Umarani Sahoo vs Rajani Kanto Pal

A.N. Sen, J.—One Akshaya Kumar Pal, since deceased (hereinafter referred to as the deceased or Akshaya), was the original Plaintiff in this suit. Akshaya by his first wife had a daughter of the name of Umarani who happens to be the present Plaintiff in the suit. After the death of his first wife Akshaya married one Parulbala, who was the second wife of Akshaya and who had no issue. Premises No. 100 Tarak Pramanik Road (hereinafter referred to as the said premises) forms the subject matter of the dispute in the present suit. The said premises, it appears, had been originally purchased in January 1944 in the names of Rajani Kanta Pal, Kamala Kahta Pal and Birendra Kanta Pal, the Defendants Nos. 1, 2 and 3, who conveyed and transferred the said property by a registered deed of gift dated July 6, 1946, to Parulbala, wife of Akshaya. The Defendants Nos. 1, 2 and 3 happen to be the brothers of Parulbala and also of Dalimbala, the Defendant No. 4 herein, and Dalimbala Dasi is a sister of Parulbala. Parulbala appears to have executed a deed of settlement on December 26, 1952, and by and under the said deed of settlement Parulbala appointed herself and her sister Dalmibala as the trustees and conveyed the said premises No. 100 Tarak Pramanik Road in trust for the objects mentioned in the said deed of settlement. The main provisions of the said deed of settlement appear to be that Parulbala and her sister Dalimbala would be the trustees under the said trust and Parulbala and Akshaya would have life interest in the property and after the death of Parulbala the property, namely the said premises No. 100 Tarak Pramanik Road, would go to Dalimbala absolutely. Parulbala died on December 18, 1953. The present suit was instituted by Akshaya on December 6, 1954.

Akshaya instituted the present suit for a declaration that Akshaya was the real owner of premises No. 100 Tarak Pramanik Road and the Defendants Nos. 1, 2 and 3 and Parulbala, the wife of Akshaya, were the benamders of Akshaya, for a declaration that the purported deed of settlement dated December 26, 1952, executed by Parulbala, is invalid, inoperative and of no effect, for cancellation and delivery up of the said deed of settlement and for other relief�s. The materials averments in the plaint on the basis of which Akshaya filed this suit may be indicated. In para. 1 of the plaint Akshaya describes the nature of relationship between the parties. In para. 2 Akshaya states that he being a person of very extravagant nature intended to purchase a house property in the benami name of his wife Parulbala, the idea being to preserve such property in the benami name of his said wife. In paras. 3, 4 and 5 of the plaint it is alleged that Akshaya was an illiterate person and instructed the Defendants Nos. 1, 2 and 3 who were the brothers-in-law of Akshaya and in whom Akshaya had implicit faith and confidence to purchase the premises No. 100 Tarak Pramanik Road in the benami name of his wife Parulbala and he made over to his wife Parulbala and the Defendants Nos. 1, 2 and 3 a total sum of about Rs- 11,000 by January 3, 1944, to cover the costs and consideration money for the purchase of the said premises No. 100 Tarak Pramanik Road. It is stated in para. 6 of the plaint that the Defendants Nos. 1, 2 and 3 represented to Akshaya that the said premises No. 100 Tarak Pramanik Road had been purchased in the benami name of his wife Parulbala Pal, and in para. 7 of the plaint it is alleged that in or about the middle of the year 1946 Akshaya discovered that the said premises was purchased in the joint names of the Defendants Nos. 1, 2 and 3 in breach of the aforesaid instructions and/or request of Akshaya. It is averred in paras. 8, 9 and 10 of the plaint that thereafter Akshaya asked the said Defendants Nos. 1, 2 and 3 to re-convey the said property to the said Parulbala Pal and threatened the said Defendants that, unless such transfer was effected, he would take appropriate proceedings against the said Defendants and thereupon the said Defendants Nos. 1, 2 and 3 entreated the said Akshaya not to take any proceedings against them and promised to re-convey the said premises to the said Parulbala Pal and the said Defendants on or about July 6, 1946, purported to execute a deed of gift in favour of Parulbala Pal in respect of the said premises No. 100 Tarak Pramanik Road. It is further alleged that Akshaya Pal being an illiterate person could not and did not understand the contents of the said deed of gift and not being versed in legal technicalities agreed to that course in good faith and under the bona fide belief that such transfer would sufficiently protect his right, title and interest in respect of the said premises No. 100 Tarak Pramanik Road. In para. 11 of the plaint it is alleged that the said Akshaya Pal at all material times and until his death was in possession and enjoyment of the said premises No. 100 Tarak Pramanik Road as owner thereof and the said premises was purchased with Akshaya''s money and the same stood in the benami name of Parulbala, wife of Akshaya. In paras. 12 and 13 of the plaint it has been alleged that Parulbala died intestate on or about December 18, 1953, leaving Akshaya, her husband, as her heir under the Dayabhaga School of Hindu Law, and since the death of Parulbala, Akshaya had been enjoying the said premises No. 100 Tarak Pramanik Road as before until his death on May 18, 1957. In paras. 14, 15 and 16 it has been stated that immediately after the death of Parulbala, Dalimbala, the Defendant No. 4, has been alleging that she is a trustee under a deed of settlement dated December 26, 1952, purported to have been executed by Parulbala and, as such, the said Defendant No. 4 is setting up a title to the said premises and the rents thereof. After December 18, 1953, Akshaya had made enquiries and had come to know for the first time that the Defendants in collusion and conspiracy with each other had made various false and untrue allegations in the said deed of gift dated July 5, 1946, made by the Defendants Nos. 1, 2 and 3 in favour of Parulbala and following particulars of the alleged false and untrue statements are mentioned in para. 15:

(a) That premises No. 100 Tarak Pramanik Road was alleged to have been purchased with the money of the Defendants Nos. 1, 2 and 3.

(b) Akshaya had not sufficient love and affection for his wife Parulbala.

(c) Parulbala was entitled to transfer the said premises in any way she liked.

It has been further alleged that Akshaya also came to know that the Defendants in collusion and conspiracy with each other had procured a deed purported to be a deed of settlement said to have been executed by Parulbala taking advantage of Akshaya''s illiteracy and trust in them. In paras. 17, 18 and 19 of the plaint it has been stated that Akshaya intended to purchase the said premises in the benami name of his wife Parulbala for Akshaya''s benefit, but the Defendants Nos. 1, 2 and 3 in breach of specific instructions from Akshaya purchased the said premises in their own names and thereby became the bemmder and /or trustee of Akshaya in respect of the said premises, and the Defendants Nos. 1, 2 and 3 were in fiduciary relationship with Akshaya and, as such, were bound to discharge their duties faithfully and according to the instructions of Akshaya and for Akshaya''s benefit. It is further averred that Parulbala was the benamders and/or trustee of Akshaya in respect of the said premises No. 100 Tarak Pramanik Road and, as such, she had no right, title or interest of her own in the said premises which she disposed of by the alleged deed of settlement, and the further allegation is made that Parulbala was a pardanasin lady of weak intellect. In para. 20 of the plaint it is alleged that the purported deed of settlement dated December 26, 1952, if genuine, had been procured by the Defendants from the said Parulbala Pal without giving her opportunity to have independent advice to consult Akshaya Pal and/or by exercise of undue influence. In paras. 21 and 22 it was alleged that the Defendant No. 4 was threatening to assert her right, title and interest under the purported deed of settlement dated December 26, 1952, and was thereby denying and were interested to deny the right, title and interest of Akshaya in the said premises as the owner there-. of and in the circumstances stated above Akshaya''s right, title and interest as owner of the said premises is in jeopardy and the said purported deed of settlement dated December 26, 1952, should be declared invalid, inoperative and of no effect and should be delivered up and cancelled. On the basis of the aforesaid material averments Akshaya instituted this suit on December 6, 1954, for the relief�s, namely, for a declaration of Akshaya''s title as owner of the said premises and that the Defendants Nos. 1, 2 and 3 and Parulbala were benamders of Akshaya, for declaration that the purported deed of settlement dated December 26, 1952, executed by Parulbala is invalid, inoperative and of no effect and for cancellation and delivery up of the same.

Akshaya died in the year 1957 when the suit was pending in this Court. After the death of Akshaya, Umarani, his married daughter and only child, substituted herself in place of Akshaya as Akshaya''s only heir and legal representative in the suit with consequential amendments in the plaint and the records of the present proceeding. Umarani, as the present Plaintiff, is prosecuting this suit which though instituted in the year 1954 has come up for disposal in the year 1969.

Two separate written statements have been filed. One joint written statement has been filed on behalf of the Defendants Nos. 1, 2 and 3, the brothers of Parulbala and brothers-in-law of Akshaya-A separate written statement has been filed on behalf of the Defendant No. 4, Dalimbala Dasi, who happens to be a sister of Parulbala. In the written statement filed on behalf of Rajani Kanta Pal, Kamala Kanta Pal and Birendra Kanta Pal, the Defendants Nos. I, 2 and 3 herein (hereinafter referred to as the Pal Defendants), these Defendants have in substance and effect denied the allegations made by Akshaya in the plaint and have denied and disputed Akshaya''s claim of ownership of the premises No. 100 Tarak Pramanik Road. These Defendants in para. 2 of the written statement admit that Akshaya was a person of extravagant nature and was an illiterate person. These Defendants have denied that Akshaya made over a sum of Rs. 11,000 or any other sum to these Defendants or to Parulbala and these Defendants have also denied that these Defendants made any representation to Akshaya as to purchase of the property in the benami name of Parul as alleged in the plaint. These Defendants in the written statement made in the case that these Defendants law-fully out of their own money purchased the said premises No. 100 Tarak Pramanik Road by a registered deed of conveyance dated January 3, 1944, and these Defendants thereafter by a registered deed of gift dated July 6, 1946, made a gift of the said premises to Parulbala. These Defendants deny that the said deed of gift was executed by these Defendants in favour of Parul under any threat from Akshaya or to protect and safeguard Akshaya''s alleged right or title or interest in the said premises. It is the case of these Defendants that the said deed of gift was executed by these Defendants in favour of their sister Parulbala for the consideration mentioned in the said deed and the said deed of gift was duly executed and acted upon by the said Parulbala Pal and Akshaya at all material times had full knowledge of the aforesaid facts. These Defendants state that since July 6, 1946, the said Parulbala Pal was in full enjoyment and possession of the said premises arid that Akshaya used to live in the said premises with his wife Parulbala who had allowed Akshaya to reside at the said premises with her. These Defendants make the further case that by a registered deed of settlement dated December 26, 1952, the said Parulbala duly and lawfully conveyed and transferred and assigned the said premises to herself to Dalimbala, the Defendant No. 4 herein as trustee upon the trusts mentioned in the said deed and since December 26, 1952, the said premises was held by the said Parulbala Pal and the Defendant No. 4, Dalimbala Dasi, as trustees thereof upon the said trusts and it is also the case of these Defendants that Akshaya had full knowledge of these facts. These Defendants have stated that the said deed of settlement dated December 26, 1952, is a valid binding document. In substance and essence these Defendants deny Akshaya''s claim of ownership of premises No. 100 Tarak Pramanik Road and Akshaya''s case as to purchase of the said property in the benami name of his wife Parulbala and these Defendants make the case that the said premises No. 100 Tarak Pramanik Road was purchased by these Defendants with their own money and these Defendants made a gift of the said property to their sister Parulbala who subsequently created a trust in respect thereof.

