Parbati Debi vs Prahallad Tripathy and Another

N.K. Das, J.—The Petitioner is the Appellant against a judgment of reversal. Plaintiff is the daughter and Defendants are sons of Arta Tiadi, since deceased.

Plaintiff''s case is that her mother Sulochana purchased the suit properties by a registered sale deed dated 10-7-1923 from Arta and one Suli Dibya out of her Stridhan property. Sulochana was in possession of the properties and after her death Petitioner is the sale heir and has been in possession of the same. During settlement operation Defendants claimed ownership and so Petitioner has filed the suit for declaration of title, confirmation of possession and in the alternative for recovery of possession.

Defendant No. 2 supports the claim of Petitioner. Defendant No. 1 in his written statement has stated that the sale deed in name of Sulochana is a benami document and has been made to avoid the dues of one Mathuri Samanta. The sale was not given effect to and after death of Arta, Defendant No. 1 remained in possession. He also claims title by adverse possession.

The trial Court decreed the suit holding that the sale deed is a genuine one and Defendants are in permissive possession.

The appellate Court reversed the judgment of the trial Court holding that the sale deed was a benami transaction and the document (Ex. 4) on which Petitioner relies about permissive possession by Defendants 1 and 2, is a spurious document. As against this decision the Petitioner has come up in Second Appeal.

It is contended by the Appellant that the appellate Court has not considered the evidence on record as discussed by the trial Court and has rased its finding on surmises and inferences which are not borne out by record.

For establishing a case of benami transaction the Supreme Court has laid down the principles in the case of Jaydayal Poddar (Deceased) through L.Rs. and Another Vs. Mst. Bibi Hazra and Others, .

It is well settled that the burden of providing that a, particular sale is benami and the apparent purchaser 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 which would either directly prove the fact of Benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick vail which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be ,benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjecturers or surmises as a substitute for proof.

Though the question, whether a particular sale is Benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformally applicable in all situations, can be laid down, yet in weighing the probabilities and for gathering the relevant indicia, the Courts are usually guided by these circumstances : (1) the source from which the purchase money came; (2) the nature and possession of the property, after the 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 the alleged benamidar (5) the custody of the title-deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale.

The above indicia are not exhaustive and their efficacy varies according to the facts of each case.

The trial Court has approached the case keeping in view the aforesaid points and has discussed the evidence in coming to the conclusion that the transaction is not a Benami transaction. Unfortunately the first appellate Court has approached the case with the impression that the Benami transactions between husband and wife are common in India and therefore he believes this transaction to be a Benami. After narrating one or two circumstances the appellate Court has jumped to his conclusion. Basing on the decisions of the High Courts of Calcutta, Patna and Lahore it has been laid down in the case of Yugal Kishore Sinha Vs. Nagendra Prasad Yadav, .

There is no presumption in Hindu Law that transactions standing in the name of a wife are the husband''s transaction and the onus lies on the other side to make out that the transaction was benami.

This view has also been reiterated in the case of Rambahadur Pandey v. Sudhist Narayan Pandey 1970 B.L.J.R. 423.

This view has also been held in the case of Smt. Sunder Devi and Another Vs. Jhaboo Lal and Others, .

The case of Benami between husband and wife cannot be put on a different footing than other Benami transactions. Even if the husband is in possession of the property along with the wife after conveying the property to her, it has been stated in Corpus Juria Secundum, Vol. 41 page 496:

The legal presumption is land by husband and wife is the in whom is the legal title.

At page 497 it has been stated:

Although, after a husband has conveyed real property to his wife, he is in possession with her, yet as long as he asserts no possession in himself and claims no title to the promises it must be conclusively presume that his possession is in subordination to hers.

The learned appellate Judge has absolutely lost sight of the aforesaid principles and has wrongfully placed the onus and has also ignored the legal evidence available on record. Relying on the principles laid down in R. Ramachandran Ayyar Vs. Ramalingam Chettiar, , it has been held by this Court in Sita Dei and Ors. v. Brajabandhu Sahu and Ors. 40 (1974) C.L.T. 469.

Under Section 100(1)(c) of the Code of Civil Procedure, an appeal shall lie to the High Court from every decree passed in appeal by a Subordinate Court, if a substantial error or defect in the procedure provided by the Code or by any other law for the time being in force, which may possibly have produced error or defect m the decision of the case upon the merits. It the lower appellate Court has paced the onus on a wrong party and its finding of fact has resulted substantially in a wrong approach, that must be regarded as a defect in the procedure. Similarly, if the appellate Court that the possession of possession of the one ignore important pieces of evidence and circumstances, and bases his finding on a non-consideration thereof resulting in error of decision on merits, then a defect of procedure arises which vitiates the finding.

