Radha Gobinda Roy vs Durgarani Dassi

P.N. Mookerjee, J.—This appeal arises out of a suit for partition and accounts. The suit has been decreed in part in a preliminary form for partition. The claim for accounts has been dismissed by the learned Subordinate Judge. Defendants Nos. 2, 3, 4, 5 and 9 have come up on appeal to this Court. The Plaintiff has filed a cross-objection.

The suit included a large number of immovable properties mentioned in schs. Ka and Kha of the plaint, sch. Ka comprising 37 lots or items and sch. Kha comprising 4 lots or items. In sch. Ga were mentioned certain movable properties, and in connection with, her claim for accounts, the Plaintiff appended certain items in sch. Gha of the plaint for which, amongst others, she claimed compensation.

The suit was originally contested by Defendants Nos. 1, 2, 3, 4, 5, 6 and 9 who filed written statements denying the Plaintiff''s claim. Eventually, however, Defendants Nos. 1 and 6 compromised the suit with the Plaintiff admitting her title to the suit properties and Defendant No. 1 applied for a separate allotment in his favour in respect of his share on partition. Defendant No. 8 from whom the Plaintiff had purchased the suit properties filed a written statement supporting the Plaintiff''s claim but did not take any further part in the trial in the court below. Defendants Nos. 7 and 10 did not appear in the case and did not contest the Plaintiff''s claim.

The main defence of the contesting Defendants was as follows:

(1) That some of the properties of the plaint schedules were not to be found in the Plaintiff''s documents of title, viz., Exs. 1 and 1(a), and so the Plaintiff had no title to the same and could not claim any relief in respect thereof. In the written statement of the contesting Defendants a large number of properties were mentioned in this connection, but at the hearing of the suit this defence was limited to lot No. 4 of sch. Kha and lots Nos. 24, 33 and 36 of sch. Ka.

(2) That in some of the properties mentioned in the plaint schedules, viz., lot No. 3 of sch. Kha and lots Nos. 8, 16, 22 and 29 of sch. Ka, there were several persons interested besides the parties before the court, and, as such, those items should be excluded from the suit.

(3) That lots Nos. 10, 28 and 32 of sch. Ka and lots Nos. 1 and 2 of sch. Kha were the separate and self-acquired properties of pro forma Defendant No. 5, Sm. Sudharani Boy, wife of principal Defendant, No. 2, Badha Gobinda Roy; that interest No. 3 included in lot No. 36 of sch. Ka was the separate and self-acquired property of Defendants Nos. 3 and 4 and lot No. 8 and lot No. 22 of sch, Ka were the separate and self-acquired properties of Defendant No. 9; and that, accordingly, the Plaintiff''s claim in respect of the above lots should be dismissed.

And

(4) That the suit was barred by reason of a previous partition.

The learned Subordinate Judge found inter alia that the Plaintiff''s kabalas, Exs. 1 and 1(a), did not contain lot No. 4 of sch. Kha and also interests 4 and 6 of lot No. 36 of sch. Ka. He further held that lot No. 33 of sch. Ka and lot No. 24 of that schedule barring the separate properties, if any, of Touzi No. 95, other than the properties appertaining to interest No. 88, included in that lot and interest No. 3 with sub-interest No. 12 and Shamilat interest No. 10 of lot No. 36 of the plaint sch. Ka w�re not covered by the Plaintiff''s kabalas, Exs. 1 and 1(a). The learned Subordinate Judge also found that in lot No. 3 of sch. Kha and lots Nos. 16, 22 (so far as it was covered by the sale certificate, Ex. B) and 29 of sch. Ka there were certain persons interested who were not parties to the suit. On the question of self-acquisition the learned Judge came to the conclusion that Sudharani''s claim could not be sustained as she was, according to him, a benamidar of the joint family of which the Plaintiff''s vendor was a member. Similar was his finding with regard to the Defendants'' claim in respect of lot No. 36 of sch. Ka excepting the interests Nos. 4 and 6, and with regard to lot No. 22, he came to no finding under this head as it was considered by him unnecessary in view of its exclusion as mentioned above. As regards lot No. 1 of sch. Kha, the learned Judge''s view inter alia was that it was not a joint property of the said joint family and should, therefore, be excluded from the suit and as to the defence story of previous partition it was disbelieved by the learned Subordinate Judge.