The written statement filed on behalf of Dalimbala Dasi is substantially on the same allegations on the basis of which the written statement of the Pal Defendants has been filed. In para. 14 of the written statement of Dalimbala Dasi, she has further stated that by a registered deed of settlement executed on or about 26th of December, 1952, the said Parulbala Pal duly granted, conveyed, transferred and assigned the said premises to herself and this Defendant as trustees upon the trust mentioned in the said deed. Since 26th of December, 1952, and until the time of her death the said Parulbala and this Defendant duly held the said premises as trustees under the said deed of settlement and since the death of the said Parulbala this Defendant is holding the said premises as trustee upon the said trusts. This Defendant states that the said Parulbala Pal had duly executed the said deed of settlement and the same is valid and binding. In para. 15 of the written statement this Defendant further states that the Plaintiff at all material times had full knowledge of, inter alia, the following facts:

(a) About the said deed of settlement dated the 26th of December, 1952.

(b) That since the 26th of December, 1952, this Defendant and the said Parulbala Pal duly held the said premises as trustees under the said deed of settlement.

(c) That since the death of the said Parulbala Pal this Defendant has been and is still now holding the said premises as trustees under the said deed of settlement.

This Defendant also makes the case that Parulbala Pal was the absolute owner of the said premises and she had duly and lawfully executed the said deed of settlement out of her free will and after fully understanding the contents and effects of the said deed and the said deed of settlement was duly acted upon by the said Parulbala Pal. The following issues were settled:

(1) Did Akshaya Kumar Pal request and/or instruct the Defendants Nos. 1, 2 and 3 to purchase the premises No. 100 Tarak Pramanik Road in the benami name of his wife Parulbala Pal as alleged in para. 4 of the plaint ?

(2) Did Akshaya Kumar Pal pay to the Defendants Nos. 1, 2 and 3 and Parulbala Pal a sum of Rs. 11,000 as alleged in para. 5 of the plaint ?

(3) Did the Defendants Nos. 1, 2 and 3 make representation to Akshaya Kumar Pal that premises No. 100 Tarak Pramanik Road had been purchased in the benami name of Parulbala Pal as alleged in para. 6 of the plaint ?

(4) Was Akshaya the real owner of the property in the suit, namely, premises No. 100 Tarak Pramanik Road and was his wife Parulbala Pal a mere benamdar of the said Akshaya Kumar Pal ?

(5) Is the deed of settlement dated the 26th of December, 1952, valid and binding ?

(6) Is the suit barred by limitation ?

(7) To what relief�s, if any, is the Plaintiff entitled ?

Evidence, oral and documentary, have been adduced on behalf of the parties. The documentary evidence relied on by the Plaintiff consists of entries in the books of the business of which Akshaya was a partner, receipted Corporation rate bills and correspondence. The Defendants rely on the original conveyance, the deed of gift, the deed of settlement, a will said to have been executed by Parulbala Pal on July 9, 1949, correspondence, Corporation rate bills, proceedings before the Rent Controller and the Corporation'' of Calcutta. Some other documents to show the financial position of the Pal Defendants have also been exhibited.

On behalf of the Plaintiff four witnesses have been examined. The first witness to be called was Kanchan Kumar Pal, a nephew of Akshaya and son of one Gobindalal Pal, younger brother of Akshaya Kumar Pal. The examination-in-chief of this witness commenced on July 22, 1969, and had not concluded when the Court rose for the day. This witness unfortunately was not present in the Court when the case was called on the next day. I waited for this witness to turn up for about half an hour, but as the witness did not turn up, Mr. P. K. Sen, learned Counsel for the Plaintiff, asked for leave to interpose another witness. In view of the predicament in which Mr. Sen was placed, the counsel for the Defendants agreed to such a course and I granted leave to Mr. Sen to call his next witness. Mr. Sen thereupon called Umarani Sahoo, daughter of Akshaya and the present Plaintiff in the suit. Kanchan Kumar Pal, however, turned up later and apologized to Court and he was examined after the evidence of the Plaintiff Umarani Sahoo had concluded. After the evidence of Kanchan Kumar Pal, Sudhir Chandra Patitundi a retired Bank employee who was for sometime a tenant in respect of the premises in suit, was examined. The last witness to be called on behalf of the Plaintiff was Jiban Krishna Sahoo, husband of the Plaintiff and son-in-law of Akshaya.

On behalf of the Defendants four witnesses were examined. Rajani Kanta Pal, the Defendant No. 1, was called first. After Rajani, Nirmal Krishna Bannerjee, a lawyer practicing in Alipur who had prepared the deed of gift dated July 6, 1946, gave evidence Ajendra Krishna Ghosh, a Solicitor of this Court, who acted on behalf of the Pal Defendants in the matter of purchase of 100 Tarak Pramanik Road property and for Parulbala in the matter of the execution of the deed of settlement executed by Parul on December 26, 1952, was called next. Luxminarayan Pal, a nephew of the Pal Defendants and also of Dalimbala, was the last witness.

The evidence of the present Plaintiff, Umarani Sahoo, is really of no material consequence. She has no personal knowledge of the nature of the transaction relating to the purchase of the property in suit and she does not have any personal knowledge of any of the material issues of fact involved in the present suit. She has stated in her evidence that she heard from her father Akshaya that her father had purchased the property and she admits that apart from what she heard from her father she has no independent knowledge of the transaction and of any of the facts relating to and concerning the purchase of the property in suit. All that she heard from her father Akshaya is that Akshaya had purchased the property in suit (see Qs. 76 to 79). She has, however, deposed to the nature of her relationship with Akshaya and Parulbala and Akshaya''s relationship with Parulbala and she has stated that the relationship was very cordial. Umarani at the time of death of her own mother was of very tender age, and after the death of her mother she was taken to the house of her maternal grandfather and she was brought up by her maternal grandmother at the house of her maternal grandfather. In course of her cross-examination it was suggested to her that she used to live with her maternal grandmother and was married from that place and she had practically no relationship with Akshaya and Parulbala. This suggestion Umarani had denied. As already noticed, Umarani has, however, stated in her evidence that she does not have any personal knowledge of the fact in relation to purchase of 100 Tarak Pramanik Road premises and she has only heard from her father Akshaya that Akshaya had purchased the property. Umarani does not say a word as to how and under what circumstances the purchase was brought about and she does not say anything about the benami nature of the transaction. Umarani does not say anything also about the habits of Akshaya and she does not seek to prove any of the allegations made in the plaint. The evidence is really of no assistance in deciding any of the issues in the suit and her evidence is hardly of any consequence and importance.

