Sm. Chunni Debi vs Sm. Annapurna Dai and Others

Manohar Lall, J.—This is an application m revision on behalf, of a claimant whose claim to the attachment of certain property in execution of a money decree has been dismissed by the Subordinate Judge. The question for consideration is whether the learned Subordinate Judge was right in dismissing the claim upon his view that the petitioner was a benamidar.

The facts are these: Eight annas of village Dabura Khurd was purchased admittedly in the name of the petitioner Chunni Debi, who is the brother''s wife of the judgment-debtor. The sale deed shows that this property along with a small plot of land in Deoghar was purchased in her namo for Rs. 5400, the value of the village is worth Rs. 5000 or even more. The judgment-debtor is still joint with his father and brother and their family is heavily encumbered for the last several years. The decree-holder contended in the Court below that in order to defraud the just dues of the decree-holder the judgment-debtors for the last several years have been acquiring properties but the relevant deeds Were always made out in the name of their family relations and they have been making fictitious transfer of their own properties to their family members or their creatures.

The learned Subordinate Judge after examining the evidence which was offered on behalf of the decree-holder and the petitioner came to the conclusion that the indebtedness of the judgment-debtors was amply established and that it was impossible for the petitioner to advance Rs. 5400 from her own funds and he refused to believe that the petitioner, a woman of 27 years, with her husband and father-in-law living, would at all think of selling her ornaments in order to purchase this property. He points out that it is curious that neither the claimant; nor her husband, nor any other person who had concern with the family at the time of the purchase of this property has been examined by the claimant. He then points out that three witnesses have been examined on her behalf. The first witness was a servant of the vendor, now said to be a servant of the petitioner. He did not believe him because he could not have any concern with the petitioner''s affairs during the sale. The second witness was a raiyat, who said that Chunni Devi was in possession because receipts are granted in her name, but the learned Subordinate Judge did not believe him. The third witness, Ganga Bishun, was merely a servant to prove payment of consideration by Chunni Debi by selling her ornaments. The learned Subordinate Judge did not believe him either. With regard to the collection papers produced, the learned Subordinate Judge observed that "of course they are in her name and they are bound to be so in such a transaction." In the result he gave his finding that the property was actually purchased by the judgment-debtor in the name of Chunni Debi, and therefore disallowed the claim.

Mr. P.R. Das, who appears for the petitioner, argued strenuously that the learned Subordinate Judge had no jurisdiction whatsoever to decide the question of benami in a claim case, and therefore he asserted that the order must be set aside. He referred to a large number of cases of this Court and of Calcutta High Court. Most of these cases are cases of a Single Judge, and as the question frequently arises for decision, it is necessary to examine the cases at some length.

Order 21, Rule 58, Civil P.C., provides that when any claim is preferred to, or any objection is made to, the attachment of any property in execution of a decree on the ground that such property is not liable to attachment the Court shall proceed to investigate the claim; and by Rule 59 the claimant or objector is required to adduce evidence to show that at the date of the attachment "he had some interest in, or was possessed of, the property," attached. If upon the result of the investigation the Court is satisfied that such property was not, when attached, "in the possession of the judgment-debtor or of some person in trust for him...or that, being in the possession of the judgment-debtor at such time, it was so in his possession, not on his own account or as his own property, but on account of or in trust for some other person, or partly on his own account and partly on account of some other person" the Court shall release the property wholly or in part (Rule 60). But where the Court is satisfied that the property was, at the time it was attached, in the possession of the judgment, debtor as his own property and not on account of any other person, the Court shall disallow the claim (Rule 61).

These provisions make it quite clear that in order to succeed the claimant must show that he was in possession of the property on his own account and that the judgment-debtor is not in possession of the property. The Code does not provide the extent of the inquiry to be conducted and leaves that to the full discretion of the Court. In many cases the nature of the claims set up by the rival parties will indicate the questions of fact which the Court will have to decide. In order to weigh the oral evidence as to possession it may be necessary for the Court to consider the question of title incidentally but, only to enable it to come to a conclusion that the claimant is or is not in possession on his own account.

The leading case on the point is the decision of their Lordships of the Judicial Committee in Sardhari Lal v. Abbika Pershad (1988) 15 Cal. 521 Lord Hobhouse in delivering the judgment of the Board had to consider the terms of Section 280 of the then CPC and observed at page 126:

The Code does not prescribe the extent to which the investigation should go; and though in some cases it may be very proper that there should be as full an investigation as if a suit were instituted for the very purpose of trying the question, in other cases it may also be the most prudent and proper course to deliver an opinion oh such facts as are before the Subordinate Judge at the time, leaving the aggrieved party to bring the suit which the law allows to him.