In the above state of things the learned Subordinate Judge decreed the Plaintiff''s claim for partition preliminarily to the extent of her one-fifth share in the properties of schs. Ka and Kha of the plaint barring only lots Nos. 1, 3 and 4 of sch. Kha and lots Nos. 16, 29, 22 (so far as it was covered by the sale certificate, Ex. B) and 36 (interests Nos. 4 and 6) of sch. Ka and also the separate properties, if any, under Touzi No. 96, not Covered by interest No. 88, but included in lot No. 24 of the said Ka schedule. The Plaintiff''s claim for partition in respect of the above excluded properties and the movables of sch. Ga of the plaint as also her claim for accounts including her claim for compensation in respect of the Gha schedule properties was dismissed by the learned Subordinate Judge. The learned Judge also passed a similar preliminary decree for partition in favour of Defendant No. 1 in respect of his 4 annas 16 gamdas share in the properties, held partible as aforesaid, and the solely filed by the Plaintiff and Defendants Nos. 1 and 6 was made a part of the decree.

In this appeal by the contesting Defendants, three points have been urged by their learned advocate Mr. Guru Prosad Ghose. He has contended first that the story of previous partition ought to have been accepted by the learned Subordinate Judge, particularly in view of the paper marked "X" for identification in the court below. This paper was held by the learned Subordinate Judge to be inadmissible in evidence as it was neither stamped nor registered, and the Defendants'' oral evidence as to previous partition was found by him to be extremely unreliable. These findings have been seriously challenged before us by Mr. Ghose. We are, however, far from satisfied that the said findings are incorrect. The paper in question is clearly a deed of partition and, accordingly, it was rightly rejected by the learned Subordinate Judge as not admissible in evidence in the absence of stamp and registration. That being the position the oral evidence of previous partition is also excluded u/s 91 of the Indian Evidence Act, but, even apart from that, we are clearly of the view that the learned Subordinate Judge was right in disbelieving this oral evidence, and his finding on the question of previous partition must, therefore, be affirmed. The first point urged in support of the appeal, accordingly, fails.

As, in our opinion, the paper marked "X" for identification is not admissible in evidence, it is not necessary in this case to go into the question whether the said paper is genuine or manufactured by the Defendants. The finding of the learned Subordinate Judge on this question is set aside as being unnecessary.

Next, the Appellants contended that the Plaintiff''s kabalas, Exs. 1 and 1(a), did not include a number of properties in respect of which the learned Subordinate Judge had decreed the suit. A long list purporting to be of such properties was given to us by Mr. Ghose. We find, however, that this objection was not taken in the written statement with regard to all these properties, and at the hearing before the learned Subordinate Judge the scope of this objection was expressly limited only to lot No. 4 of sch. Kha and lots Nos. 24, 33 and 36 of sch. Ka of the plaint. In the circumstances of this case we are not inclined to allow Mr. Ghose to extend this argument to any property not challenged before the trial Judge on this ground, and as the learned Subordinate Judge has excluded from the suit lot No. 4 of sch. Kha and interests Nos. 4 and 6 of lot No. 36 of sch. Ka and also the properties, if any, of Touzi No. 95, not covered, by interest No. 88 but included in lot No. 24 of that schedule we are only called upon to consider under this head as to whether any part of lot No. 83 of sch. Ka or any other portions of lots Nos. 24 and 36 of the said schedule" are to be omitted from the suit on the ground of their non-inclusion in the Plaintiff''s kabalas, Exs. 1 and 1(a). These kabalas have been examined by us with the help of the learned advocates for the parties, and in the end Mr. Ghose has very fairly conceded that on a proper reading of the said documents he could not really urge that the learned Subordinate Judge was wrong in his reading of the same. This contention of the Appellants must also, therefore, fail.

So far as the appeal is concerned there remains now only the Defendants'' claim of separate title or self-acquisition in respect of the several properties mentioned in an earlier part of this judgment. It has been urged by Mr. Ghose that the learned Subordinate Judge ought to have accepted in full the Defendants'' claim in this respect. Of the properties claimed by the Defendants under this head some were excluded by the learned Subordinate Judge from partition on other grounds, viz., lot No. 1 of sch. Kha on the ground of its not being a property of any of the parties to the suit, and lot No. 22 of sch. Ka (so far as it was covered by the sale certificate, Ex. B) as belonging also to persons who were not parties to the suit and lot No. 36 (interests Nos. 4 and 6) of the said sch. Ka as being not included in the Plaintiff''s kabalas, Exs. 1 and 1(a). Before us it was contended on behalf of the Appellants that the learned Subordinate Judge ought to have excluded also lots Nos. 8, 10, 28 and 32 and the remaining portions of lots Nos. 22 and 36 of the sch. Ka and the whole of lot No. 2 of sch. Kha. We do not think that this contention is wholly without substance and, in our opinion, it ought to succeed in part and the Defendants'' case of self-acquisition with regard to the said lots excepting lots Nos. 8 and 22 ought to be considered afresh by the trial court.