The principal witness called on behalf of the Plaintiff is Kanchan Kumar Pal who is a nephew of Akshaya and is the son of Gobindalal Pal, a younger brother of Akshaya. Kanchan Kumar Pal had read upto Matriculation standard. He failed to pass the Matriculation and he, thereafter, joined the business of Akshaya. In his examination-in-chief, he has stated that when the house, namely the premises in suit, was purchased he was in charge of the business of Akshaya which he joined in the year 1347 B.S. and he had served under Akshaya for about ten years. In answer to questions put by me, Kanchan has stated that he was in charge of cash and he used to buy and sell goods and that he was an employee in the business at a salary of Rs. 40 (see Qs. 75, 76 and 77). He has, however, added that he was not working there just like an employee and was there to learn the business and, was given allowance of Rs. 40 per month. Kanchan Kumar Pal has. stated in his answers to Qs. 138, 139 and 140 that while he was associated with the business of Akshaya he was getting an allowance of Rs. 40 per month and this witness used to be paid out of the business and there must be entries in the books showing that allowance of Rs. 40 used to be paid to him. In the examination-in-chief of this witness, this witness states that Akshaya requested his three brothers-in-law Kamala Babu, Biren Babu and Rajani Babu to see a house for Akshaya which Akshaya intended to purchase and they did it and thereafter he, along with his uncle Akshaya, saw that house. According to this witness, this visit was in the latter part of the month of December 1943 and Akshaya instructed his three brothers-in-law, the Defendants Nos. 1, 2 and 3 to purchase the house in the name of Akshaya (see Qs- 28 to 31). This witness further states in his examination-in-chief that it was decided to purchase the house and a certain sum of money was advanced and an agreement for sale was executed and a sum of Rs. 2,500 was paid by Akshaya on the day when the agreement for sale was executed and the said sum was paid by Akshaya from his own fund. This witness further categorically states that the said agreement for sale was entered at their house and Akshaya gave a sum of Rs. 2,500 to his three brothers-in-law and the said three brothers-in-law in their turn paid the said sum to the owner of the house who Was selling the house (see Qs. 39, 46, 48 and 49). This witness in his examination-in-chief states that the purchase price of the property was Rs. 10,500 and the consideration money was paid by Akshaya and on the day of the registration of the document he along with his uncle Aksaya brought the amount of Rs. 8,000 from the business and came with the money and handed over the same to the three brothers-in-law of Akshaya and this sum of Rs. 8,000 was lying in the iron chest in the shop and the money was brought from there (see Qs. 40, 42 arid 46). In Qs. 55, 56, 57 and 58 this witness stated that the sum of Rs. 8,000 which was brought from the shop was in currency notes of 5, 10, and 100 rupee denominations and it is the evidence of this witness that the said money was paid by Akshaya to his brothers-in-law who took that money and took the same to the Registry office although this witness states that he was not there when the document was registered at the Registry office (see Qs. 55 to 64)- This witness in Q. 69 states that the payment of Rs. 8,000 will appear in the books of the business of Akshaya Kumar Pal because these books have to be shown to the income tax department. This witness proves the Jabda book of the business for 1350 B.S. and proves the entry of Rs. 8,000 in the said book under date January 3, 1944, and the said entry reads as follows�"Akshaya Kumar Pal from his own shop by himself and for purchase of house�Rs. 8,000." The said entry has been tendered and is marked as Ex. A(l). In Q. 100 this witness says that apart from Jabda book there were other books and the entries from the Jabda book were posted to the ''Ledger book'' which is called Khatian in Bengali. This witness has proved the entry in the Ledger book in respect of the said sum of Rs. 8,000 in the account of Akshaya Kumar Pal under date January 3, 1944. The ledger entries in the name of Akshaya Kumar Pal appear at pp. 58, 59 and 60 of the Ledger book and the entries in the said pages of the Ledger including the entry for Rs. 8,000 under date January 3, 1944, have been exhibited: Ex. B.(l). While explaining what kinds of entries are made in the Jabda book, Kanchan Kumar Pal in Q- 87 has stated �"every kind of transaction whatsoever is entered in this Book, the daily sales, the daily purchase or any amount paid to anybody or any amount received from anybody, everything is entered in this Book." In Q. 90 he has stated that the Jabda book is Cash book and also entries relating to purchase and sales are entered in this book and in Q. 91 this witness has stated that a separate Cash book was maintained and a Ledger was also maintained. This witness in examination-in-chief in Q. 116 was asked�"Do you know whether the Defendants purchased the property as instructed by Akshaya" and in answer this witness has stated�"No, not exactly in that manner." This witness then goes on to say that after about more than two years of the date of the purchase Akshaya came to know that the property had not been purchased in the manner he wanted and that the property was purchased in the names of his three brothers-in-law and that Akshaya had thereupon told his brothers-in-law and his wife�"What has happened ? The property has not been purchased as per my instruction. Do it immediately in the manner I have directed." And thereafter they transferred the property in the name of Akshaya''s wife Parulbala (see Qs. 117-123). It is the evidence of this witness that at the time of the purchase of the property there was a tenant in that house and possession of the property could not be obtained and Akshaya instituted a case against the tenant for ejectment and lost it, and thereafter this witness had advised Akshaya to enter into a compromise with the tenant (see Qs. 125 and 126). In answer to question put by me this witness states that the case was instituted'' few months after the property was purchased and before the property was transferred in-the name of Parulbala, but this witness has no idea as to in whose name the suit was filed and against whom the suit was filed (see Qs. 127-136). This witness in Qs. 145, 146 and 147 states that after obtaining possession of the premises Akshaya made some repair of the house and thereafter went to the said premises and that Akshaya spent about Rs. 5,000 to Rs. 6,000 on such repairs and that the amount of repairs came from the funds of the business. This witness has stated that the relationship between Akshaya Kumar Pal and Parulbala was very cordial and the relationship of Akshaya and Parulbala with Umarani and her family was also very pleasant and cordial. This witness has stated that as a man Akshaya was very good, but he had some extravagant habits and he had a fair amount of money. It is the evidence of this witness that Akshaya bore the marriage expenses of his daughter Umarani and the marriage of Umarani took place at 9 Kristo Das Pal Lane. This witness has also stated that Parulbala used to go on pilgrimage on occasions and Akshaya used to pay and bear all expenses of Parulbala and also all her expenses when Parulbala would go on pilgrimage. This witness has stated that he had no knowledge of a deed of settlement being executed by Parulbala, and after her death he came to know of it from Akshaya who told him about it. This witness also proved a post card said to have been written by Parulbala to Akshaya while Parulbala was away on pilgrimage asking for money from Akshaya. The said post card has been tendered and marked as Ex. C. In answer to question put by me in Qs. 190 and 151 this witness has stated that Akshaya was financially sound and he had no liability.

Kanchan Pal has been cross-examined at length. In course of his cross-examination he stated that the business which Akshaya used to carry on was a partnership business of which Akshaya and one Bipin Chandra Das Were partners and each of them had an equal share in the said business. This witness was shown the entries relating to payment of salary to him in the Ledger book of the business of Akshaya Kumar Pal and the said entries indicated that this witness used to get a salary not exceeding Rs. 19 per month. On being confronted with the said entries in the Ledger and his earlier testimony in examination-in-chief as to his getting a sum of Rs. 40 every month, this, witness sought to offer an explanation by saying that this witness used to be paid about Rs. 18 or Rs. 19 from the funds of the business and the balance sum Akshaya used to pay to him out of his own funds. The attention of this witness was drawn to his evidence in examination-in-chief wherein he had stated that this witness used to get Rs. 40 per, month from the business and there were entries in the books of the business showing payment of Rs. 40 per month to him. After trying to prevaricate this witness had to admit that the evidence that he had given in his examination-in-chief that there were entries in the books of the business showing payment of Rs. 40 was not correct (see Qs. 364-383). In course of his cross-examination this witness stated that Akshaya had told his Income tax lawyer that he wanted to purchase the property in the name of his wife and he had decided to purchase the property in the name of his wife at the time when the agreement for sale was executed. It is his further evidence in Q. 517 that�

At first he told his brothers-in-law that he would purchase the property in his own name ; but as he was a man of extravagant habit and as he had other bad habits, often he would return to his own house late, that is why the brothers-in-law instructed him that he should not purchase the property in his own name so that anybody may have it transferred from him. Therefore, it was better for him to purchase the property in the name of his wife.

It is the evidence of this witness that Akshaya had changed his mind and decided to purchase the property in the name of his wife under the advice of his brothers-in-law (see Qs. 515-518). This witness was shown the original conveyance dated January 3, 1944, in respect of premises No. 100 Tarak Pramanik Road executed by Harendra Krishna Laha in favour of the Defendants Nos. 1, 2 and 3 and his particular attention was drawn to the memo, of consideration mentioned in the said document. The memo, of consideration indicates that a sum of Rs. 10,500 was paid by 10 pieces of 1000 rupee note each, the numbers of which are stated in the said memo., 3 pieces of note of Rs. 100 each, earnest money paid Rs. 101, small notes and coins paid Rs. 99. Attention of this witness was drawn to his evidence in examination-in-chief that the sum of Rs. 8,000 was paid on that day by Akshaya in Government currency notes of 10 rupee, 5 rupee and 100 rupee denominations and his explanation was asked for as to how the consideration money could be paid in the manner indicated in the memo, of consideration. This witness sought to offer an explanation by saying that he had not accompanied the three brothers-in-law of Akshaya to the Registry office and the brothers-in-law on their way might have changed the notes given to them by Akshaya.- With regard to the entry of Rs. 8,000 in the books of the business of Akshaya Kumar Pal showing payment of the said sum to Akshaya for purchase of a house this witness in course of his cross-examination was asked to find out any other entry in respect of any payment to Akshaya or the other partner which would indicate the purpose of such payment. Kanchan Kumar Pal sought to explain the nature of the entry by saying that the said entry in that particular form was made� in the books on the advice of the income tax lawyer. It is the positive testimony of this witness that the entry in that form in the books of the business was made on the advice and under the instruction of the income tax lawyer of Akshaya. He is, however, unable to explain why the purchase has been mentioned in the books in case of the entry relating to the payment of Rs. 8,000 and not in case of payment of the other sum of Rs. 3,000 which, according to him, had been paid to the three brothers-in-law earlier and he also cannot point out any other entry or entries which may be connected with the payment of the said sum of Rs. 3,000.

