed that the question of benami is purely a question of fact and hot a mixed question of law and fact as it does not involve the application of any legal principle for the determination. This point also is not entertainablein second appeal and must be overruled.

The learned Counsel Mr. Basu also submitted that the decision of the final Court of. fact cannot be reopened in second appeal, however, erroneous the decision may be. In this regard the learned Counsel relied on a decision of the Hon''ble Apex Court reported in Pattabhiramaswamy v. S. Haryna and Ors. AIR 1959 S.C. 57,

The learned Counsel relied on the observations made by the Hon''ble Apex Court in para. 13 of this judgment which is quoted hereinbelow:

If the question to be decided is one of fact it does not involve an issue of law merely because documents which are not instruments of title or otherwise the direct foundation of rights but are mere historical documents, have to" be construed. Nor does the fact that the finding of the -first appellate Court, is based, upon some documentary evidence make it any the less a finding of fact. But notwithstanding such clear and. authoritative pronouncements on the scope of provisions of Section 100 CPC .some learned Judges of the High Courts are disposing of Second Appeals as if they were first appeals. This introduces, apart from the fact that the High Court assumes and exercises a jurisdiction which it does not possess, a gambling element in the litigation and confusion in the mind of the litigant public. This case affords a typical illustration of such interference by a Judge of the High Court in excess of his jurisdiction-under Section 100, CPC Code. We have, therefore, no alternative but to set aside the decree of the High Court oh the simple ground that the learned Judge of the High Court had no jurisdiction to interfere in the second appeal with the findings of fact given by the first appellate Court based upon an appreciation of the relevant evidence. In the result, the decree of the High Court is set aside and the appeal is allowed with costs throughout. The learned Counsel submitted that from the observations made by the Hon''ble Apex Court and the Hon''ble Division Bench of the Patna High Court referred to above it is clear that in this second appeal the Court should not interfere inasmuch as the question of benami is a question of fact.

The learned Counsel'' then reiterated once again that question of benami is purely one of fact and in this regard he relied on a judgment reported in Meenakshi Mills, Madurai Vs. The Commissioner of Income Tax, Madras, :

The learned Counsel further submitted that whether a sale is in fraud of creditors and avoidable u/s 53 is normally a question of fact; In this regard the learned Counsel for the Respondent relied on a decision reported in Errachi Reddiar and Anr. v. Vellayya Reddiar AIR 1968 Mad. 256

The learned Counsel relied on the observations made in para. 4 of this judgment which is quoted hereinbelow:

The other head of defence, that the sale is in fraud of creditors and Voidable u/s 53 of the Transfer of Property Act, is normally a question of fact. But unfortunately, the Courts below and particularly the lower Appellate Court, the final Court of fact, had. failed to address themselves to material evidence on record in regard to the essential ingredients for holding a transfer as fraudulent, that is, a transfer made with intent to defeat or delay creditors. Reference is made by the Court below to Section 7 of Madras Act I of 1955, which raises a presumption that every transfer of immovable property made by the debtor entitled to the benefits of the Act till the complete discharge of his debt shall be presumed until the contrary is proved to have been made with intent to defeat or delay the creditors of the transferor. But the Plaintiffs have pleaded that they are transferees in good faith and for consideration and they have let in evidence on this aspect of their case. Section 53(1) specifically provides that nothing in the Sub-section shall impair the rights of a transfaree in good faith and for consideration. The Plaintiffs are themselves creditors of the agriculturist debtor and out of. the consideration of Rs. 2,000 Rs. 1,900 was in discharge of debts due to them and only Rs. 100 was paid In cash. The lower Courts for their conclusion would make reference to the decision of this Court in Abdul Majid Lebbai Vs. Papathi Ammal and Another, . They failed to appreciate that it was a case where on the facts the transferee appeared to have shared the fraudulent intent of the transferor. The learned District Judge, after referring to the abovecase, simply remarks thus:

In the present case under Ex.A-1, the vendor had received Rs. 100. She has retained this amount for herself. She has not utilised it to discharge the debts due to her husband''s creditor.

With these observations, it was held that the case immediately cited above applied and that the sale Ex.A-1 is in fraud of creditors of the deceased.

