Fakir Charan Behera vs Brundaban Behera and Others

R.N. Misra, J.—Defendant No. 1 has appealed against the affirming judgment of the learned District Judge of Puri in a suit for partition and allotment of half share of the properties described in A and B schedule of the plaint. Brundaban Plaintiff and Fakir-Defendant No. 1 are brothers being sons of one Halu.

Plaintiff claimed that Halu died in 1961. Halu had incurred some loans and with a view to screening the A schedule property from the creditors, he had executed a benami sale deed in respect thereof in favour of one Manguli Barik sometime in 1946. The said property as also the title deed, however, remained with Halu all the time.

Defendant No. 1 claimed that the transfer in favour of Manguli was a genuine transaction and after the sale, Halu parted with possession and went away to Satyabadi where he started living in a rented house. Manguli wanted to sell away the property and the consideration money or Rs. 2501- was settled. Manguli delivered possession of the A schedule property to Defendant No. 1 and made over the title deed by which Halu had transferred the property to Manguli, but before a regular sale deed could be executed and registered, Manguli expired. Plaintiff having gained over the heirs of Manguli had prevailed upon them not to execute the deed of transfer. B schedule properties are not liable for partition as they have been acquired out of separate income of Defendant No. 1 or have been presented by way of dowry by Defendant No. 1''8 wife.

The learned Trial Judge came to hold that (i) the sale deed of A schedule property executed by Halu in favour of Manguli (Ext. D) is a benami one and Defendant No. 1 has, therefore, no exclusive right to such property. Accordingly the said property is partible on the basis that it belonged to the joint family, (ii) the existence of B schedule properties at the time of filing of the suit has not been established and, therefore, Plaintiff is not entitled to partition thereof, and (iii) the theory of previous partition alleged by the Defendant has not been established. Accordingly, the learned Trial Judge passed a preliminary decree for partition of A schedule property.

Defendant No. 1 in his appeal before the lower appellate Court contended that the burden lay on Plaintiff to establish that the sale deed (Ext. D) was a benami one and on account of wrong placing of onus on the Defendant, the decision is vitiated. There was no evidence of any pressure on the estate to provide the motive for entering into a benami deal. There was no evidence worth the name for holding that Halu continued in possession of the disputed property. Plaintiff had failed to establish his subsisting title in order that he could claim partition. The learned Appellate Judge reassessed the entire evidence and upheld the conclusion of the trial Court. The confirming decree of the lower appellate Court is assailed in second appeal.

There is no dispute that Halu was the owner of the A schedule property once upon a time. Halu''s alienation in favour of Manguli under Ext. D was claimed by the Plaintiff to be a benami transaction. If Ext. D is found to be benami, Manguli would have no title therein and the defence version of Manguli conveying title and on the basis of such purchase Defendant No. 1 becoming exclusive owner would not arise. The real question for consideration, as Counsel for Appellant rightly contends, is as to whether title to A schedule property had remained with halu uneffected by Ext. D because it was a benami transaction or title was lost because under Ext. D, the true owner of A schedule property had alienated the same in favour of Manguli. The question for examination, therefore, is whether the alienation under Ext. D is a benami transaction.

The finding regarding benami character is one of fact and ordinarily in second appeal there is no scope for interference with such finding. It is, however, contended that the lower appellate Court committed a serious mistake in placing the burden to establish the negative on the Defendant and, therefore, the judgment is vitiated. In paragraphs 6 and 7 of the judgment, the lower appellate Court has stated:

In view of the arguments advanced, the only point for consideration is whether the property described in schedule A is still the joint family property or the separate property of Defendant No. 1, the Appellant. The Plaintiff has alleged in the plaint that his father-Halu was the owner of the suit property and that fact is admitted. He has further alleged that Halu had creditors and to screen the property from the hands of the creditors, he only executed a nominal sale deed in favour of Manguli Barik who is the maternal uncle''s son of Halu. He has further pleaded that as the alienation was nominal in nature and as Halu continued to remain in possession it still continues to be joint family property and it is liable to be partitioned. The Appellant''s claim is that the alienation in favour of Manguli was for consideration and it has been acted upon and he has purchased back the property from out of his own funds. As such the property is not liable to be partitioned. In view of the allegation that the alienation in favour of Manguli under Ext. D is benami in character, the onus is no doubt heavy on the Plaintiff to prove the same. But as both parties have adduced evidence, the point of onus has become immaterial and it has to be found as a fact whether the alienation by Halu the father, was really a sale and it was acted upon.

From what has been stated above by the lower appellate Court, it is clear that there was no wrong placing of onus. The learned Appellate Judge took into account the normal indicia for finding out whether the transaction is benami and on a re-assessment of the materials came to agree with the trial Court''s conclusion on the point of benami. I do not think, in second appeal I would be justified in entering into afresh assessment of the materials to dispose of the dispute of fact regarding the genuineness of Ext. D. In these premises, it must be held that the point raised in second appeal has already been concluded by a finding of fact and the judgment of the lower appellate Court is not open to attack.

The appeal fails and is dismissed. There would be no order for costs as there is no appearance for the Respondents.