Kanchan Kumar Pal was cross-examined as to realisation of rents from tenants and payment of Corporation rates and taxes in respect of the said premises No. 100 Tarak Pramanik Road after the purchase thereof. He is not in a position to say as to whether any letters of adornment were issued in favour of Parulbala after the purchase of the said property. He says that rents used to be collected by Parulbala through her brothers, but when he is asked as to how Parulbala could sign any rent receipt in respect of the said property as the property was hot purchased in the name of Parulbala and was purchased in the name o� the three brothers-in-law of Akshaya, he is not in a position to give any proper answer and only says that Akshaya had not told him about that. When he is asked with regard to his evidence in examination-in-chief that a suit had been instituted by Akshaya against the tenant Karilal Das, as to how any suit could be instituted by Akshaya or Parulbala in the name of Parulbala as the property had been purchased in the names of the three brothers-in-law of Akshaya, he realizes his difficulty and seeks to avoid the same by saying that the three brothers-in-law of Akshaya used to do everything and Akshaya did not tell him anything about where the suit had been instituted and in whose name the suit, had been instituted. His evidence in course of cross-examination with regard to payment of Corporation rates and taxes is equally unsatisfactory. As has already been noted, the evidence of Kanchan Pal in his examination-in-chief was that Akshaya paid the Corporation rates and taxes since the purchase of the house (see Qs. 97-99). He, however, says later on that Akshaya used to pay the necessary money to his brothers-in-law and they used to pay that money to the Corporation. When asked as to how the brothers-in-law would know when the Corporation rates and taxes would be payable as the bills would come to Parulbala, this witness says that at that time there was no fixed rule that the bailiff of the Corporation would bring rate bills to the proprietor of the property and would hand over the same to anybody who would represent the proprietor. When asked further how the bailiff of the Corporation would know who the brothers of Parulbala were, this, witness stated that the bailiff of the Corporation would know all of them as they were residing in the same locality and would hand over the rate bills to the brothers. This; witness further seeks to create an impression that Akshaya and this witness were not concerned at that time as to who would accept the rate bills and who would pay the amount of the rate bills and they only paid the money to the brothers-in-law (see Qs. 540-549). This witness further seeks to convey the impression that whenever the Corporation rates and taxes were payable he would bring the money from the shop, although it might be the case that he did not bring the exact amount but something more than that amount. He was asked to point out any entries in the books of the firm which would go to indicate that the Corporation rates and taxes were paid from the business of the firm and this witness stated that there were no entries in the books of the firm which would indicate payment of the Corporation rates and taxes out of the moneys of the firm. This witness was told that the amount of Corporation rates and taxes in 1943-44 was only Rs. 7:4-6 and was asked why it would be necessary for, Akshaya to get money from the funds, of, the business for payment of the paltry sum every time and this, witness says in answer that although Akshaya had money with him, but in spite, pf that fact when he would, go out of the house he would often send words to this witness and ask this witness to send money for paying the Corporation rates and taxes and to meet other expenses (see Qs. 606-629). This witness in his evidence in examination-in-chief in Q. 117 stated that Akshaya came to know after about more than two years of the date of the purchase of the property that the property had not been purchased in the manner he wanted. This witness does not say as to how and under what circumstances Akshaya came to discover the said fact. This witness was asked specifically in Q: 1146 as to how Akshaya knew that the property had not been purchased in the name of Parulbala and this witness in answers stated that he did not know how he came to know of this and Akshaya had told him after 1\\ years that Akshaya had come to know that the property had not been purchased in the name of his wife and Akshaya had told that much to him. About the evidence of this witness in examination-in-chief that Akshaya had told this brothers-in-law and his wife after discovery that the property had not been purchased in the name of Parulbala, that the property had not been purchased as per his instruction and that should be done immediately ; this witness in cross-examination has to admit that he came to know of the same as he overheard a conversation between Akshaya and his brothers-in-law in front of Akshaya''s room. It is the testimony of this witness that Akshaya did not threaten his brothers-in-law with anything after Akshaya detected that his brothers-in-law had not carried out his instructions and there was no bad relationship or tension between Akshaya and his brothers-in-law and Akshaya had felt only sorry for that. This witness was shown the) allegations made in the plaint in paras. 7, 8 and 9 thereof and when asked that Akshaya in these paragraphs in the plaint had stated just the, opposite to what this witness was saying in his evidence, this witness stated that he did not know about this and this witness had already said what he knew. This witness, however, admitted that if there was any truth in those allegations then Akshaya must have lost confidence in his brothers-in-law (see Qs. 1170-1188). It may also be noticed that when this witness was shown the signature of Akshaya in the plaint filed herein this witness would not say in a straightforward manner that the signature on the plaint was the signature of Akshaya. This witness stated that this witness does not have any personal knowledge of the deed of gift dated July 6, 1946 (Ex.6), executed in favour of Parulbala by her three brothers, the Defendants Nos. 1, 2 and 3 herein. This witness was shown the will (Ex. 24) and this witness was asked about the signatures of Parulbala and Akshaya appearing in the said document. This witness says at first that he does not recognise the signature, then adds that he does not recognise the signature correctly and ultimately says that the signatures of Prarulbala and Akshaya appearing� in the said document are not the signature of Parulbala and Akshaya.

The next witness called on behalf of the Plaintiff is one Sudhir Chandra Patitundi who was a tenant in respect of premises No. 100 Tarak Pramanik Road. This person was residing as a tenant in premises No. 9 Kristo Das Pal Lane upto 1942 and came to reside at No. 100 Tarak Pramanik Road as tenant in the month of March 1949. In his examination-in-chief in answer to Q. 59 he says that when he used to visit premises No. 9 Kristo Das Pal Lane after he had left the said premises he and his wife had much intimacy with Akshaya and his wife and Akshaya had told him that Akshaya was soon going to purchase a house and Akshaya had requested him to be a tenant as Akshaya lifted a man like the witness. In Qs. 60 and 61 this witness says that he cannot exactly remember the year in which Akshaya had said that to him but it might be in the year 1942 and 1943 and that he left Kristo Das Pal Lane in the year 1942. In Qs. 62, 63 and 64 this witness states that Akshaya had thereafter told him that Akshaya had purchased a property and that he had purchased the premises No. 100 Tarak Pramanik Road in the locality of Kasari Para and in Q. 65 this witness goes on to add that one day thereafter Akshaya told him that as there was a tenant in that premises he would take the witness as a tenant after evicting the tenant, and after making necessary repairs to that house and that Akshaya was conducting a case with the tenant. In Qs. 92, 93 and 94 this witness states that he used to pay rent to Akshaya and rent receipts would be granted both by Parulbala and Akshaya, but Akshaya would do that on rare occasions. This witness produced certain rent receipts all of which except one bore the signature of Parulbala and the other one had been signed by Akshaya on behalf of Parulbala. It is to be noted that in course of his entire examination-in-chief this witness does not; mention a word about any benami nature of the purchase of the property and the entire evidence that the witness gives in course of his examination-in-chief as to the purchase of premises No. 100 Tarak Pramanik Road by Akshaya is on the basis of what he heard from Akshaya. It is also significant to note that when this witness stated in answer to Qs. 92 to 94 that rent receipts used to be granted by Parulbala and Akshaya, no question was put to the witness as to why or under what circumstances Parulbala came to grant any rent receipts. In course of his cross-examination this witness stated in Qs. 170 and 171 that Akshaya inherited a house at Metcalf Street and some portion of a garden, but he could not keep those properties and had to sell those properties. In Qs. 220 and 221 when I asked this witness as to the time when Akshaya first mentioned to him about the purchase of 100 Tarak Pramanik Road, this witness in answer stated that Akshaya had told him that the house was purchased in the benami name of Parulbala and he further informed him that Parulbala would grant the rent receipts. In Qs. 248 to 251 this witness sought to improve upon the evidence already given and stated that both Akshaya and Parulbala had told him that the said premises No. 100 Tarak Pramanik Road had been purchased by Akshaya in the benami name of Parul. In answer to Qs. 235, 236 and 237 this witness stated that this witness considered Parulbala to be the landlord and it was for that reason Akshaya had signed the rent receipt for and on behalf of Parulbala and this witness did not accept Akshaya as the owner of the property. In Q. 238 this witness, however, seeks to clarify the position by saying that as far as this witness knew Akshaya was the owner of the house because the house was purchased with his money but legally Parulbala was the owner and that, is what this witness was told. In Qs. 252, 253 and 254 this witness states that this witness came to know that Akshaya was the owner of the property from what Akshaya had told him and this witness admits that apart from what Akshaya had told this witness, this witness had no independent knowledge as to the transaction relating to the house. In Qs. 255 and 256 this witness states that Akshaya used to collect, rent from him and used to pay the money to Parulbala after getting the same from him. This witness was asked to explain as to why this witness did not mention anything about the benami purchase in course of the examination-in-chief while the witness was giving evidence on the last day, and this witness sought, to offer an explanation that he had not stated so as no such questions were asked and he was making that statement now as such questions have been put to him. By way of further explanation he also adds�"I said these things today because I know it and by mistake I might have omitted these things". Questioned further this witness states that perhaps he was unable to understand (see Qs. 300 to 320). A document had been brought out by this witness while this witness was being asked with laggard to a petition made by this witness before the Rent Controller and this witness was asked to read the heading of the document which this witness had brought out and it transpired that the said document which the witness had brought out was a statement of his evidence to be given headed ''Statement of Sudhir Chandra Patintundi'' and this statement was prepared by a Solicitor and has been exhibited and is marked as Ex. 11 (see Qs. 327 to 329). Although this witness stated in answer to Q. 330 that the Solicitor did not; prepare the statement after having discussed the matter with the witness, he subsequently agreed that the Solicitor discussed the case with him and prepared the statement on the basis of the discussion that he had with the Solicitor and on the basis of his instructions. This witness also states that he locked two rooms of 100 Tarak Pramanik Road and� he had handed over the keys in respect of those two rooms to Umarani (see Qs. 338 to 340).

The only other witness called on behalf of the Plaintiff is Jiban Krishna Sahoo, the husband of the Plaintiff Umarani Sahoo. This witness states that his father-in-law Akshaya Kumar Pal arranged the marriage of Umarani and the marriage took place at 9 Kristo Das Pal Lane. This witness states that the relationship between himself, his wife Umarani and their children with Akshaya and Parulbala was cordial. In Qs. 32 this witness states that the financial condition of Akshaya was good and in Qs. 48 this witness states that Akshaya Babu himself used to look after the household and used to appoint servants, maid-servants and cooks and used to run the house. In Qs. 20 and 21 this witness stated that Akshaya died at 100 Tarak Pramanik Road and that house was the house of Akshaya. This witness was cross-examined as to the place where his marriage with Umarani had taken place and he was asked whether he was in a position to show any invitation card that the marriage had taken place at 9 Kristo Das Pal Lane. He was cross-examined as to how he knew that the premises No. 100 Tarak Pramanik Road belonged to Akshaya, and this witness stated in answer that it was not possible for him to say and Akshaya had informed him that he had purchased that house. This witness admits in Q. 83 that this witness has no personal knowledge whether Akshaya had actually purchased the house or not and he also adds that he did not enquire. In Q. 85 this witness categorically states that he heard only from Akshaya Babu how he had acquired the house and this witness did not have any inside information. This witness was asked about Kanchan''s presence in Court that day and that where they all went together when the Court rose for mid-day recess and this witness in answer stated that they all went to have their Tiffin. This witness was asked to offer any explanation as to why Akshaya would not seek the assistance of this witness in the matter of purchase of the property and would seek the assistance of his brothers-in-law and this witness stated that Akshaya used to consult Bipin Chandra Das who was a partner of Akshaya in his business and who was a very wise person and this witness was unwilling to entangle himself with his father-in-law''s matter. This witness has stated in answer to Q. 105 that this witness does not have any personal knowledge as to how and under what circumstances the property came to be acquired and this witness only knows what his father-in-law and his mother-in-law told him. This witness, however, does not mention anywhere as. to what his mother-in-law had said.