The learned Counsel Mr. Basu then submitted that the trial Court delcaring adopting void for absence of consent of wife of adoptive father reversal of finding by first appellate Court on appreciation of evidence proper.

The learned Counsel then relied on another decision of the Hon''ble Apex Court reported in Raushan Devi v. Ramji Sah and Ors. A.l.R. 2002 S.C. 2416.

The learned Counsel relied in para. 8 of this judgment which is quoted hereinbelow:

The learned Counsel appearing for the Appellant strenuously urged that the finding of the trial Court on the lack of consent of the Plaintiff to the adoption should not have been disturbed by the first appellate Court. We are unable to accept the said contention. The matter is essentially one of fact on which the first appellate Court, which is the final Court of fact, has recorded a specific finding based on the evidence on record that the Plaintiff had given her consent to the proposed adoption and that the requirement of giving and taking for ''a valid adoption having been fulfilled the adoption cannot be said to be invalid on any count. It is not disputed before us that ones the adoption is held to be valid, subsequent execution of the deed of cancellation, does not affect the status of the adopted son. In such circumstance no exception can be taken to the High Court dismissing the second appeal holding that the Appellant has not been able to formulate any question of law involved in the appeal. Therefore, this appeal being devoid of'' merit is dismissed. There will be no order for cost.

The learned Counsel submitted that dismissal of second appeal as not involving any substantial question of law. is proper.

The learned counsel then submitted that the Appellant Bibhuti Bhusan has relied on the principle of burden of proof that is benami always rests on the person ascertaining it to be so and that the burden has to be strictly discharged and have also relied on prima facie assumption whereby supply of the purchase money is generally for the benefit of the person.

The learned Counsel relied on a decision of Division Bench of this High Court reported in Sarifar Bibi v. Dilwar Hossain and Ors. AIR 1975 Cal. 211.

The learned Counsel submitted that the Hoh''ble Division Bench followed the principle laid down in Meenakshi Mills, Madurai Vs. The Commissioner of Income Tax, Madras, and submitted that where a person challenges a transaction as benami, the burden of proof is on such person but the initia Konus on him could be shifted with slight evidence on the transferee. The learned Counsel submitted that in the present case Ambika that is the predecessor in interest of Usha Charan Banerjee has clearly proved through documentary evidence that the purchase money was settled by him. Therefore, the onus had totally shifted on Bibhuti Bhusan Banerjee to prove the purchase which he failed to do and also could not show that he had independent sources of money as the learned advocate Mr. Nandadulal Indra, who made the sale deed, indicated in his evidence that the money was supplied by the predecessor in interest of Usha Charan Banerjee which remained incontroverted and thus the burden of proof was shifted on Bibhuti Bhusan Banerjee to prove the genuineness of the transaction which he miserably failed to achieve.

The learned Counsel then submitted that Usha Charan Banerjee that is the Appellant had indicated that he had. paid the consideration amount while the account did not prove so and he had also not produced the books of accounts or the original books of accounts in the trial Court and therefore, the extract from accounts are not account books failing within s, 34 of the Evidence Act and. are inadmissible.

In this regard the learned Counsel relied on a decision reported in Ishwar Dass Jain (Dead) Thr. Lrs. Vs. Sohan Lal (Dead) By Lrs., .

The learned Counsel relied on observations made in para. 23, 24, and 31 of this judgment which are quoted hereinbelow:

Now u/s 34 of the Evidence Act, entries in ''account books'' regularly kept in the course of business are admissible though they by themselves cannot create any liability. Section 34 reads as follows: Section 34: Entries in books of account when relevant?Entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.

It will be noticed that sanctity is attached in the law Of evidence to books of account if the books are indeed ''account books i.e. in original and if they show, on their face, that they are kept in the ''regular course of business''. Such sanctity, in our opinion, cannot attach to private extracts of alleged account books where the original accounts are not filed into Court. This is because, from the extracts it cannot be discovered whether accounts are kept in the regular course of business or if there are any interpolations or whether the interpolations are in a differencing or whether the accounts are in the form of a book with continuous page numbering. Hence, if the original books have not been produced, it is not possible to know whether the entries relating to payment of rent are entries made in the regular course of business.