The Supreme Court has also held in the case of Sonawati and Others Vs. Sri Ram and Another, , that if-the appellate Court ignores the Evidence on record that in conclusion is not binding in Second Appeal.

The appellate Court has wrongly placed the onus in this case on Defendant No. 1 and has ignored the important pieces of evidence and circumstances in coming to its conclusion. Accordingly, the finding of the appellate ''Court regarding the sale deed cannot be sustained. Accepting the findings of the trial Court I hold that the sale deed Ext 2 is a genuine transaction, and Sulochana was the owner of the property. Admittedly, Sulochana died in 1947. Succession to the property, therefore, is to be governed by the old Hindu Law in force prior to 1956 and Petitioner will be the only heir to succeed in respect of the suit properties.

The next question is whether Petitioner has been in possession of the property since death of Sulochana or Defendants are in possession. Admittedly, Petitioner is married and lives at her husband''s place. The suit property was the only property of Arta Tradi and Defendants are in possession of the suit property which consists of a house and about 1 crore of agricultural land. Plaintiff''s case is that Defendants are in permissive possession. She has relied on Ex. 4, an agreement which was produced at the time of trial and was not at all mentioned in the plaint. The trial Court has held that this is a genuine document, but the appellate Court has held that this is a spurious document. The case of Defendant No. 1 is that the stamp paper on which the content of Ex. 4 has been engrossed, was a blank paper containing thumb impression and signature of Defendants 1 and 2 which had been given to Bhadralogs for a Panchayat. A bare look at the document will show that it was a blank paper with the thumb impressions and signatures in a different ink and the contents have been written out subsequently. Plaintiff has not been able to explain why this document was not produced before settlement authorities. This document was not even mentioned in the plaint and also was not produced till the date of hearing. The case of Defendant No. 1 is that the stamp paper was with one of the panchayat members, namely Haladhar Misra and Defendant No. 2 who is colluding with Petitioner has got this paper from Haldhar and has fabricated the agreement. D.w. 9 is the son of said Haldhar Misra and he was deposed that Defendant No. 2 get the stamp paper from his father. Nothing has been elicited 10 evidence to discredit this witness. From the evidence of d.w. 9 it appears that one line had been written on the stamp paper while it was brought from his father. On a careful examination of Ex. 4 it would be apparent that a line had previously been written on the stamp paper at the top portion which has been erased and there has been subsequent writing over it. Though the stamp paper is said to be an agreement yet it does not been the signature of Petitioner and Petitioner is unable to explain why she has not signed this document. When Defendant No. 1 has come up with the story of blank paper onus is on the Petitioner to establish that this document was written out before execution and Defendants have duly executed the document. Moreover Petitioner in her evidence has stated that the Defendants were cultivating the agricultural land on bhag and were giving bhag produce. She names 2 persons to have sees her taking bhag produce from Defendants. These 2 persons have been examined from the Defendants'' side as d. ws. 4 and 5 and they have denied the assertion of the Petitioner. The recitals of Ex. 4 also do not show that Defendants were enjoying the properties as bhag tenants. Accordingly I hold that no reliance can be placed on Ex. 4 and Petitioner has failed to prove permissive possession of the Defendants. Even though Defendant No. 2 has tried to support Petitioner, yet the materials on record completely against the plea of permissive possession.

Admittedly, Defendants have all along been in possession of the disputed house and the agricultural land which was also the only property of their father. Defendant No. 1 has also taken the stand of adverse possession in his written statement. Both parries have led evidence as to possession. I have already held that Petitioner has failed to prove permissive possession by Defendant. Admittedly, Petitioner resides in her husband''s place but not in the suit property. It, therefore, follows that Defendants have been in possession of the suit properties since 1947, from the time of death of mother which took place in 1947. Plaintiff has filed the suit for declaration of title and for recovery of possession. She has not been able to prove possession within the stipulated period before the institution of the suit. The suit was instituted in 1966. Accordingly, I hold that the Petitioner has not been in possession within 12 years from the date of the institution of the suit and as such she cannot claim title and recovery of possession. The suit should fail on that count. See Dula Bewa and Others Vs. Balunki Padhan, , Perry v. Clissold 1970 A.C. 73.

Admittedly, the properties are Madhyasatwadhikare behel and have vested in the State Government since 1963. Opportunity was given to both parties to produce document or to inform the Court if any application was filed before the Revenue Officer and if any proceeding under the Orissa Estate Abolition Act has been started. Neither party was able to produce any paper to this effect. On this Court also Petitioner''s suit is also liable to be dismissed. I therefore, hold that Petitioner is not entitled to reliefs claimed by her.

In the result, therefore, the appeal fails and is dismiss. In the circumstances of the case without costs.