Bishwanath Bhagat vs Kailash Bhagat and others

AH Ahmed, J.—This second appeal arises out of a suit Sled by the plaintiff-appellant for partition of the suit properties claiming half share; The suit was decreed by the trial court. An appeal was taken to the lower appellate court where a petition of compromise was filed between the plaintiff and all the defendants, excepting defendant no. 1. On the objection raised by defendant no. 1 to the compromise, the lower appellate court by its order dated 22.9.1980 refused to record the compromise. The appeal was thereafter heard on merit which was allowed. The plaintiff came to this Court in Second Appeal No. 325 of 1981. That appeal was allowed and the case was remanded back to be decided in accordance with law and in the manner indicated in the judgment dated 2.1.1984. The lower appellate court on remand again allowed the appeal. Thereafter, this second appeal has been filed. Admittedly the lands belonged to one Rudal Bhagat, who was recorded as Raiyat in the record of rights. According to the plaintiff appellant, Rudal Bhagat sold the suit lands to Radha Kishun Mahto by a sale deed dated 5th April, 1940 for Rs. 400/-. Radha Kishun Mahto died leaving behind his son Shanker Bhagat, who sold the same to the plaintiff and defendant no. 1 for Rs. 2000/- under a registered sale deed dated 5.10.1962. It is said that the plaintiff and defendant no. 1 remained in joint possession but the plaintiff was facing some difficulty. He, therefore, filed the present suit for partition. Defendant nos. 3 to 8, who are descendants of Rudal Bhagat, the recorded tenant, filed an application for being added us intervenor-defendant. Their prayer was allowed and they were added as defendants. Their case was that the sale deed executed by their ancestor Rudal Bhagat in favour of Radha Kishun Mahto, was a Farzi and sham transaction. If was said that the necessity to execute the sale deed arose as Rudal Bhagat apprehended some trouble from his creditor. According to these defendants, since the sale deed in favour of Radha Kishun Mahto was sham, therefore, it did not convey any title either in to his son or to the transferee from him (his son). On these facts, it was prayed that the suit be dismissed

The trial court came to the conclusion that the defendant has failed to prove that the sale deed dated 5.4.1940 was a sham transaction. It, therefore, decreed the suit. The lower appellate court (after remand) was of the opinion that the transaction, namely, the sale deed dated 5.4.1940 was Farzi and, as such, the plaintiff did not derive any title. On this basis, the appeal was allowed and the suit dismissed. Mr. Naseem Ahmed appearing on behalf of the appellant contended that the court of appeal below erred in appreciating the distinction between Benami transaction and Farzi transaction. He says that Benami transaction is one under which title passes to the purchaser, but the vendee in the deed is someone else other than actual purchaser. According to Mr. Ahmed, this is net the case with respect to Farzi transaction. He says that in case of Farzi transaction title does not pass at all as the same is sham and is never intended to be acted upon. In that connection, learned counsel has referred to the decision in the case of Meenakshi Mills, Madurai Vs. The Commissioner of Income Tax, Madras, . Mr. Ahmed is absolutely correct. The real question, therefore, in this case is as to whether the sale deed dated 5.4.1940 was sham or not in that connection Mr. Ahmed pointed out that in paragraph'' 13 of the judgment, the lower appellate court has formulated the points for determination which, in fact, are the test for determining as to whether the document is Benami or not. Here also Mr. Ahmed is correct and at one stage I was inclined to hold that the judgment is erroneous on account of the fact that the test applied for Benami transaction has been applied in this case. But Mr. Roy appearing on behalf of the respondents successfully persuaded me to change my view. He says that the most important thing that has to be considered in this case was as to whether any consideration at all passed under the sale deed dated 5.4.1940. He has drawn my attention to the discussion made by the lower appellate court in this regard and also to the finding which says that no consideration at all was paid by Radha Kishun Mahto or anyone else on Us behalf to Rudal Mahto for the sale deed dated 5.4.1940. This finding alone finishes the case so far appellant is concerned. But to support the judgment, learned counsel also drew my attention to the finding that the vendee under the sale deed dated 5.4.1940 never came in possession of the suit lands and Rudal Mahto and after his death, his heirs continued to remain in possession. This is the final (sic) in the coffin of the plaintiff''s case. I, therefore, see no merit in the appeal which is, dismissed; but without costs.