I take this decision to mean that it is entirely within the discretion of the Court, who is conducting the investigation, to decide whether in the particular circumstances it would be proper for him to make as full an investigation as if a suit were instituted for the purpose.

In Monmohiney Dassee v. Radha Kristo Dass (1902) 29 Cal. 543, a case very strongly relied on by Mr. Das, Ameer Ali J., observed that in an investigation u/s 280, Civil P.C., the Court has to determine the question of possession merely, and cannot go into the question of title with respect to the property taken in attachment, and, therefore, if the possession of the person holding the property be on his own account, the fact that the judgment-debtor may have a beneficial interest or some title in it cannot be gone into. In that case the decree-holder in execution of a decree, sought to attach three pieces of Government security. Panna Lall Dassee thereupon put in a claim alleging that the security belonged to her and not to the judgment-debtor. The securities stood in her name and it was proved that she sent one of them to the bank for realizing interest due thereon and entrusted two others to her attorney for sale for the purpose of paying, with the proceeds thereof, the price of a house which she had negotiated to purchase. Evidence was also adduced to prove they were purchased with monies belonging to the claimant, and on behalf of the decree-holder it was not shown that, although the securities stood in the name of the claimant, they had in reality been dealt with and enjoyed by the judgment-debtor. Upon these facts, if I may say so, the question correctly arose for decision

whether the Government securities, which form the subject of dispute in the present proceeding, are in the possession of Sreemutty Panna Lall Dassee in trust for the judgment-debtor. If they are held by her in trust for him, the claim must be disallowed. If the claimant has possession of the Government securities in her own right, although Radha Kristo or persons deriving title under him may succeed in establishing his right to the same, it is not a matter for enquiry in this proceeding and will not affect the claim.

The learned Judge then proceeded to deal with the evidence and pointed out that it has not been shown that Radha Kristo ever realised any interest on these securities or at any time attempted to deal with them. But he alsp observes at page 547:

The question of Sm. Panna Lall Dassee''s means had certainly a bearing on the question whether the Government promissory notes in question were held by her in trust for her husband

He then proceeded to point out that the lady had means by which she could have purchased the property. At p. 548 the learned Judge observes that

under Section 280 what one has to see is apparent ownership, combined with the fact that the ownership is not in trust for the judgment-debtor

and came to the conclusion that the securities which were taken in attachment by the decree-holder were not held by the claimant in trust for the judgment-debtor. I do not take this case to decide that the question of benami in no case can be gone into in an enquiry under Order 21, Rule 58 to 61, but on the other hand it supports the view that a decision on this question will help to decide the material question, namely whether the claimant was in possession on her own account or on account of the judgment-debtor. It may be observed that possession is a serious element to consider in deciding a benami character of a transaction.

The other Calcutta cases relied on merely follow this decision.

Ram Kishun Singh and Others Vs. Damodar Proshad and Others, . Das J. observed at page 108:

It has been held in a series of cases that in a claim case arising under Order 21, Rule 58, the Court is not entitled to go into a question of benami.

But this observation must be read with the other remarks in which the High Court pointed out that the finding of the learned Subordinate Judge in this case that the applicant was the benamidar of Kali Prasad was based on reasons which were entirely speculative.

Anand Prasad Vs. Gopal Das and Another, . In this case Sen J., after examining the evidence in the case accepted the argument of the counsel for the petitioner that

although the learned Subordinate Judge has purported to address himself to the question of possession, yet in point of fact what he has really done is to direct his attention primarily to matters other than those falling within the scope of a claim case under Order 21, Rule 58. The only reason why the learned Subordinate Judge could possibly come to the conclusion that he has is that he was really obsessed with the idea that there was a benami transaction underlying the whole affair, and acting from this point of view he has brushed aside and disregarded the evidence as to possession.