With regard to lot No. 8 of the Ka schedule and the remaining portions of lot No. 22, as mentioned above, of the said sch. Ka this argument cannot be sustained. Lot No. 8 and the remaining portions of lot No. 22, as mentioned above, of sch. Ka were claimed by Mr. Ghose as separate properties of Defendant No. 9. There is, however, nothing on the record to warrant this claim. To prove the title of Defendant No. 9, Mr. Ghose relied upon the sale certificate, Ex. B. That, however, does not certainly cover lot No. 8 and the portion of lot No. 22 comprised within it has been excluded by the learned Subordinate Judge from partition. No title to the remaining portion of lot No. 22 can be founded on this document, Ex. B, and as Mr. Ghose could not place any other material in support of Defendant No. 9''s claim of separate title, the finding of the learned Subordinate Judge in regard to lots Nos. 8 and 22 must be upheld.

The position, however, is different when we come to the claim of self-acquisition of Defendants Nos. 3, 4 and 5. Defendants Nos. 3 and 4 claim lot No. 36 as their separate property obtained by inheritance from their mother Sm. Arunsashi Dasi, who, according to them, acquired the said property at an auction sale, and the relevant sale certificate (Ex. B(2)) stands in her name. Defendant No. 5, Sm. Sudharani Roy, claims the remaining properties, lots Nos. JO, 28 and 32 of sch. Ka and lot No. 2 of sch. Kha on the basis of certain purchases, alleged to have been made by her. It is not disputed that the last documents of title in respect of these properties stand in Sudharani''s name. Accordingly, the question arises whether Sm. Arunsashi or Sm. Sudharani were the benamidars of the joint family of which the Plaintiff''s vendor was a member. In our opinion, this question has not been properly dealt with by the learned Subordinate Judge.

The decision of the learned Subordinate Judge on this part of the case is vitiated by a fundamentally wrong approach. The learned Judge seems to have been unduly obsessed with the idea that the husbands of these two ladies were respectively Kartas of the joint family in question at the relevant times and had ample funds in their hands and had thus enough scope for making benami purchases in the names of their respective wives. In this background he has considered the question as to whether the two ladies were benamidars for the joint family, and his finding thereon has been coloured to a large extent by his earlier finding that their husbands had sufficient joint family funds in their hands at the material times to make benami purchases in the names of their respective wives. We do not think that this was a true approach to this part of the case.

The first question is whether the apparent is or is not the real state of things, viz., whether the ladies whose names appear on the relevant documents of title as purchasers are or are not the real purchasers of the disputed properties. This pure question of benami must first be decided on the well-known principles, universally recognised in the law of benami. The initial presumption in favour of the ostensible or the apparent owner and the onus, however slight, that lies upon the challenger to displace the same must not be disregarded or totally lost sight of in deciding this part of the case. It is not merely a pure question of onus or burden of proof, but there is also the question of rebutting the initial presumption which the law raises in such circumstances in favour of the ostensible or the apparent owner. To disregard this presumption altogether upon the view that when evidence has been led on both sides, the question of onus loses its importance, would, in our opinion, be a serious mistake. To stifle the presumption, to bar it at the threshold and to refuse it access altogether merely because both the parties have adduced evidence would be a clear negation of the age-long principles applicable to cases of benami. Such a proposition, if accepted, would indeed revolutionise a fundamental part of the law of benami. We are not prepared to accept the same, and, in our opinion, the evidence on the question of benami has to be considered bearing well in mind the initial presumption in favour of the ostensible or the apparent owner and the duty of the challenger to rebut the same. It is quite true that slight evidence may shift the burden but in adjudging the criteria, for example, the source of the purchase money, the possession of the property, the custody of the title deeds et cetera, it would not do to start with a clean slate without the writing therein of this initial presumption to which the apparent holder is, in law entitled. The approach to the matter must be kept clear, and the question of benami must be kept separate from the other question of availability of the joint family funds, except for the purpose of seeing whether such funds were in actual fact employed for the acquisition in question. At that stage the presumption in favour of a joint family acquisition arising from the existence of a sufficient nucleus or surplus of joint family funds would be wholly out of place. It Is only when the ladies are found not to be the real owners, either from the absence of resources or possession or the other indicia of real ownership that the presumption which is above referred to may be logically applied to decide the question of title. For the purpose of this presumption, the ladies� though wives of the Kartas at the relevant times�are not, strictly speaking, members of the joint family, and the acquisitions standing in their names cannot be presumed to be for the benefit of the joint family merely because the family had a sufficient nucleus or surplus of joint family funds at the time of such acquisitions. The ladies may, no doubt, be shown to be benamidars for the joint family by proving either directly or from circumstances that the funds employed for the acquisitions in question were joint family funds, or by proving that such funds were supplied by their husbands who were Kartas or members of the family, and who, therefore, were subject to the adverse presumption arising in favour of joint family acquisitions from the existence of a sufficient nucleus of joint family funds. It would be wrong, however, to start with a finding that as the husbands had sufficient joint family funds in their hands, they had ample scope for benami purchases in the names of their wives and then consider in that background whether the wives who were the apparent owners were really so. The mistake of the learned Subordinate Judge consisted in this wrong approach, and, accordingly, his judgment on this part of the case must be set aside and the case remitted to the court below so that the defence of the Defendants Nos. 3, 4 and 5 that lot No. 36 of sch. Ka and lots Nos. 10, 28 and 32 also of that schedule and lot No. 2 of sch. Kha are their separate properties may be properly investigated in accordance with law.

