Jagat Singh vs Jai Dev

P.C. Pandit, J.—On 16th of June, 1962, Radha Krishan sold land measuring 61 Kanals 5 Marias, out of which 61 Kanals was situate in district Jullundur and the balance of 5 Marlas in district Hissar, in favour of Jagat Singh for Rs. 17,000/- on the 14th of June 1963, Jai Dev filed a suit for preemption on the ground that he was the son of the vendor and had thus a preferential right of purchasing the said land. According to him, however, only Rs. 14,000/- had actually been paid by the vendee for this land. The suit was resisted by the vendee on a number of grounds, but in the present appeal, we are only concerned with two of them. His case was that the suit was collusive and Benami and was liable to be dismissed on that ground. Harbans Singh of village Chataru, district, Jullundur had got it filed for his own benefit and at his own expense. It had been agreed amongst the said Harbans Singh, the vendor, and the plaintiff that in case the suit was decreed, the land would be sold in favour of Harbans Singh, it was also pleaded by him that even if the plaintiff was found to be the son of the vendor, he could not file the present suit, because he constituted a Joint Hindu family with his father and the land in dispute had been sold by the father as the manager of the Joint Hindu family for rivaled consideration and for the benefit of the Joint Hindu family.

On the pleadings of the parties a number of issues were framed. Issue 8-A, the finding on which is being contested here, was "whether the suit is collusive and Benami as alleged". No specific issue was, however, framed on the other plea of the defendant mentioned above.

The trial Judge decided issue No. 8-A in favour of the defendant and dismissed d the suit. On appeal, however, the learned Additional District Judge reversed the decision of the trial court on that point and decreed the suit on payment of Rs. 20333/50 Paise to the vendee. Against this decision, the present second appeal has been filed by Jagat Singh.

Learned Counsel for the appellant, in the first instance, contended that the plaintiff''s suit should have been dismissed on the short ground that he, being a member of the joint Hindu family constituted by him with his father, could not pre-empt the sale in dispute which had been effected by the father as the manager of the joint Hindu family. The land, which was the subject of the sale, was the joint Hindu family property and the said sale had been effected for the benefit of the family.

There is no force in this contention. As already mentioned above although this plea was taken by the defendant in paragraph 3 of the written statement yet no issue was claimed by him on that point. Admittedly this question was not even agitated either before the trial court or before the lower appellate court. If there had been an issue on the point, the plaintiff could have shown that he did not constitute a joint Hindu family with his father and the land, which was the subject matter of the sale, was not the joint family property. This point, indisputably, involves decision on questions of fact and, consequently, the vendee cannot be allowed to agitate if for the first time in second appeal.

Learned Counsel then submitted, and this was his main contention, that the learned Additional District Judge had erred in law in reversing the decision of the trial court on issue No. 8-A. The trial Judge had taken into consideration a number of facts and circumstances in arriving at the decision that the plaintiff''s suit was collusive and Benami. He held that Harbans Singh had been fighting the litigation. He had obtained copies of the Fard, which were attached with the plaint, from the patwari and was attending the court on almost all the hearings of the case. He purchased the stamps for getting the copy of the sale deed in question for filing the pre-emption suit. According to the learned Judge, there were circumstances to show that it was the plaintiff''s father Radha Krishan and Harbans Singh who were in fact fighting the suit on behalf of the plaintiff and that the financing of the litigation was done by Harbans Singh. It was further held that Harbans Singh wrote a letter to one Bir Singh of village Nandhari, district Hissar, in which be admitted that he had got this suit filed, because he himself was to purchase the land. His opponents, Narain Singh and Chattar Singh, were prevailing upon the plaintiff Jai Dev and his father Radha Krishan to withdraw the suit. Bir Singh was, therefore, requested to wield his influence and persuade them not to do so. According to the learned. Judge it was Harbans Singh, who in collusion with Radha Krishan, had got the suit filed by the plaintiff who was a mere figure head. The learned Additional District Judge, on appeal, however, relied on a Full Bench decision of this Court in Bachan Singh and others v. Bhopal Singh and others (1965) 67 P.L.R. 849 wherein it was held that a plaintiff in a pre-emption suit could not be held dis-entitled to a decree, merely because, in order to raise funds for the litigation, he had entered into an agreement with another person as to what he would do with the property when he got it. Any subsequent transfer by the successful plaintiff pre-emptor, after he had obtained the decree might give rise to a fresh cause of action to other pre-emptors. The Court was scarcely concerned with the question as to how the plaintiff raised funds for prosecuting the suit. In view of this decision, according to the learned Additional District Judge, the allegations of the vendee that the plaintiff would be transferring the property to Harbans Singh after acquiring it or that Harbans Singh was helping in the prosecution of the case, would not in any way affect his right to pre-empt the sale. If Harbans Singh had agreed to take the property, it was quite natural for him to see to the successful conclusion of the litigation by the plaintiff The learned Judge also did not agree with the contention of the counsel for the vendee that the suit was collusive. Collusion according to the learned Judge, necessarily meant that some benefit of the vendor was involved and that is why he got the suit filed by the plaintiff. No such benefit had ever been alleged or proved. When the land was to be transferred to Harbans Singh by the plaintiff, then there was no question of any benefit accruing to the vendor, because it would be the plaintiff who would be deriving any benefit from the sale to Harbans Singh. Under these circumstances, according to the learned Judge, it could not be held that the suit was collusive or Benami which might result in its dismissal. According to the Learned Counsel, the observations in the Full Bench decision, relied upon by the learned Additional District Judge, were merely obiter. Besides, an appeal had been filed against that decision in the Supreme Court and the same was still pending. Learned Judge had not discussed the evidence produced in the case. His submission was that on the findings of fact given by the trial court after appraisal of the evidence, there could be no other conclusion except this that the suit filed by the plaintiff was Benami for the benefit of Harbans Singh and the former was a mere figure head. The learned Additional District Judge had ignored the fact that the vendee had taken a specific plea in the written statement that there was collusion amongst the vendor, the plaintiff and Harbans Singh that in case the suit was decreed the land would be sold in favour of Harbans Singh. According to the Learned Counsel, evidence had been led to show that the suit was collusive and a finding to that effect should have been given by the lower appellate court.