It is only in the case of Bankers-'' Books Evidence Act, 1891 that certified copies are allowed or the case must come u/s 65(f) or (g) of the Evidence Act. Private extracts of accounts in other causes can only be secondary evidence and unless a proper foundation is laid for adducing, such secondary evidence u/s 66 or other provisions of the Evidence Act, the privately handwritten copies of alleged account books cannot by themselves be treated as secondary evidence.

In the result, we hold that the extracts from accounts are not ''account books'' falling within Section 34 of the Evidence Act and are inadmissible. We also hold that vital material was omitted from consideration by the Courts. Thus, the finding in regard to tenancy is liable to be set aside. Points 4 and 5 are held in favour of the Plaintiff.

The learned Counsel submitted that the purchase of the property by Usha Charan would not be evidenced by learned Court whereas the payment of Rs. 16,0007- by Ambika Charan Banerjee that is the predecessor in interest of Usha Charan Banerjee was rightly proved, and the receipts in original were produced before the learned Court below which are marked as Exbts. L-, L-1 & L-2 (Rs. 9,000/- was paid in exchange of the printing press in terms of the agreement).

The learned Counsel then submitted that Sailendra Nath Sanyal filed a written statement on April 24, 1967 and clearly stated that he received the consideration money from Ambika and executed sale deed on the instruction of Ambika in the name of Bibhuti Btyusan Banerjee, The said fact was not denied specifically by Usha Charan Banerjee at any stage of the suit. This fact not denied shall be deemed to be admitted. The learned Counsel in support of this proposition relied on a decision reported in AIR 1949 21 (Nagpur) .

The learned Counsel submitted that even if assuming but not admitting that Sailendra Nath Sanyal''s written statement was denied in the omnibus manner, such omnibus denial not expressly denied is not" sufficient.

The learned Counsel relied on the provisions of Order 8 Rule 5 of the Code of Civil Procedure, 1908 and the decision reported in 61 C.W.N. 840.

Now on the Nadabi Patras learned-counsel for the Respondent submitted that those were executed on June 14, 1960 by Ambika Charan Bandopadhyay in favour of Bibhuti Bhusan Bandopadhyay wherein the conflicting recitals were made. Contradictory statements in the Nadabi Patras clearly indicates the intention of the said instrument, that is the instrument was executed for some purpose other than the purpose of relinquishment and in order to show on the face that the person executed the deed of disclaimer is thus a nullity in the eye of law,

The learned Counsel submitted that moreover it has been held in the case of Sm. Pankajmi Debi and Others Vs. Sudhir Dutta and Others, that a deed of release cannot convey title. So it does not constitute transfer. The learned Counsel submitted that in a catena of decisions the Hon''ble Court as well as the Apex Court had held that the words in an instrument is to be considered to find the true intention of execution of such instrument.

The learned Counsel for the Respondent submitted that the decisions viz. Thayyil Mammo and Another Vs. Kottiath Ramunni and Others, have been referred to by the Appellants'' learned advocate trying to highlight that a Nadabi Patra is a deed of relinquishment of right title and interest of the executant.

According to the learned Counsel for the Respondent both the decisions have bearing over the present case as three main principles for such a deed to pass right title and interest would be:

a) if the documents ''clearly discloses'' an intention to effect a transfer and;

b) if the deed of release is for ''valuable consideration''.

c) if the deed is signed by the releasor and attested by at least two witnesses.

According to the learned Counsel a bare admission in a document without a consideration cannot pass subsequently acquired title to the property.

The learned Counsel in this regard relied on several decisions of different High Courts including AIR 1916 Cal. 136.

The learned Counsel submitted that averments in documents are to be proved ; they have no presumptive value. In this regard the learned Counsel referred to a decision reported in S. Venkatappa Vs. Narayanappa and Others, .

The learned Counsel further submitted that where there is deed of assignment and deed of subrogation, determination of the same is relevant and not the nomenclature of the document. In this context the learned Counsel filed Title Suit No. 507 of 1966 claiming declaration that Nadabi Patras are illegal.

The learned Counsel submitted that Bibhuti as D.W.4 admitted Ambika was in possession of the suit premises and the suit building before 1960 and left the said suit building in May 1960. The two deeds of disclaimers were executed subsequently which were produced by Bibhuti Bhusan Banerjee.