He points out that with regard to some properties, Nos. 7, 8 and 9, the tenants who were in occupation of the bungalows have come and given evidence to support that the claimant was in possession since January 1926, and all that the learned Subordinate Judge had done was to point out that the evidence of these witnesses did not show into whose hands the rent actually came. With regard to the properties, Nos. 5, 6, 10, 11 and 12, there was abundant oral and documentary evidence which satisfied the learned Judge that it was quite sufficient to establish possession in a claim ease. With regard to lots 1, 2, 3 and 4 again the learned Judge found that the prima facie evidence of possession was quite satisfactory. Similarly, with regard to other lots, the learned Judge found that evidence of possession was given but the learned Subordinate Judge disregarded the evidence on unsatisfactory ground. In the end it was observed at page 680:

But it seems quite clear to me that the learned Subordinate Judge has in disregarding all this evidence of possession really been influenced by several considerations. The first is the relationship between the petitioner and the judgment-debtors. The second is the allegation that the sale was only a paper transaction and that no consideration passed. In other words, although the petitioner was the ostensible owner the real owners were the judgment-debtors. Thirdly, the petitioner and the two judgment-debtors might be members of a joint family.... Lastly, there is the suspicion that there must have been some transaction behind the scenes which would, if disclosed, show that the transfer of January 1926, was a transfer in fraud of creditors.

It seems to me that this case is a case on its own facts which were so strong that the learned Judge in the High Court felt constrained to disregard the decision of the learned Subordinate Judge when he refused to believe the abundant evidence of possession apparently on unsatisfactory grounds and chiefly because ho was obsessed with the idea that there was a benami transaction or something behind the scenes which had not been disclosed with regard to the transfer of January 1926.

Ganesh Lal Sarawagi Vs. Mahabir Sahu and Another, , Fazl Ali J. (as he then was) considered a number of eases which deal with this question and deduced the following principles: (1) That in a claim case under Order 21, Rule 58, the Court must come to a finding as to whether the claimant had at the, date of attachment some interest in or was possessed of the property attached. (2) That when the Court is satisfied that the property was in possession of the claimant it must be found whether he held it on his own account or in trust for the judgment-debtor. (3) That in certain cases in order to determine whether the claimant is in possession on his own account or on account of the judgment-debtor, it may be necessary incidentally to go into the basis of the claim put forward by the claimant. If I may respectfully say so, I entirely agree with the principles so deduced.

In Musammat Sunder Koer Vs. Janki Das Kandhya Lal, , Wort J. pointed out that although possession is the only question for decision of Court in a proceeding under Order 38, Rule 8, but if it is impossible for the Munsif to determine that question before him having regard to the circumstances of the case without going into the question of title he cannot be debarred from so doing, and if he does so, he cannot be said to have exceeded his jurisdiction.

Janki Mahton Vs. Baij Nath Prasad Singh and Others, . Kulwant Sahay J. pointed out that in that case the learned Munsif considered certain circumstances appearing from the Oral evidence and appeared to be under the impression that the petitioner was not the real purchaser but he was a mere benamidar for the judgment-debtor, and then said: "No such case appears to have been made in the papers which are on the record of this case" and later on he examined the evidence and states:

Here we have got a document, namely, Ex. I which on the face of it shows that the present claimant purchased the land, which he now claims in execution of a rent decree obtained by the predecessor-in-interest of the present decree-holders against the present judgment-debtor. This was a fact which ought to have been considered in considering the question whether his claim in the present case is a just claim or not. If the Court before whom the evidence was produced does not consider the evidence, and decides the case on certain probabilities appearing from the oral evidence, his decision is liable to be revised by this Court.

This case does not support Mr. Das that the question of benami cannot be gone into in such a proceeding in order to weigh the actual oral evidence of possession of the claimant and the nature of that possession.

Mrs. M.d''Silva v. Mrs. Minnie Lal AIR 1935 Pat. 267:

Now, the question therefore for the Judge in the '' Court below was the possession of the judgment-debtor or some person in trust for him. It is true that the Court found that some person other than the judgment-debtor was in possession. It, therefore, became necessary to determine whether that person was in possession for the judgment-debtor, and in many cases of that kind it is often necessary to go into the question if that possession was the result of a purchase and whether the purchase was a benami purchase or not. Mr. De went so far as to say that in no circumstances could the question of benami be gone into. But the very case relied upon disposed of that argument.

The learned Judge then referred to the case in Sardhari Lal v. Ambika Pershad. (1988) 15 Cal. 521 which I have already noticed above and then observed:

Therefore, I clearly come to the conclusion that there was no doubt that the Judge had jurisdiction to go into the question of whether the possession of Mr. Smith, the receiver, was the possession of the judgment-debtor or not. If it had been the possession of the judgment-debtor then prima facie the claim would fail.

In dealing with the case in Kristamma Naidu v. Chapa Naidu. (1994) 17 Mad. 410 (F.B.), cited before him the learned Judge observed:

It is often a very difficult question as to what is to be considered to be the possession of the receiver: whether it is the possession of one person or another person is by no means an easy question.