It is to be observed, however, that as the Plaintiff''s suit has been dismissed by the learned Subordinate Judge with regard to interests Nos. 4 and 6 of lot No. 36 of sch. Ka upon the finding that these interests are not covered by the Plaintiff''s kabalas, Exs. 1 and 1(a), and as we have already affirmed that part of the decision of the learned Subordinate Judge, the fresh enquiry on remand in respect of this lot No. 36 must be confined to the other parts of that lot.

The last contention of the Appellants would, therefore, succeed in part. In the special circumstances of this case the parties will have liberty to adduce fresh evidence on this point, now going back on remand, and the court below will decide the same on the evidence already on the record, and such further evidence as may be adduced by the parties.

Coming now to the cross-objection of the Plaintiff Respondent, it is at once clear that no relief can be granted upon the same. The cross-objection is limited to lots Nos. 1 and 3 of Kha schedule. Those properties have been excluded by the learned Subordinate Judge, upon the findings that to lot No. 1 the joint family, with which we are concerned, has no title and in lot No. 3 certain persons, not parties to the suit, appear to be interested. On the materials before us these findings cannot be challenged, and Mr. Janah did not ultimately contest that position. Mr. Janah, however, argued that his client was entitled to a decree in respect of lot No. 4 of sch. Kha in addition to the properties for which his suit had been decreed by the learned Subordinate Judge. In our opinion, this argument of Mr. Janah cannot also be accepted. Apart from the fact that the cross-objection as already stated, was limited to lots Nos. 1 and 3 of sch. Kha, it does not appear that the learned Subordinate Judge made any error in respect of this lot No. 4 of the Kha schedule. According to him, this property is not included in the Plaintiff''s documents of title, Exs. 1 and 1(a), and his said finding is clearly supported by the said two documents. Nothing could be placed before us to show that the Plaintiff had any title to that lot No. 4, and accordingly, her suit must be held to have been rightly dismissed in respect of the said property. There is thus no substance in the cross-objection, and it must be dismissed.

The result, therefore, is that the appeal succeeds only in part and the decree of the court below is set aside and the suit remanded for rehearing in the light of the observations made in this judgment only on the question of the claim of the Defendants Nos. 3, 4 and 5 that the properties of lots Nos. 10j 28, 32 and 36 (other than interests Nos. 4 and 6) of sch. Ka and lot No. 2 of sch. Kha of the plaint were their separate properties and so not liable to be partitioned in this suit. The other findings of the learned Subordinate Judge are affirmed. As already stated, the parties will be entitled to adduce further evidence on the above question, now going back for reconsideration, and the learned Subordinate Judge will come to his decision on the said question ma the evidence already on record, and such further evidence as may be adduced by the parties.

The cross-objection is dismissed.

There will be no order for costs in this Court, either in the appeal, or in the cross-objection. Directions for costs made by the court below will, however, stand. Future costs will be in the discretion of the trial court.

Mookerjee, J.

I agree.