Ambika had taken lease of the scheduled property by a deed of lease on August 1951 for twenty years and though there was an option for cancellation of the said lease within five years by another registered document the same was not done. According to the learned Counsel for the Respondent the cardinal principle of construction of a document is that the meaning sought to be put upon it must be ascertainable from the language used in it and the surrounding circumstances should not be considered if the meaning be doubtful.

The learned Counsel submitted that evidence is always admissible not to contest or vary a written contract, but to apply it to the facts which the parties had in their minds and were negotiating about.

The learned Counsel referred to the decisions reported in Lamppon v. City of Quebu AIR 1920 P.C. 103 : AIR 1924 P.C. 162.

The learned Counsel further submitted that deed of lease cannot pass title. Therefore it is not a transfer. The. learned Counsel in this regard relied on a decision reported in Sm. Pankajmi Debi and Others Vs. Sudhir Dutta and Others,

The learned Counsel submitted that deed of relinquishment cannot be exhaustive of right and he relied on the proposition reported in AIR 1945 Bom 95.

Insofar as the sale deeds are concerned the learned Counsel submitted that sale deeds were executed by Sailendra Math Sanyal in favour of Bibhuti Bhusan Banerjee and Ivy Lata Banerjee on September 27, 1957 for consideration of Rs. 9,500/- and Rs. 6,500/- respectively.

The learned Counsel submitted that there is no endorsement of payment of consideration in presence of sub-registrar in the body of the sale deeds as per law.

The learned Counsel further submitted that Nandalal Indra, learned Advocate was the person who drafted the sale deed and was present at the time of execution of the same. Mr. Nandalal Indra examined himself as D.W.I and clearly stated that Ambika and not Bibhuti purchased the stamp paper and paid for expenses of registration. He categorically stated that Bibhuti did not pay Rs. 16,000/- or any amount for consideration money to Sailendra Nath Sanyal in presence of sub-registrar at the time of registration.

The learned Counsel further submitted that Sailendra Nath Sanyal also did not admit acceptance of consideration money from Bibhuti in his written statement and on the other hand supported the case of Ambika having purchased the suit property by transferring printing machinaries in Rs. 9,000/- and by payment of the balance consideration money of Rs. 7,000/-.

According to the learned .''counsel for the Respondent these two sale deeds are based on sham transactions and totally fictitious being paper transactions only of the relevance.

According to the learned Counsel for the Respondent in August 1951 Ambika took a lease of the vacant portion of the land at 26 Rani Branch Road for a period of twenty years with an option of renewal for a further period of five years at the rental of Rs. 44/- per month from the then owner Sailendra Nath Sanyal in the benami of his friend Harinarayan Dey. In the said instrument it was clearly specified that the lessee would be entitled to raise construction and reside there.

According to the learned Counsel in the cases of Robbins v. Jones (1863) 15 CB 221, Cavalier v. Pope (1906) A.C. 428 and Lane v. Cox (1897) 1 QB 415 it has been held that the lessors'' covenant for title imports a duty to give possession. After possession is given it is protected by the covenant for quite enjoyment. In the present case no possession was ever made to Bibhuti or Ivy Lata Devi.

Nextly, the learned Counsel for the Respondent on the deed of family settlement submitted that during the pendency of the second appeal before this. High Court one Shankar Deb Banerjee filed an application for substitution on July 8, 1987 consequent to the death of Bibhuti Bhusan Banerjee, the sole Appellant. In the said application it was inter alia stated that said Bibhuti Bhusan Banerjee died on May 24, 1987 leaving behind his wife, one son, three daughters as his heirs and legal representatives. If was further alleged by the said applicant that Bibhuti Bhusan Banerjee prior to his death executed a deed of settlement on September 10, 1974.

The learned Counsel submitted that the applicant thus sought before this Court for his substitution on the demise of his father as per provisions and the alleged deed of settlement, xerox copy of which was tendered before this High Court,

The learned Counsel submitted that as per the provisions of the said deed of trust which was made effective from September 10, 1974 the settler, the. said Bibhuti Bhusan Banerjee was to be the first trustee; on his death his widow Smt. Ivy Lata Debi was to be the next trustee and on her death son Shankar Deb Banerjee was to be the trustee and on the death of said Shankar Deb Banerjee the trust would come to an end.