Before dealing with the evidence adduced on behalf of the Defendants I propose to record my impressions on the evidence adduced on behalf of the Plaintiff. The evidence of the Plaintiff and her husband Jiban Krishna Sahoo is, to my mind, of no material consequence in deciding the suit and the issues involved therein. The Plaintiff and her husband have both said that they have heard from Akshaya that Akshaya had purchased 100 Tarak Pramanik Road. They have not deposed to any fact from their personal knowledge as to the acquisition of the property or the nature of acquisition thereof and they have not mentioned a word about the benami nature of the transaction. What the Plaintiff and her husband heard from Akshaya, to my mind, is not admissible in evidence. Apart from the question of admissibility of the evidence, it will not be � proper in any event, in my opinion, to attach any particular importance or weight to the said testimony of the Plaintiff and her husband. Jiban also said in his evidence that he had heard form his mother-in-law, but Jiban does not state in his evidence as to what his mother-in-law had told him. The evidence of these two witnesses as to the nature of relationship with Akshaya and Parulbala is only of any importance, but the said evidence is not of any material assistance in deciding the question involved in this litigation. Both these witnesses have stated that their relationship with Akshaya and Parulbala were very affectionate and cordial. It is clearly established that after the death of Akshaya''s first wife, the natural mother of the Plaintiff, the Plaintiff had been brought up at the place of her maternal grandfather. The Plaintiff was only very young when her mother died and when she was removed to the place of her maternal grandfather. Although Akshaya married Parulbala some five or six years after the death of his first wife, the Plaintiff had continued to live at her maternal grandfather''s place and was not brought back to the house of Akshaya and was not placed under the care of Parul. Akshaya might or might not have arranged for the marriage of the Plaintiff and might not have borne the marriage expenses. The fact, however, remains that the Plaintiff had been brought up not at her father''s place and not; under the care of Akshaya and Parul, but had been brought up at the place of the Plaintiff''s material grandfather. This fact, to my mind, clearly indicates that the relationship of the Plaintiff with Akshaya and Parul was not the normal and natural relationship between a daughter and her parents. The character and habits of Akshaya might have contributed to this state of affair. The relationship of the Plaintiff with Akshaya and Parul might not have been inimical or bitter but, in my opinion, the relationship was not the normal relationship which generally exists between parents and their only child. The relationship of the Plaintiff and her husband with Akshaya and Parul, to my mind, was more formal than natural. The evidence of these two witnesses as to the nature of relationship between Akshaya and Parul is, to my mind, somewhat exaggerated. It is in evidence that Akshaya was addicted to drink and also had other vices and he would spend nights out. It is also in evidence that Akshaya could not retain any of the ancestral properties which came to Akshaya on partition. It is clearly established that Akshaya was living a fast live and naturally had to pay for the same and he was squandering his money. The nature, character and habits of Akshaya, to my mind, suggest that the wife Parulbala was likely to be neglected. Parulbala might not have been in dire want or distress, but there cannot be any question that she was a neglected wife and must have been an unhappy woman. I do not, however, consider it necessary to deal with this aspect at any greater length, as the question of relationship between Akshaya and Parul, or between the Plaintiff and her husband, and Akshaya and Parul, is not of any real assistance in the facts of the instant case.

The really important witness on the Plaintiff''s side is Kanchan Pal. This witness, however, created a very poor impression on me and I am unable to place any reliance on his testimony. As already noted, Kanchan Pal has stated in his examination-in-chief that he joined the business of Akshaya and was getting a remuneration of Rs. 40 per month from the business and there were entries in the books of the business showing payments of the said of Rs. 40 to him. The books of the business show that he was being paid a sum not exceeding Rs. 19 per month and when confronted with the said entries he stated that he was receiving Rs. 19 from the business and Akshaya used to pay him the balance out of his own pocket. He, however, admitted that his earlier testimony that there were entries in the books showing payment of Rs. 40 to him was not correct. I would not have attached any particular importance to this kind of contradictory statement, but I feel convinced that Kanchan Pal deliberately made the said statement to create an impression that he was an important man in the business of Akshaya and that he was in charge of the business and the cash. It is to be remembered that Kanchan Pal joined the business when he was only about 18 or 20 years old for the purpose of learning business. The business was a partnership business of which Bepin was the other partner having an equal share and Bepin was in charge of the cash and was looking after the business. To my mind, Kanchan Pal made the aforesaid statement to create an impression that Kanchan Pal was the in-charge of the cash of the business and as the person in charge of the cash of the business he knew all about payments to Akshaya and in most of the cases he was paying the said sums to Akshaya. The evidence of Kanchan Pal that he was in charge of the business and was in charge of the cash does not impress me at all. Kanchan Pal, as already indicated, was only about 18 or 20 years old and was there to learn the business and Bepin Pal, the other partner, was there in the business in charge of the cash and was looking after the business regularly. Apart from the oral testimony of Kanchan Pal there is nothing to indicate that, Kanchan Pal was placed in charge of the cash or that he was in charge of the business. I see no reason why Bepin Chandra Pal, the other partner who was looking, after the business and who was in� charge of the cash, according to Kanchan Pal, before he took it over from Bepin, would agree to put Kanchan Pal, a novice in the business and of Render age in charge of cash and in charge of the business. It is Kanchan Pal''s positive testimony while he was giving his evidence in examination-in-chief that Akshaya had paid to the three brothers-in-law a sum of Rs. 3,000 in cash at the time of the execution of the agreement for sale which was executed at No. 9 Kristo Das Pal Lane and the three brothers-in-law of Akshaya paid to the vendor a such of Rs. 2,500 as earnest money, although Kanchan Pal gives this categorical evidence in course of his examination-in-chief, seeking thereby to create an impression that Kanchan Pal had personal knowledge of the entire transaction and the transaction had taken place in his presence,'' he seeks to change his evidence later on in course of cross-examination, when he says the agreement; for sale was not executed at No. 9 Kristo Das Pal Lane and he had heard from Akshaya that Akshaya had paid to his brothers-in-law Rs. 2,500 for payment of earnest money. Kanchan Pal sought to change his testimony, in my opinion, when he realised his difficulty later on. Kanchan Pal realised that the documentary evidence clearly belied his testimony, as it clearly appears from the conveyance that a sum of Rs. 101 was paid by way of earnest money and not Rs. 2,500. It was also the evidence of Kanchan Pal that Kanchan Pal had visited No. 100 Tarak Pramanik Road along with Akshaya towards the end of the year 1943 and the agreement for sale had been executed thereafter and the money was paid at that time. He also states at other place that the agreement for sale was executed sometime in the first week or the middle of December. The evidence of the Solicitor Ajen Ghosh and the entry in his day book clearly establish that the agreement for sale was executed at the office of the Solicitor on December 1, 1943. I am clearly of the opinion that Kanchan Pal had no knowledge of the agreement for sale and when and where the same was" executed. He, however, sought to create an impression that he knew of the payment of the sum of Rs. 3,000 by Akshaya to the three brothers-in-law only for the purpose of relying on an entry in the books of the business showing a payment of Rs. 8,000 to Akshaya and for the purpose of making out the case of payment of the total sum of Rs. 11,000 to the three brothers-in-law for the purchase of the property. The further evidence of Kanchan Pal that he and Akshaya brought Rs. 8,000 from the till of the business at Khangraputti to the house at 9 Kristo Das Pal Lane where the three brothers-in-law of Akshaya were waiting and paid the money to the three brothers-in-law is equally unacceptable. Kanchan Pal has stated that the said sum of Rs. 8,000 which was brought from the till of the business at Khangraputti was in bundles of 5 rupee and 10 rupee denomination notes which were paid to the three brothers-in-law and the three brothers-in-law with the money went to the Registry office. When his attention was drawn to the memo, of consideration in the conveyance which indicated that a sum of Rs. 10,399 was paid and the payment was made mostly by thousand rupee notes, he said that he did not accompany the brothers-in-law to the Registry office and sought to offer an explanation that the brothers-in-law might have changed the notes. This explanation is clearly an after-thought and was offered with the object of getting himself out of the difficulty. I am unable to understand why there should be any necessity of bringing the money from the business place to No. 9 Kristo Das Pal Lane for making payment to brothers-in-law. The Registry office is nearer to the place of business and there appears to be no sense why money was to be brought from the place of business to the house for payment to the brothers-in-law. There does not appear to be any sense why the brothers-in-law would change the said notes before taking the money to the Registry office, if in fact Rs. 8,000 in currency notes of 5 rupee and 10 rupee denominations were paid to the three brothers-in-law. The entry in the Jabda book of the business which Kanchan Pal sought to prove and on which the Plaintiff seeks to rely cannot, in my opinion, at all be depended upon in the facts of the instant case. I have no hesitation in coming to the conclusion that Kanchan Pal has no personal knowledge of the transaction recorded in the said entry. It is to be noted that on that date a sum of Rs. 10,399 was paid as the consideration money to the vendor and the said entry of Rs. 8,000, therefore, is of no assistance unless an earlier payment of Rs. 3,000 by Akshaya to the brothers-in-law can be established. I have already observed that there is no evidence to show that Akshaya had paid to the three brothers-in-law a sum of Rs. 3,000 on any earlier occasion and the testimony of Kanchan Pal on that aspect is absolutely untrue. It may also be noted in this connection that there are no entries in the books to show payment of Rs. 3,000 to the brothers-in-law or to Akshaya for purchase of the property. The entry itself is also very peculiar and unusual. There is no entry in the books in relation to any other payments, which indicate the purpose of payment except entries in relation to payment to the partners for payment of income tax and sales tax. Kanchan Pal at first stated in his evidence that; the purpose is indicated in the entries in the books in case of any large payment. When he was shown the entry of payment of Rs. 6 000 to Bipin Pal, which appears at the very same page and immediately after the entry relating to payment of Rs. 8,000 to Akshaya, he changed his evidence and stated that only in case of entries of payment to partners for payment of income tax and sales tax, the purpose is indicated in the entry in the book. When he was further asked with regard to the entry relating to payment of Rs. 8,000 which was not a payment for paying income tax or sales tax, he stated that the entry in this form indicating purpose was made under the advice of the income tax lawyer.