Jhunabati v. Kameshwar Singh Bahadur (1939) 6 B.R. 696. Dhavle J. examined some of the cases noticed by me above and observed that the learned Subordinate Judge should not have allowed the parties to go into the question of benami--as he has done in substance--in these proceedings "to the practical rejection of the direct evidence of possession." I quote some of his observations which were strongly relied by Mr. Das:

The claimants were after all merely advancing claims under Order 21, Rule 58 and not bringing title suits. If a claim ease is treated as a title suit, the claimant is taken by surprise, and if the claim case is dismissed, the onus on him in the suit that he may have to bring under Order 21, Rule 63 would be rather heavier than in an ordinary title suit.

The last part of these observations would require further consideration on another occasion in view of the observations of Sir George Lowndes in AIR 1938 290 (Privy Council) . He then goes on:

There was no evidence worth the name, as far as one can gather from the judgment of the learned Subordinate Judge, adduced by the opposite party as regards the possession of anybody but the claimants. There were allegations from persons who had very little to do with the village that Gangota residents were in cultivating possession; but none of these was called for the opposite party. That evidence was plainly insufficient to warrant the rejection of the positive evidence adduced on behalf of the claimants on meticulous criticism that might have been entirely appropriate in a title suit. But it should have e been borne in mind that this was not a title suit but a claim case (or set of claim cases). It appears on the face of the judgment, together with what I have gathered from the Bar, not only that the learned Subordinate Judge approached the evidence from the wrong point of view, but also that there was no evidence of possession on behalf of the opposite party which was even comparable with that produced for the claimant.

In the earlier part of the judgment the learned Judge had pointed out that

as regards actual possession the claimants produced their collection papers, called some tenants besides the purchasers themselves, and produced receipts. One would have thought that this was good, prima facie evidence of possession; but the learned Subordinate Judge disbelieved the witnesses on various, grounds after his elaborate conclusion that the recitals in the sale deeds as regards the payment of consideration were not satisfactorily shown to be correct.

He also points out:

Ordinarily the finding as regards possession would as a finding of fact be conclusive in these proceedings; but it is remarkable that while the Subordinate Judge subjected the evidence adduced by the claimants on the question of possession to a minute scrutiny and declined to accept it because of his view regarding the sale deeds, he proceeded in substance to accept without any scrutiny whatsoever the oral testimony adduced on behalf of the decree-holder that Gangota residents cultivate the land of the village on batai and divide the produce with the vendors in respect of their shares.

Here again the learned Judge interfered in revision because the judgment of the Court below on the question of possession was unsatisfactory. Upon this somewhat lengthy review of the case law, I come to the conclusion that the proper mode of investigating the question of possession of a claimant in a proceeding under Order 21, Rule 58 to 61 is that pointed out by their Lordships of the Judicial Committee in Sardhari Lal v. Ambika Pershad. (1988) 15 Cal. 521 and by Fazl Ali J. (as he then was) in Ganesh Lal Sarawagi Vs. Mahabir Sahu and Another, . I emphasise the third proposition deduced in the last case that in certain cases in order to determine whether the claimant is in possession of the property on his own account or on account of the judgment-debtor it may be necessary to go incidentally to the basis of the claim put forward by the claimant. The basis of the claim may be alleged by the other side to be a benami transaction. But I desire to impress upon the Subordinate Courts that they are expected to decide the question of possession upon a fair review of the oral and documentary evidence in the case, and that they should consider the question of title only incidentally in order to assist them in weighing the contradictory evidence of possession which is adduced in the case on behalf of the parties. In every case real attempt should be made to decide upon the question of possession having , in view all the attendant circumstances, and the decision should not be arrived at in such a way as to leave the aggrieved party with the impression that the Court has dealt with the question of possession in a perfunctory manner being carried away by mere surmises and conjectures.

Applying these principles to the facts of this case, I am satisfied that the learned Subordinate Judge has in substance decided that possession in this case was not with the lady who was merely a name lender in the sale deed, and as neither she nor her husband or any person who had concern with the family at the time of the purchase of the property was examined on her behalf, the evidence of possession given on her behalf was wholly unreliable and all that can be said was that some collection papers were in her name, but the Court disbelieved the oral evidence of her possession and found that possession was really with the judgment-debtor notwithstanding the name of the vendee in the sale deed.

For these reasons I would dismiss this application with costs. Hearing fee two gold mohurs.

Fazl Ali C.J.

I agree.