The learned, counsel submitted that in view of the above position ''the judgment and decree of the trial Court was passed in favour of the said Bibhuti Bhusan Banerjee on June 17, 1974. An appeal was preferred on. behalf of the predecessor-in-interest of these Respondents. judgment and decree of the lower appellate Court was passed in favour of the predecessor-in-interest by reversing those of the trial Court on September 4, 1975. it is, therefore, evident that the said Bibhuti Bhusan Banerjee did not take any step during the pendency of the appeal in the Court of appeal below to bring the trust on record,

Appeal was preferred by the said Bibhuti Bhusan Banerjee in his personal capacity on January 19, 1976 suppressing the fact that the trust had by then come into existence and that he did not have any subsisting right in the disputed property in his personal capacity.

The learned Counsel further submitted that in view of the direction in the deed of trust, the widow of the settler is the only competent person to be brought on record as trustee to the estate of Bibhuti Bhusan Banerjee so long as she is alive and the son Shankar Deb does not come into the picture at all during life time of the widow Smt. Ivy Lata Debi.

The learned Counsel further submitted that since no substitution have been prayed for or granted, by the Court at the material time the appeal has been deemed to have abated long ago.

The learned Counsel submitted that prior to institution of this suit being Title Suit No. 298 of 1996 a notice was sent by Bibhuti Bhusan Banerjee terming Ambika as a licensee and revoking the said license by granting three days for vacating the suit premises. The said notice is hit by Section 63 of The Indian Easements Act, 1882. The said-notice not being in conformity with Section 63 of the said Act, there was no cause of action for institution of the suit thereby invalidating the said suit. The notice to quit dated July 9, 1966 by Bibhuti''s learned advocate specified for three days time and license was revoked w.e.f. July 16, 1966. The period of time is not ''reasonable time'' as per Section 63 of The Indian Easements Act.

According to the learned Counsel for the Respondent, the learned trial Court had failed to apply the basic tests; as to determine whether the transaction was a benami one and also misplaced the burden of ''proof. The learned trial Court also held that the transaction was for Rs. 16,000/- only when-the consideration of the house built by the predecessor-in-interest of the Respondent had was valued at more than Rs. 50,000/- only. The learned trial Court also failed to consider that the predecessor-in-interest of the Respondent had paid the consideration amount and Bibhuti could not prove by any stretch of imagination the source of money for purchase and or why a two storeyed building along with other tin sheds and land was sold for only Rs. 16,000/-.

The learned Counsel then submitted that lease granted to Harinarayan Dey was not considered and thus the lower appellate Court''s order being correct the pre-sent appeal should be dismissed.

The learned Counsel submitted that lease implies a covenant of title and in this regard the learned Counsel relied on several citations.

The learned Counsel finally submitted that the judgment of the lower appellate Court being correct and legal, is sustainable and accordingly the present second appeal Nos. 466, 467 and 468 of 1976 should be dismissed with costs.

Heard the learned Counsel for the parties, considered their respective submissions, considered the judgments of both the Courts below, evidence on record, exits and the averments made in the plaint and written statement.

The contest in between the parties in a narrow compass can be comprehended in the manner as follows:

The contesting parties agreed to the point that Sailendra Nath Sanyal was the owner in respect of the suit property. Bibhuti Bhusan says that by two registered kobalas the suit property was purchased by him and his wife. Ivy Lata Debi at a consideration of Rs. 1 6,000/-.

Bibhuti Bhusarr further says that Ambika is nobody, the suit property was purchased by him and Ambika executed two Nadabi Patras which confirms the sale of the suit property by Bibhuti and his wife.

