Puran Mall and Others vs Mussammat Dilwa

Kulwant Sahay, J.—This is an appeal by the decree-holders against an order of the Subordinate Judge of Gaya, dated the 3rd December 1921, dismissing their application for execution of a decree.

The decree is sought to be executed against Musammat Dilwa, a minor daughter of one Ritu Ram, who objected, to the execution on various grounds, and the learned Subordinate Judge has upheld her objections on the ground that the application for execution was barred by limitation, that Musammat Iyachminia, the widow of Ritu Ram, was dead at the time the decree was passed against her, and that property attached was the personal property of Musammat Lachminia and it could not be sold in execution of the decree. The learned Vakil for the appellants has challenged the correctness of these findings.

* * * * * 3. The, question of limitation is raised on the ground that the third application for execution, which was filed on the 24th of March 1919 against Musammat Dilwa, Begu Sao was named as her guardian, whereas, as a matter of fact, Begu Sao was then dead, and therefore, that application was not an application in accordance with law and it did not save the present application from limitation. Reliance has been placed on behalf of objector-respondent upon paragraph 6 of her petition of objection filed on the. 19th of April 1919 wherein it was stated that the decree-holders had out of evil and cunning motive taken execution proceedings by treating one Begu Sao, deceased, as guardian, hence all the proceedings relating to the attachment, etc., were defective and irregular, and upon the order of the Subordinate Judge in the execution case passed on the 23rd of May 1919 in ?which it was stated that "the objection regarding the, death of the guardian ad litem is allowed."

The learned Subordinate Judge has held that this order of the 23rd of May 1919 amounts to a finding that Begu Sao was dead before the third application for execution was filed; but, in my opinion, this is not a correct view of the order. What was stated in the objection petition was that Begu Sao being dead all proceedings relating to attachment, etc., were defective. There was not a clear allegation that Begu Sao had died before the third application for execution was filed, and the learned Subordinate Judge is clearly wrong in saying that, there was such an allegation in the objection petition. There was no adjudication of the fact as to whether Begu Sao had died before or after filing of the, third execution petition. All that was held in that execution case was that Begu Sao was dead. In the present case no evidence has been given as regards the date of death of Begu Sao, and the order of the 23rd of May 1919 is, in my opinion, not sufficient to hold that he was dead at the time the third application for execution was filed, and it cannot be said that the application was not in accordance with law. It has been contended by the learned Vakil for the appellants that, even assuming that Begu Sao was dead at the time the third application for execution was filed, still that application should in law be treated as a Step-in-aid of execution so as to save the present application from the bar of limitation, and reliance has been placed on the cases of Samia Pillai v. Chockalinga Chettiar 17 M. 76 : 4 MLJ 8 : 6 Ind. Dec. (sic) 52 and Bipin Behari Mitter v. Bibi Zohra 35 C. 1047. In the first case it was held that

An application for execution was to be regarded as a step-in-aid of execution within the meaning of the limitation Act although by mistake a deceased judgment-debtor was named as the person against whom the execution was sought.

In the second case noted above it was held that

If an application for execution of a decree be made under the influence of bona fide mistake against a dead person, though that application cannot be acted upon, still it is an application in aid of execution within the meaning of Article 179(4) of the Limitation Act (XV of 1877) which saves the execution of the decree from being time-barred.

I am in full agreement with the principles laid down in these two cases, and upon the facts of the present case there can be no doubt that Bega Sao, even if he was dead, at the time when the third application for execution was filed, was named as the guardian of Musammat Dilwa under a bona fide mistake and that application must be treated as a step-in-aid of execution. The learned Subordinate Judge has relied on the Privy Council ca*e of Rashid-un-nisa v. Muhammad Ismail Khan 3 Ind. Cas. 884 : 31 A. 572 : 13 CWN 1182 : 10 CLJ 318 : 6 ALJ 822 : 11 Bom LR 1225 : 6 MLT 279 : 19 MLJ 631 : LR 36 IndAp 168 as an authority for the proposition that when an improper guardian is appointed for a minor he is not a party in the proper sense of the term and a suit on his behalf for a declaration that decrees and sales in execution thereof were invalid as against him was maintainable. This case, however, is no authority for the proposition that the application for execution in which a minor judgment-debtor was not properly represented cannot be treated as a step-in-aid of execution. I am, therefore, of opinion that the first objection as regards the application being barred by limitation cannot be sustained, and the present application is not so barred.