He has stated that the money was taken from the till in the morning and the entry was made sometime at about 11 or 12 noon. The income tax lawyer was nowhere on the scene, and I fail to understand how under such circumstances the income tax lawyer could give any advice as to the form in which the entry had to be made in the books and his evidence that the entry in that form was made in the books under the advice of the income tax lawyer seems to be absurd. I am of the opinion that he sought to bring the income tax lawyer for supporting his evidence as to the unusual nature of the entry in the books. It is to be noted that the entry by itself really proves nothing. The entry only indicates payment of Rs. 8,000 to Akshaya for purchase of house. If the entry was intended for any income tax purpose and was made on the advice of the income tax lawyer, I see no reason why premises number in respect of which the payment was going to be made would not be stated in the entry and why in such a case the earlier payment of Rs. 3,000 in respect of the same transaction would also not be entered in the books. If this entry be compared with the immediate next entry showing payment of Rs. 6,000 to Bepin Chandra Das, it will appear that the nature of the entry is more or less identical, the lines in both the entries read absolutely alike. Only the figures are different. A comparison of these two entries, to my mind, indicates that the words ''for purchase of house'' might not originally have been there and the same might have been interpolated for the purpose of creating evidence in this suit. If the purposes were to be mentioned in the entry and were in fact mentioned in the entry when the entry was first written out, the spacing would have been different and, I am sure, the premises number would have been stated in the said entry. I am inclined to the view that, as the said words ''for purchase of house'' were put in later on in the said entry and there was no sufficient space to mention the premises, the said premises number could not be mentioned at all. In the facts of the instant case, I am unable to place any reliance of the said entry. As already indicated, the said entry by itself does not establish that Rs. 8,000 was paid by Akshaya to the brothers-in-law for purchase of 100 Tarak Pramanik Road. In the absence of any positive testimony the said entry, which is merely corroborative evidence, loses its entire significance and importance. I have already observed there is no positive testimony of payment of Rs. 8,000 by Akshaya to his brothers-in-law apart from the testimony of Kanchan Pal on which I can place no reliance. Kanchan Pal in his evidence in examination-in-chief stated that there was a tenant in the said premises No. 100 Tarak Pramanik Road when the said property was purchased and a suit for possession had been instituted for evicting the said tenant and Akshaya had lost that suit and thereafter, on the advice of Kanchan Pal, Akshaya settled the suit with the tenant and obtained possession. It is the categorical testimony of Kanchan Pal that the said proceeding against the tenant had been instituted before Akshaya had any knowledge of the fact that the property had not been purchased in the name of Parulbala. It was pointed out to Kanchan Pal that any suit against the tenant, therefore, must have been instituted in the name of Parul by Akshaya as Akshaya had no knowledge that the property had not been purchased in the name of Parul and he was asked where and in whose name the suit was instituted. Realizing the difficulty of the position this witness cleverly tried to evade the situation by saying that Akshaya had not told him where and in whose name the suit had been instituted. No document has been produced to show that any suit was instituted against the tenant for possession. The fact that the property stood in the names of the three brothers-in-law till the same was transferred by the deed of gift to Parul in July. 1946 clearly establishes, to my mind, that no suit could be instituted by Akshaya for recovery of possession of the said property against the tenant immediately after the purchase of the property in 1944 as the property did not stand in the name to Akshaya or Parul at that time. Rajani in his evidence has categorically stated that at the time of the purchase of the property there was a tenant of the name of Karilal Das and no suit against the said tenant was filed and Karilal Das himself vacated the property later on. In my opinion, the evidence of Kanchan Pal that a suit had been instituted against the tenant for possession and Akshaya had lost the suit and thereafter Akshaya compromised the suit on the advice of Kanchan Pal is clearly false and Kanchan Pal concocted the story of the institution of the suit against the tenant and his advice to Akshaya to compromise the suit with the only intention of supporting the case of ownership of Akshaya over the property and creating an impression that he had knowledge of that fact and he had something to do in that matter. I have further to note that, at the relevant time Kanchan Pal was only aged about 18 or 20 years, and it seems unlikely that Akshaya would look to him for advice in any matter of litigation. The evidence of this witness with regard to the collection Of rents from the tenant of the premises after the same had been purchased is equally unsatisfactory. The evidence of this witness that the bailiff of the Corporation would not go to the owner but would present the rate bills to any person and would collect money from him for payment of Corporation rates and taxes, is patently absurd. It is interesting to note that this witness does not say a word regarding benami purchase in course of his examination-in-chief and seeks to make out a case of the benami transaction in course of cross-examination at a later stage. The evidence of this witness in course of his examination-in-chief was merely to the effect that Akshaya had asked the brothers-in-law to purchase the property in the name of Akshaya. Realizing his mistake at a later date this witness cleverly seeks to make a case that Akshaya had originally instructed the brothers-in-law to purchase the property in the name of Akshaya, but on the advice of the three brothers-in-law Akshaya was persuaded to charge his mind and Akshaya had instructed the three brothers-in-law to purchase the property in the name of his wife Parulbaia. This witness in his anxiety and over-zealousness, however, failed to appreciate that Akshaya did not make any such case himself in the plaint. I cannot help commenting on the nature of the evidence given by this witness and the manner of his giving the answers. This witness will not give honest and straight-forward answers, will hesitate and prevaricate whenever in any tight corner, will alter and change his previous testimony without any scruple and without any regard for truth and in a really difficult situation which the witness is not in a position to cope, will seek to take cover and shelter on the plea that Akshaya had not told him anything about that. Realising that some kind of a motive has to be established for making out a case of benami, this witness does not have any hesitation in seeking to paint his uncle as a drunkard and debauch, and this witness goes to the length of saying that Akshaya would not visit the shop regularly and would come occasionally and, at times, in such a drunken state that this witness would feel ashamed to talk to him. The significant thing to note in this connection is that this witness during his entire examination-in-chief had not mentioned these facts.

In the facts of the instant case, I find it difficult to depend on the oral testimony of Sudhir Chandra Patitundi, the other witness called on behalf of the Plaintiff. It has to be borne in mind that this witness deposes to events which happened years ago and he seeks entirely to depend on basis memory. Apart from the question to what extent any reliance can be placed on the oral testimony of the witness, on an analysis of the evidence of this witness the only important thing that this witness says is that he knew that Ahshaya was the owner of the property and Parulbaia, his wife, was a mere benamder and this he came to know as he heard about the same from Akshaya and Parul. I have my doubts as to whether the evidence of this witness as to what he had heard from Akshaya about Akshaya being the real owner of the property, is admissible. In any event, I am unable to attach any weight to the testimony of this witness which is based on what he heard from Akshaya or Parul and of which this witness has no personal knowledge. I am also unable to accept the testimony of this witness that Akshaya or Parul had mentioned anything to this witness about Akshaya being the legal owner of the property and Parul being only a mere benamder of Akshaya. The conduct of this witness shows that this witness never accepted Akshaya as the landlords The rent receipts which this witness has produced are signed by Parulbaia and one by Akshaya on behalf of Parulbala. Though this witness has sought to say that both Akshaya and Parul used to grant rent receipts, this witness has not been able to produce a single rent receipt granted by Akshaya. There is only one rent receipt signed by Akshaya and the same is signed by Akshaya for and on behalf of Parul. This witness has stated in Qs. 92, 93 and 94 in his examination-in-chief that both Parul and Akshaya used to grant rent receipts, although Akshaya would do so on rare occasions and this witness sought to create and convey an impression that Akshaya was collecting rents as owner and granting such rent receipts himself. The rent receipts produced by this witness clearly belie the said testimony and this witness categorically stated later on that, as far as this witness was concerned, this witness considered Parulbala to be his landlord and he did not accept Akshaya to be the owner of the property (see Qs. 235 to 237). Although this witness in answer to Q. 238 put by me seeks to explain by saying that he knew Akshaya was the owner of the house because the house was purchased by his money but legally Parulbala was the owner and that is what he was told. This explanation sought to be offered is of little evidentiary value. Apart from the question as to what he was told is at all evidence or not, no reliance can be placed on the said testimony, as the conduct of the witness clearly belies the same. Had there been any truth in the testimony of this witness, this witness would not have had any hesitation in accepting Akshaya as the owner of the house and in accepting rent receipts granted by Akshaya and would not have insisted on the rent receipts signed by Akshaya to be made for and on behalf of Parulbala. It is also the positive testimony of this witness that Akshaya used to collect rent from the witness and Akshaya used to pay the money to Parulbala after collecting the same from this witness. The facts that this witness would not accept Akshaya as the landlord and any rent receipts granted by Akshaya and rent would be collected from this witness by Akshaya on the strength of receipts signed by Parulbala or for and on her behalf and the collection would be made over to Parulbala, to my mind, indicate that Akshaya did not consider himself to be the owner of the property, and Parulbala was the owner of the property. In any event, this witness placed no reliance on any statement made by Akshaya or Parul as to ownership of the property and had considered and treated Parul as basis landlord. It is also very significant to note that this witness in course of his examination-in-chief does not say a word about the benami nature of the transaction and does not say a word about Akshaya or Parul telling him anything with regard to the benami nature of the transaction and this witness came out with the said testimony in course of cross-examination on another day. The explanation which this witness sought to offer as to why he had not mentioned about these facts in course of his evidence in examination-in-chief is unconvincing and untenable. Realizing the weakness of the case made on behalf of the Plaintiff and the weakness of the nature of his evidence this witness, to ray mind, came out with that part of the evidence at a later date to cover up the weakness of the case of the Plaintiff and the name of Parulbala was deliberately taken in an attempt to make the testimony admissible, if possible. It may be � of some interest to note that this witness was carrying in his pocket a statement prepared by the Solicitor as to the evidence to be given by him and this statement had come out along with other documents which this witness sought to produce and tender and the statement prepared for this witness by the Solicitor has also been exhibited. I, however, do not place any particular importance on this aspect.