Bibhuti further said that Ambika had no financial resources to purchase the suit property. Ambika quitted possession simultaneously with his execution of a deed of disclaimer in favour of Plaintiff on June 15, 1960. Subsequently, Ambika requested Bibhuti to grant a shelter in one room since he was in financial distress and since he was the close friend of Bibhuti Bibhuti granted one room in the said premises. Ambika thereafter on the plea of his nephew''s marriage requested Bibhuti as to give him three more rooms on the first floor, a mezzanine room for the marriage of his nephew. Further license was given by Bibhuti but even after the marriage of his nephew Ambika did not vacate the premises, accordingly, Bibhuti revoked the license and filed T.S. No. 298 of 1996 for eviction of Ambika, It is also a fact that Bibhuti filed a Money Suit since he got a decree of mesne profit of Rs. 1,272/- from Ambika. Accordingly, Bibhuti claimed Ambika''s eviction from the suit property. On the other hand Ambika said that Sailendra Nath was the original owner and the. suit property he took in the benami of his friend Harinarayan Dey for twenty years on lease with option of a renewal for a further period of five years. It was also the case of Bibhuti that Sailendra was the admitted owner of the suit property and allowed him to construct a building over the suit property at his own cost. He had a Printing Press named Nistari Printing Works and he had business relation with Union of India and ultimately he suffered heavy loss in his business and he had to fight out the suits filed by the Union Government and the said suit being OOCJ-Suit No. 106 of 1955 is still pending and hotly contested. Ambika also brought a cross suit against the Union Government for realisation of Rs. 3,16,842-10-9. It is the case of Ambika that Nadabi Patras are not valid documents, those were not acted upon and the Nadabi Patras were secured from Ambika by Bibhuti in a mala fide, manner and Nadabi Patras do not confer title. On the other hand case of Ambika is that he took lease in the benami of Harinarayan Dey with an option for extension. It was also the case of Ambika that he purchased the property and for this purpose towards consideration he delivered the press machinaries which valued at Rs. 9,000/- and it was agreed upon that he would pay the rest amount of Rs. 7,000/- on instalments and accordingly he paid Rs. 1,000/- and subsequently Rs. 6,000/-. Ambika also emphatically relied on his submission regarding grant of lease in favour of Harinaryan Dey his friend with option for extension. Now, according to Ambika since Bibhuti disputed the benami transaction and submitted that this is not benami, the onus is upon Bibhuti to disprove benami Ambika claimed 16 annas share, in and over the suit property, Bibhuti made out a case that it is not his duty, or onus is not upon him to prove benami because the case of benami or the claim of benami has been made by Ambika and not by Bibhuti. According to Bibhuti, the person claiming purchase in benami is to prove the case of benami. How these are the two rival claims and or stands. In support of their contentions both the parties presented several citations which have already been mentioned.

Before dealing with the first substantial question of law it appears from records that in no manner it could be proved that who actually constructed the disputed building in the suit land. From the sale deeds being Exbts.5(a) & 5(b) it appears that Bibhuti paid the entire consideration money in cash to Sailendra. Bibhuti also proved his source of money on the basis of documentary evidence. The suit property was purchased by Bibhuti for himself and in the name of his wife by his own money. It also appears from Exbt.-M that Bibhuti took as a loan of Rs. 35,000/- from Ambika. Bibhuti duly repaid the loan as it appears from D.W.5''s evidence.

. In the decision of Vim Singh v. Kan Singh it has been decided who is to prove benami transaction i.e. on whose shoulder the burden is there for proving benami transaction. In the said judgment reported in Thakur Bhim Singh (Dead) by Lrs and Another Vs. Thakur Kan Singh, the concept of benami contemplations have been described. It has been observed by their Lordships in the said judgment ''under the English Law, when real or personal property is purchased in the name of a stranger a resulting trust will be presumed in favour of the person who is proved to have paid the purchase money in the character of a predecessor. Again in the judgment reported in AIR 1974 S.G.171 it has been observed by their Lordships that it is well settled ''that the burden of proving that a particular sale is benami and the apparent predecessor, is not the real owner; always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character''. Their Lordships in this case also observed that though the questions whether a particular sale is benami or not is largely a question of fact and for determing this question no absolute-formula or acid test, uniformly applicable in situations can be laid down. In this case their Lordships summed up and or framed guidelines to prove benami and those are ;

1) The source from which the purchase money came.

2) The nature and possession of the property after purchase.

3) Motive, if any for giving the transaction a benami colour.

4) The position of the parties and the relationship if any between the claimant and alleged benamdars.

5) The custody of the title deeds after the sale and conduct of the parties concerned in dealing with the property after sale.

Their Lordships observed that five guidelines are to be tested through evidence for the purpose of proving a transaction as benami transaction.

In a judgment reported in Biswanath Banerjee and Others Vs. Balai Lal Mukhopadhaya and Others, also it has been observed that there are two clauses of benami transaction 1) where the transaction is genuine and real but the property is purchased by the real owner in the name of another person 2) where the transaction itself is not real but fictitious, brought into custody just to make it appear that there is a transfer which is never intended to be acted upon.