The second objection taken on behalf of the objector is that Musammat Lachminia was dead at; the time the decree under execution was passed, and, therefore, the decree was a nullity and it was incapable of execution.

* * * * * 8. I am, therefore of opinion that, having regard, to the contradictory statements made by the objetors as regards the time and place of death, and the very unsatisfactory evidence adduced by her in this case;, it cannot be held that Musammat Lachminia was dead at the time the decree under execution was passed. This objection, therefore, must also be disallowed.

An regerds the third objection the ease of the objector is that the two houses sought to be attached and sold for realization of the decretal amount do not form a part of the estate of Ritu Ram, and as the decree was obtained against Musammat I,achminia not in her personal capacity, but in her representative capacity as the heir of Ritu Ram, the decree-holders are not entitled to sell the said properties in her hands. In support of her objection the objector Ins produced a deed of sale, dated the 15th of October 1906, executed by Ritu Ram in favour of his wife Musammat Lachminia for a consideration of Rs. 500. It is urged on behalf of the decree-holders appellants that this transaction was merely a benami transaction and that Ritu Ram''s title and possession continued up to his death and after his death Musammat Lachminia came into possession of the'' property as-his legal representative and that on her death her daughter the present objector cams in possession of the property as an heir. The urns is clearly upon the decree-holders to prove that the apparent state of things is tot the real state of things but they have adduced no evidence in support of this allegation. They were content with cross-examining the witnesses called by the objector to prove the passing of consideration and possession, of Mussammat Lachminia and they rely on certain circumstances which go to show that Ritu Ram continued to live in the house up to his death, and that Ritu Ram was in debts and, therefore, had some motives in entering into a benami transaction; this, in my opinion, is not sufficient to establish the benami character of the transaction. Having regard to the relationship between the parties no conclusion can be drawn in favour of the appellants from the fact of Ritu Ram continuing to live in the house even after the execution of the deed. As regards his indebtedness, there is absolutely no evidence to show that in the year 1906 when the deed of sale was executed he was so much involved that he was unable to pay his debts. Now, the very fact of the appellants continuing to advance money and grains to Ritu Ram up to the year 1913, and even afterwards, shows that his condition was not so involved in 1906 as to induce him to enter into a benami transaction. Reliance has been placed by the learned Vakil for the appellants on the Privy Council case of Muhammad Mahbub Ali Khan v. Bharat Indu 53Ind. Cas. 54 : 23 CWN 321 : (1919) CWN 507 where their lordships have observed: In regard to benami transactions, Courts of Law should not approach them with, that scrupulous rigour which in other systems of jurisprudence may demand tie exists ice of the clearest positive evidence that the ex facie owner of a property is a trustee for or holds the same for the interest of another."

But in that case there was some evidence adduced to show the benami nature of the transaction, and their Lordships, after laying down the proposition relied upon by the learned Vakil for the appellants, go on to observe: "Benami transactions are very familiar in Indian practice and as Lord Hob-house said in Uman Parshad v. Gandharp Singh LR 14 IndAp 127 : 15 C. 20 : 5 Sar PCJ 71 : Rafique and Jackson''s P.C. No. 98 : 11 Ind. Jur. 474 : 7 Ind. D.C. 599 even a slight quantity of evidence to show that it was a sham transaction will suffice for the purpose.''.... ''Still such a transfer cannot be considered as nothing; the person who impugns its apparent character must show something or other to establish that it is benami or sham trans action.''"

In the present case there is absolutely nothing to show that the transaction was a benami or a sham one. The utmost that can be said is that the decree-holders have created some suspicion by the facts elicited in the cross-examination of the judgment-debtor''s witnesses; but suspicion does not amount to proof, and it would not be safe, in my opinion, upon the scanty material placed before the Court by the decree-holders, to hold that the transaction was a benami one. It is urged that there is no satisfactory evidence as regards the payment of consideration money under the deed of sale. That may be so; but the production of the deed of sale from the custody of the objector is, in my opinion, sufficient to prove her title unless and until some evidence is given by the appellants to disprove the same. In this case there is a total absence of such evidence and I am not prepared to hold that the transaction was a benami one. The third objection of the judgment-debtor must prevail and it must be held that the decree-holders are not entitled to attach and sell the property sought to be sold.

In this view of the case the appeal must be dismissed and it is declared that the properties sought to be attached and sold cannot be attached and sold in execution of the decree. Each party will bear his own costs thrughout.

Mullick, J.

I agree.