I shall now deal with the evidence adduced on behalf of the Defendants. The first witness to be called on behalf of the Defendants is Rajani Kanta Pal. This witness in his examination-in-thief as stated that their sister Parul was born after the birth of the seven brothers and, as such, she was named Parul and she was a beloved sister of all the brothers. Parul was married to Akshaya who at the time of the marriage was fairly well-to-do. According to this witness, Akshaya developed various bad habits, sold away his properties and was squandering away the money. It is the evidence to this witness that Parul came to be placed in a difficult financial position because of Akshaya''s bad habits and nature. It is the further evidence of this witness that this witness and his two brothers, the other Defendants who were carrying on business in hardware, made enough money and they purchased 100 Tarak Pramanik Road and also other properties. This witness states that in view of Parul''s condition, this witness and his two brothers decided to make a gift of 100 Tarak Pramanik Road which was purchased by this witness and his two brothers and they ultimately made a gift of the said property by a registered deed of gift executed by them on July 6, 1946. This witness has stated that in the matter of purchase of 100 Tarak Pramanik Road and also a property on Chittaranjan Avenue about the same time, Ajen Krishna Ghosh, a Solicitor of the firm H. N. Dutta & Co., was employed and the said Solicitor acted on their behalf in the matter of the said purchases. This witness next stated that a sum of Rs. 101 was paid as earnest money at the time of execution of the agreement for sale and the balance amount was paid at the time of the execution of the conveyance in the manner indicated in the memo, of consideration to the said conveyance dated January 3, 1944. It is also the evidence of this witness that at the time when the property was purchased there was a tenant who was directed to attorney to him and to his two brothers who became the owners of the property by purchase thereof, and rent in respect of the said property was being collected by this witness and his two brothers. It is the testimony of this witness that the entire consideration money for the purchase of the said property was paid by this witness and his two brothers and this witness and his two brothers as absolute owners were collecting rents and appropriating the same. This witness has also stated that, after the purchase of the property by him and his brothers, necessary application was made before the Corporation of Calcutta for mutation of their names and the conveyance was also presented before the appropriate authorities. This witness has pointed out to the endorsements appearing on the conveyance showing presentment of the same to the appropriate authorities for mutation. It is the testimony of this witness that till the period of time of transfer of the property to Parul by gift this witness and his brothers had been paying all Corporation rates and taxes and had been collecting rents from the tenant. This witness has proved the letters of adornment to the tenant from the vendor directing rent to be paid to this witness and his two brothers, and also the endorsement on the conveyance showing presentment of the conveyance to the appropriate authorities for the purpose of mutation. This witness states in his evidence that when this witness and his brothers decided to make a gift of the property to their sister Parul they instructed their lawyer Nirmal Krishna Banerjee to prepare the necessary deed and they also informed Akshaya of their intention and asked Akshaya to be present when the deed of gift would be executed by this witness and his two brothers in favour of Parul. It is the evidence of this witness that Akshaya was present at the time when the deed of gift was executed and Akshaya was a witness to the said deed of gift. It is also the positive testimony of this witness that the pleader had read over the said deed of gift when Akshaya, the other witnesses and the executants were all present and Akshaya signed as a witness after the said deed of gift had been read over by the pleader. This witness has proved the due execution of the deed of gift and the signatures of the witnesses appearing thereon including the signature of Akshaya. This witness stated that after the gift of the property in favour of Parul the three brothers informed the tenant of the same and directed the tenant to attorney and pay rent to Parulbala and this witness has proved the correspondence that passed between the lawyer of the tenant and Parulbala. This witness has also stated that, as asked for by the lawyer of the tenant, inspection of the deed of gift had in fact been given to the tenant. This witness in course of his evidence also spoke of the will and of the deed of settlement executed by Parulbala. This witness has denied the case� sought to be made on behalf of the Plaintiff. This witness has stated that Akshaya never entrusted this witness and his, brothers with the acquisition of the property and this witness categorically denied that Akshaya paid any money to this witness or his brothers for the purchase of 100 Tarak Pramanik Road or for any other properties at any other time. This witness has also stated in his evidence that; relationship of Parul with Akshaya was unhappy and Parul would not be properly looked after by Akshaya and it is the testimony of this witness that the relationship of the present Plaintiff Umarani with Parul and Akshaya was very formal and Umalrani would hardly care for her father or for Parul.

This witness has been cross-examined at very great length. This witness was cross-examined at length as to the source of money and the true nature of acquisition of premises No. 100 Tarak Pramanik Road- This witness was confronted^ with a deed of partition executed by this witness and his two brothers, the Defendants Nos. 2 and 3 on December 11, 1945 (Ex. H). There is no mention of the premises No. 100 Tarak Pramanik Road property in this deed of partition. This witness was asked to explain as to why there was no mention of premises No. 100 Tarak Pramanik Road in the said deed of partition which was executed in 1945 if this property had been really purchased by this witness and his two brothers in the year 1944. The answers given by this witness in course of the lengthy cross-examination as to how and when the partition between this witness and his brothers had taken place appeared to be confusing and do not appear to be quite satisfactory. This witness had at times suggested that the partition was effected after the deed of gift; in favour of Parul, but when this witness was confronted with the document and was shown the date of document, this witness stated that premises No. 100 Tarak Pramanik Road was not included in the said deed of partition as the brothers had already decided to make a gift of the property to Parul, and the lawyer of these Defendants had advised them against inclusion of the said property in the deed of partition. I have to observe that this part of the testimony of the witness appears to be confused and not very satisfactory. It is, however, to be borne in mind that before the document was shown to the witness the witness was giving his evidence from memory with regard to events which happened about 25 years ago. On the question of financial position of this witness and his brothers this witness was cross-examined with reference to the earlier deed of partition between all the brothers including the Defendants No. 1, 2 and 3 dated June 13, 1932, Ex. 12, under which the business with all its assets valued at Rs. 51,000 was given to this witness and his two brothers who are Defendants in this suit. This witness was cross-examined as to non-production of the books of the business which, it was suggested, would have indicated the real nature of the business. It is the evidence of this witness that old books of the business are not maintained and they are thrown into the Ganges after every seven years. On the question of Akshaya''s relationship with Parul and his looking after the wife, this witness was shown- the post card addressed by Parul to Akshaya asking for money. This witness stated that the said letter was a fabricated one and the signature on the letter is not the signature of Parul. It is, however, to be noted that no such case was made by the learned Counsel, appearing on behalf of the witness, when Kanchan Pal gave evidence on this letter and proved this letter. '' When this witness was asked as to why this case was not suggested to Kanchan Pal, this witness stated that as he was not then in the Court he could not instruct his counsel. This witness was cross-examined at length as to the reason of making a deed gift in favour of Parul who had ho liability and had no child, and this witness was asked why no gift was made in favour of Dalim, the other sister, who has a large number of children and who is in very poor circumstances. This witness stated that when the deed of gift was executed Dalimbala''s condition was not very poor.

The next witness called on behalf of the Defendants is Nirmal Krishna Banerjee, a pleader practicing in the Judges Court, Alipur. This lawyer was responsible for the preparation of the deed of gift executed by Rajani Kanta Pal and his two brothers in favour of Parulbala on July 6, 1946 (Ex. 6). This witness stated that he had prepared the said document on the instructions of Rajani Kanta Pal, Birendra Kanta Pal and Kamala Kanta ''Pal and he prepared the document after obtaining all the necessary particulars in respect thereof. Sri Nirmal Krishna Banerjee has stated that the document was presence. It is the testimony of this witness that on July 6, 1946, He has proved due execution of the document and he has stated that the executants and the witnesses all signed the document in his presence. It is the testimony of this witness that on July 6, 1946, the brothers came and thereafter Akshaya Babu and Girindra Krishna Bose came, and it is the positive evidence of this witness that this witness thereafter read over the document to all of them and they all heard it and, thereafter, they all put their signatures. This witness was cross-examined as to how this witness could remember an incident which happened so many years ago and it was suggested to this witness that as this witness had to prepare a number of such documents in course of his professional career it was not possible for this witness to remember as to what had really happened on July 6, 1946. This witness has stated that it is his practice to read over documents before the same is executed and he remembers the facts now after having a look into the document prepared by him. in course of cross-examination this witness also reiterates and maintains that all the persons who had-signed the document whether as executants or as witnesses including Akshaya were present when he read over the document and they had all heard about the contents of the document before they had signed, as the same had been read over by him in the presence of all.

Ajendra Krishna Ghosh, a Solicitor of this Court, has also given evidence on behalf of the Defendants. It is the evidence of this Solicitor that he acted on behalf of Rajani Kanta Pal, Kamala Kanta Pal and Birendra Kanta Pal in the matter of purchase of premises No. 100 Taiak Pramanik Road, Calcutta. This Solicitor has stated that on the instructions of his clients he took upon the work of preparation of an agreement for sale and the agreement for sale was duly executed on December 1, 1943, and a sum of Rs. 101 was paid as earnest money. Birendra Krishna Bhadra was acting on behalf of the vendor. Ajendra Krishna Ghosh has deposed to the facts resulting in the execution of the agreement for sale, the fact of execution of the agreement for sale at his office and payment of Rs. 101 at the time when the agreement for sale was executed. He has also deposed to the steps taken by him subsequent to the execution of the agreement for sale till the execution of the conveyance. It is his testimony that the conveyance was executed and the consideration money was paid in his presence and he was also present at the Calcutta Registry office. The Solicitor has also stated that after the original conveyance had been received from the Registry office he had sent a letter to the Assessor, Calcutta Corporation, sending the original conveyance along with the said letter for mutation of name and he subsequently got back the conveyance from the Assessor. The Solicitor has referred to various entries in his day book in relation to the transaction and has proved all the said entries in the day book (Ex. 26 series). The Solicitor has stated that apart from the transaction in relation to purchase of premises No. 100 Tarak Pramanik Road he also acted on the instructions of Rajani Kanta Pal in the matter of purchase of the Chittaranjan Avenue property which property was purchased in the names of two wives of two of the brothers. The Solicitor has further stated that he knew Rajani Kanta Pal and his brothers and he knew that they were making good money in their business and he had acted for them in purchase of the immovable properties. It is the evidence of Sri Ajendra Krishna Ghosh that he also acted in the matter of the deed of settlement which was executed by Parulbala. He has stated in his evidence that on December 16, 1952, Lakshminarayan Pal, a nephew of Parulbala and also of Rajani and the other Defendants in the suit, called on him at his residence with two documents, namely, the conveyance in respect of 100 Tarak Pramanik Road dated January 3, 1944, and the will of Parulbala and instructed him to prepare a deed of settlement on the basis of the provisions contained in the said will. It is the evidence of the Solicitor that on receipt of the aforesaid two documents and the instructions from Lakshminarayan Pal he told Lakshminarayan Pal that he would like to have personal instructions from Parulbala in the matter and he thereafter saw Parulbala at 100 Tarak Pramanik Road and he took instructions from Parulbala direct. It is his evidence that after having discussed the matter with Parulbala and after having obtained instructions from Parulbala he prepared a draft deed of settlement which was explained to Parulbala and to Dalimbala. He states that Parulbala approved of the said draft deed of settlement and thereafter he prepared the engrossed deed of settlement had the same duly stamped and the said deed of settlement was duly executed in his presence after he had explained the said deed of settlement to the executants. He has also stated that he thereafter had the said deed duly registered and he delivered the original deed of settlement to his clients after obtaining the same from the Calcutta Registry office. The Solicitor has referred to and proved the relevant entries in his day book in relation to this transaction (Ex. 27 series). The Solicitor was cross-examined as to his source of knowledge as to the financial condition of Rajani Kanta Pal and his brothers. The Solicitor was also cross-examined as to why the entries in the day book do not record the fact of the personal interview with Parul at 100 Tarak Pramanik Road and the fact of receiving his instructions personally from Parulbala. In course of his cross-examination the Solicitor stated that he knew Rajani and his brothers well and he knew that they were doing well in their business and he came to know that they were making good profits in the hardware business which they were carrying on when Rajani Pal and his brothers requested him to act on their behalf in the matter of purchase of the immovable properties. It is, however, to be noted that the evidence of the Solicitor as to his association with Rajani Kanta Pal and his brothers and the fact of carrying on business by them is somewhat confused (see Qs. 125-127, 148-173, 178-186 and 290-299). In explaining as to why the fact of the personal interview of the Solicitor with Parul at 100 Tarak Pramanik Road has not been mentioned in the day book, the Solicitor has stated that that was a mere omission.