The following passage from Payne''s Hindu Law can be quoted to make an acid test regarding a transaction as to whether it is benami or not. The said passage is quoted hereinbelow:

Principles of benami: A benami transaction is. one where one buys property in the name of another, or gratuitously transfers his property to another, without indicating an intention to benefit the other. The benamidar therefore has no beneficial interest in the property or business that stands in his name; he represents in fact the real owner and so far as their relative legal position is concerned, he is a mere trustee for him. In other words, a benami purchase or conveyance leads to a resulting trusts in India, just as a purchase or transfer under similar circumstances leads to a resulting trust in England. The general rule and principle of the Indian Law as to resulting trusts differs but little, if at all, from the general rule of English law upon the same subject.

In the instant case if the above five tests stare on the face of records, it can be said that the source of money was with Bibhuti but not with Ambika inas-much. as Ambika proved the source as Rs. 9,000/- towards consideration but regarding the rest 7,000/- Ambika had no explanation. Insofar as the original title deeds and other documents regarding the suit property was concerned that is with Bibhuti and not with Ambika. The only thing Ambika could prove that he was in possession even after the purchase. Any explanation of this possession can be given in this manner that when the transaction regarding sale of the property took place Ambika was in possession from before that date of registration of sale deed. Ambika also could not prove the motive for making the transaction benami. Admittedly Ambika has expressed his financial crunch and admittedly he had to sale the printing'' machinary and in that .view of the matter the tests laid down by the Hon''ble Apex Court go to prove that Bibhuti and his. wife were real owners and they purchased the property paying proper consideration and it was not a benami property of Ambika,

Insofar as the question concerning Nadabi Patras/disclaimers does not show any purpose from the part of Ambika inasmuch Ambika tried to prove that Nadabi Patras were not given effect to But it is not the case of Ambika that said two disclaimer documents were executed by him under pressure of Bibhuti or not under misrepresentation of Bibhuti or under fraud committed by Bibhuti, if that is not so whatever may be the legal implication or legal supposition these two Nadabi Pafras/disciaimers only strengthen the case of purchase of Bibhuti. If inference is drawn it may come out in. favour of Bibhuti in the manner that Bibhuti to keep his purchase of the property on a solid base got the Nadabi Patras executed. It is not also a case of Ambika that he is illiterate and in that view of the matter it can be very well said that Nadabi Patras have no legal value regarding the conveyance. Therefore, when Ambika executed two Nadabi Patras whether it has got a legal value or not these two documents cannot go in favour of Ambika because Ambika cannot say that he executed two Nadabi Patras. In fact as rightly submitted, by the learned Counsel for the Appellant that the reason for execution of these two Nadabi Patras by Ambika has not at all been clarified from his side and the sane is the finding of the learned trial Judge. Sailendra in his written statement clearly averred that the Plaintiff Ambika took lease of the suit land from him in August 1951 for a period of twenty years in the beriami of Harinarayan Dey though Harinarayan Dey deposed as D.W.2 and supported the case of Ambika but ultimately Sailendra at the concluding state of the trial filed a petition for withdrawal of his written statement. In the said petition Sailendra did not state that is earlier statements in the written statement were false. Sailendra did not come forward before the Court as a witness support the allegations made by him in written statement.

The learned Counsel for the Appellant rightly submitted that pleadings cannot be construed as substantive evidence and as such no question of withdrawal of the pleadings does arise.

As observed earlier the learned appellate Court below did not properly construe'' the documents on record or the evidence adduced by the respective witnesses in the trial Court. The learned appellate Court below could not come to a conclusion as to why Sailendra executed two Nadabi Patras and or as to why Sailendra filed petition for withdrawal of his written statement or what is the effect of filing of such a petition. The learned trial Court below could not come to a specific finding regarding the construction in and over the land that is actually who made the construction. It was never the case of anybody that Ambika was the licensee under Sailendra at any point of time.