It is undisputed that the right of pre emption is personal to the pre-emptor, because it is he alone who has the prior right of purchasing the property on the date of sale. This right is not transferable.

Form that it follows that he himself alone must exercise it. If, however, he acts Benami, then his suit must be dismissed on that ground. The question then necessarily arises as to what is meant by saying that he is acting ''Benami''. ''Benami'' in Aiyer''s Law Lexicon means ''nameless'' fictitious, fraudulent; as a purchase under a false name, or land held in another name than that of the real Proprietor. A sale or purchase made in the name of someone other than the actual vendor or ''purchaser.'' From this, it is clear that when we say that a person files a suit Benami, it means that he is not the real plaintiff and it is somebody else who is using his name and if the suit either fails or is decreed, it will be the other person who will suffer or gain thereby. The plaintiff in whose name the suit has been filed has actually no interest in the litigation and in such a situation in the ordinary parlance we say that he is merely a figure head and the real person who will suffer or gain by the result of the litigation is somebody else for whom he is acting Benami. If it was proved that the result of a pre-emption suit would be that the decree would be passed in favour of somebody else and it is he who would gain thereby, then such a suit would be held to be Benami. As remarked by Rattan Lal Gupta in his book on ''The Punjab Pre-emption Act, 1949 Edition, page 109, a person will be said to acting Benami for another, when that other person can and will, on the plea, that he is the real plaintiff, be entitled to take from the pre-emptor whatever may be decreed to him without regard to the willingness or unwillingness of the pre-emptor. He acts not as himself, but as the other person. Such a Benami suit deserves dismissal, because as already remarked, the right of pre-emption being a personal right, the plaintiff in such a case will not be exercising that right himself. If we bear this principle in mind, we can appreciate that if a person, who has a right of pre-emption, brings a suit in exercise of that right for his own benefit, it is irrelevant to consider as to who had actually instigated him to do so or wherefrom he got the funds for that purpose. It would also be beside the point to go into the question as to what he would do with the property in case his suit was ultimately decreed. If his suit is decreed, he becomes the owner of the property and he can dispose it of in any manner he likes. Like-wise if the pre-emptor has no funds with him, he is entitled to borrow the same from any quarter and on any terms and fight out the litigation. In other words if he either takes the financial assistance of somebody else or help in the day-to day proceedings in the court, it could not be said that there was any legal prohibition in- his doing so. Such a suit cannot be termed Benami which would merit dismissal. What then is a Benami pre-emption suit ? In my opinion, ''when a person either before or after the filing of the pre-emption suit, transfers his right in the property in favour of another person, in that contingency it would be held that he was acting Benami for the transferee. If the suit as decreed, the decree-holder in fact would be the transferee; on the other hand, if the suit is dismissed, it would be the transferee who would lose thereby. Such a pre-emptor would be a mere figure-head and wholly disinterested in the result of the litigation. He would be a plaintiff only in name, the real plaintiff being the transferee It is needless to mention that the plea of the vendee that a particular suit is Benami has to be proved strictly by him beyond all reasonable doubt.

Applying the principle mentioned above to the facts of the instant case, if would be seen that even on the findings of fact given by the trial court, which have already been detailed by me in the earlier part of my judgment, it could not be held that the plaintiffs suit was benami. It is clear that the plaintiff has not actually parted with his right in the property either before or during the pendency of the litigation. It is only than, as I have said above, that the suit would be termed as Benami. It might be mentioned that it was not the case of the vendee that the suit had been filed merely for the benefit of Radha Krishan who wanted to get back the property and undo the sale voluntarily made by him a year back. The entire argument of the counsel for the vendee was that the suit was being fought for the benefit of Harbans Singh, and it was, therefore, that he was financing the litigation and looking after it in its day-today progress.

In view of what I have said above, this appeal must fail and is dismissed. In the circumstances of the case, however, I will leave the parties to bear their own costs throughout.