Section 96 of the Code, of Civil Procedure clearly provides that it is the duty of the learned appellate Court below to scrutinise the judgment of the learned trial Judge but in the instant case the learned appellate Court below in fact could not come to any specific finding or could not give any reasoning as to why the trial Court''s findings and or observations will be thrown away or will be disregarded. In fact the statutory duty of the appellate Court below to scrutinise the judgment on all the issues and should have come to a positive finding with reasoning as to why the observations made by the learned trial Judge is bad.

Here in this case I find that neither the question of benarni nor the question of execution of Nadabi Patras, nor the question of construction of the building in and over the land and nor even the relations or status of Ambika, Bibhuti and Harinarayan respectively could be concludingly found by the appellate Court below. The appellate Court below though -concluded with the observations that the judgment and decree passed by the learned trial Judge is set aside but still then the appellate Court below did not give reasons for his set-^ ting aside the judgment and decree passed by the learned trial Judge.

Now comes the question as to whether in a second appeal all these questions can be decided, whether the second appellate Court carl decide the question of benami or whether the question of execution of Nadabi Patras can be decided here or whether the question that a construction is made by one person or other and whether such interference by the second appellate Court will be without jurisdiction or not.

It goes without saying that though it is settled position that the second appellate Court cannot go into the question of fact but the Apex Court''s views in Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., makes it abundantly clear that the second appellate Court can interfere with the findings of lower appellate Court if the said findings are not based on reasons or based on surmise and conjectures and if it appears that there is misconstruction of law and/or arrival at a finding is there on misconstruction on the basis- of the documents and or evidence on records certainly in such cases the judgment and decree of the first appellate Court can be interfered with by the second appellate Court and Saraswathi and Another Vs. S. Ganapathy and Another, makes this proposition clear. In another judgment of the Apex Court reported in Kulwant Kaur and Others Vs. Gurdial Singh Mann (dead) by Lrs. and Others etc., there is clear observation by the Hon''ble Apex Court that finding of fact if based on wrong tests or on assumptions or conjectures and therefore tainted by perversity, High Court could be within jurisdiction in dealing with them in second appeal.

In the instant case as is found the tests for determination of benami transaction would not come out in its satisfaction being supportive of proper tests as provided in various decisions of the Hon''ble Apex Court as well as other decisions pronounced.

Source of finance was established from evidence on record in favour of .Bibhuti, conduct of the parties that is the conduct of the rival parties after the purchase also go in favour of Bibhuti inasmuch as Exbt.D series Municipal Occupier Notices are there and the other documents go to establish that Bibhuti as the real owner. The series of documents were filed by Bibhuti.

The original documents relating to the title of the property were found to be in the custody of Bibhuti. possession though was with Ambika but after the purchase by Bibhuti Ambika comes in the umbrella of Bibhuti and Ambika could not satisfy his title. The agreement for sale though was produced could not be established by Ambika. The learned Counsel for the Appellant rightly submitted that the learned trial Court in its judgment has considered the basic tests to determine the transactions to be benami one and has given proper reasons and the learned lower appellate Court has given finding of fact without consideration, of material facts on which the trial Court based its decision. As. observed earlier, it is the duty of the appellate Court to deal with the reasons given by the trial Court and in this regard I respectfully agree with the observations made in A.H. Md. Ismail and Co. Vs. Sachidananda Bhattacharjee and T.D. Gopalan Vs. The Commissioner of Hindu Religious and Charitable Endowments, Madras, .

In view of the discussions made above the judgment and decree passed by the first appellate Court in Title Appeal No. 790 of 1974, Title Appeal No. 791 of 1974 and Money Appeal No. 140 of 1974 are set aside. The judgment and decree of the learned trial Judge passed in Title Suit No. 298 of 1966 and M.S. No. 89 of 1966 are confirmed* and the judgment and decree . passed in Title Suit No. 507 of 1966 by the first appellate Court is set aside.

In the facts and circumstances of the case Usha Charan Banerjee is given three months'' time to vacate the premises, in default Bibhuti will be entitled to put the decree in execution.

Let a decree be drawn up accordingly.

Let the lower Court records be sent down to the Courts below forthwith.

Urgent xeroxed certified copy, if applied for will be given Jo the parties expeditiously.

Title Appeal No. 790 of 1974 Judgment and Decree passed by learned trial Judge are confirmed and the judgment and Decree passed in Title Suit No. 507 of 1 966 by the first appellate Court is set aside.

P.K.B.