The last witness called on behalf of the Defendants is Lakshminarayan Pal. Lakshminarayan Pal has proved the execution of the will (Ex. 24) by Parulbala. It is the evidence of this witness that Parulbala asked him to make necessary arrangements for executing a will. He had thereupon engaged a lawyer of the name of Sirish Chandra Bhowmik who came to 100 Tarak Pramanik Road and necessary instructions were given to him according to the advice of Parulbala, and Parulbala herself expressed her desire and instructed the lawyer to draft a will according to her instructions. The will was prepared by the lawyer on the basis of the instructions and was duly executed and Akshaya Kumar Pal amongst others also signed the will as an attesting witness. It is also the evidence of this witness that the pleader had read over the said will to all the persons who were present there and this witness has proved the signatures of the persons appearing in the will including the signatures of Akshaya and Parul and also of himself. Lakshminarayan Pal has also stated that Parulbala had asked him sometime thereafter to make a permanent arrangement so that the property she wanted to bestow on Dalim might be enjoyed by her safely and without any difficulty. It is his evidence that he had thereafter taken the will and the conveyance to the Solicitor Ajendra Krishna Ghosh of M/s. H. N. Dutta & Co. The Solicitor, however, told him that he could not do anything according to his instructions and by going through those two documents he required the instructions of Parulbala herself. The Solicitor, thereafter, visited Parulbala along with him and had discussions with Parulbala and after discussing the matter with Parulbala and obtaining instructions from her the Solicitor prepared the said deed of settlement. It is also the evidence of this witness that after the deed of settlement was executed he took necessary steps at the request of Parulbala for mutation of names. This witness was also subjected to a long and searching cross-examination. This witness was asked about the whereabouts of the lawyer Sirish Chandra Bhowmick who prepared the will and whether any attempts had been made to find him and to call him as a witness. Lakshminarayan Pal stated that Sirish Chandra Bhowmick used to practice in the Sealdah Court and used to reside in his locality, but he does not reside in that locality now and Lakshinarayan Pal does not know where the pleader now resides and he did not consider it necessary to make any attempt to find his whereabouts. It was suggested in course of cross-examination to this witness that this document was not signed by Akshaya Kumar Pal and that this is not the will of Parulbala. Lakshminarayan Pal naturally denied these suggestions. It was also suggested to Lakshminarayan Pal that the deed of settlement was procured by him without any knowledge of Akshaya and keeping Akshaya in the dark and the said deed of settlement was not acted upon during the life-time of Parul. Lakshminarayan Pal denied these suggestions.

The evidence of Rajani Kanta Pal on certain aspects does not appear to be satisfactory. His evidence as to the time and manner of partition between himself and the other two Defendants is somewhat confused and his explanation as to why there was no mention of 100 Tarak Pramanik Road in the deed of partition may deserve criticism. His evidence that the books of the business are thrown into the Ganges after a lapse of seven years, is rather difficult to accept. Notwithstanding the aforesaid infirmities in the evidence of Rajani Kanta Pal and in spite of the fact that his evidence on these matters and also on certain other aspects is not quite satisfactory, I am inclined to accept his case and the evidence that he and his two other brothers, the Defendants Nos. 2 and 3 herein, purchased 100 Tarak Pramanik Road with their own money and he and his brothers were never entrusted by Akshaya with the purchase of the said property and Akshaya had never paid any money to them for the purchase of premises No. 100 Tarak Pramanik Road. It has to be borne in mind that Rajani Kanta Pal was deposing to events and incidents which had taken place years ago, and it is unlikely that he will have a definite and clear recollection of all the facts after this lapse of time. As already indicated, although the evidence of Rajani Kanta Pal does not appear to be quite satisfactory and may merit some criticism, I am inclined to accept his testimony and his case to the effect that there was no question of any benami transaction in relation to premises No. 100 Tarak Pramanik Road, as his evidence on this aspect is corroborated by documentary evidence, the evidence of Ajendra Krishna Ghosh and the conduct of the parties and particularly the conduct of Akshaya. Later on, I shall deal at length with the conduct of Akshaya and, to my mind, the conduct of Akshaya furnishes the best evidence as to the real nature of the transaction and clearly negatives Akshaya''s case of any benami transaction. The Solicitor Ajendra Krishna Ghosh, with reference to the day book entries which have been exhibited, has unequivocally stated that in the matter of purchase of the property Rajani mainly would give him instructions and Rajani and his brothers had paid the earnest money at the time of the agreement for sale and also the consideration money at the time of the execution of the conveyance. It is the positive testimony of this Solicitor and it is also an undisputed fact that Akshaya was nowhere on the scene during this entire period. Even if Akshaya had entrusted his brothers-in-law with the purchase of the property, I fail to understand why Akshaya would not take any steps and would remain completely out of the picture during this entire period. The memo, of consideration mentioned in the conveyance and the fact that a sum of Rs. 10,399 was paid on the date of the execution also goes to indicate that the case sought to be made by the Plaintiff as to payment of the consideration by Akshaya is not true. The conduct of the parties subsequent to the purchase clearly indicates, to my mind, that the case of Rajani and his brothers is true and the evidence of Rajani is correct. It is to be remembered that the property was tenanted. The documentary evidence goes to show that the vendor issued letters of adornment to the tenant in favour of Rajani and his brothers who collected rents and paid Corporation rates and taxes. It is also the evidence of the Solicitor, and the conveyance itself corroborates that the conveyance had been sent to the Corporation authorities for mutation of names of the three brothers after the property was purchased. If Akshaya had really purchased the property and paid the consideration money, it is incredible that Akshaya would not take any steps for a period of over two years after the property had been purchased. The deed of gift which Rajani and his brothers executed in favour of Parul and to which Akshaya is an attesting witness clearly establishes, to my mind, that Rajani and his brothers had purchased the property and were the real owners of the property. I have also to note that the Solicitor Ajendra Krishna Ghosh has stated in his evidence as to the financial solvency of Rajani and his brothers. It is also in the evidence that at the relevant time another property on Chittaranjan Avenue was purchased in the names of the two wives by the Pal Defendants, and Ajendra Krishna Ghosh had also acted in the said transaction on behalf of the purchasers and Rajani mainly used to give him the necessary instructions.

I have no hesitation in accepting the testimony of the pleader Nirmal Krishna Banerjee. Apart from the fact that the deed of gift essentially corroborates his testimony, he gave evidence in a very forthright and straight-forward manner. The execution of the deed of gift is not in dispute and in fact the said document is a common document. The only part of his testimony which materially affects the case of the Plaintiff is whether Akshaya had knowledge of the contents of the said deed of gift including the recitals narrated therein. It is the positive testimony of this pleader that he had read over the entire document to the parties and Akshaya was present when he read over the document and Akshaya had signed the document as an attesting witness. The fact that Akshaya signed the document as an attesting witness is not challenged. The categorical and positive testimony of the pleader that he read out the document in the presence of Akshaya was not shaken in any way in cross-examination. The incident had undoubtedly� taken place years ago. The lawyer, however, had the opportunity of refreshing his memory with reference to the document. It is the clear and positive testimony of the lawyer that he had read over the document in the presence of Akshaya and Akshaya had heard the contents of the document. I cannot persuade myself to believe that the pleader would make such positive statement unless he could correctly recall the incident. I may incidentally note that it was not even suggested to the lawyer that he had not read over the document to the parties in the presence of Akshaya.

I see no reason to disbelieve the evidence of Ajendra Krishna Ghosh. The testimony of Sri Ajendra Krishna Ghosh as to the period of his association with the Pal Defendants and the time of the said Defendants carrying on business may be somewhat confused. It is, however, to be remembered that on this aspect he was giving his evidence entirely from memory after a long lapse of time. There cannot be any dispute that the Pal Defendants had been carrying on business. The material evidence of Ajendra Krishna Ghosh relates, however, to the transaction of purchase of 100 Tarak Pramanik Road by the Pal Defendants and the execution of the deed of settlement of the said premises by Parulbala. The evidence of Ajendra Krishna Ghosh in relation to the transaction of purchase of premises No. 100 Tarak Pramanik Road by the Pal Defendants is clearly borne out by the entries in the day book. The entries in the day book which have been duly proved and exhibited give a clear picture with regard to the transaction of purchase of premises No. 100 Tarak Pramanik Road by the Pal Defendants. In this connection, Ajendra Krishna Ghosh had also the opportunity of refreshing his memory with reference to the entries in the day book. The conveyance dated January 3, 1944, in respect of the said premises No. 100 Tarak Pranamik Road executed by the vendor Harendra Krishna Laha in favour of the purchasers Rajani Kanta Pal, Kamala Kanta Pal and Birendra Kanta Pal, the Pal Defendants herein, also corroborates the evidence of Ajendra Krishna Ghosh. The letter of adornment by the vendor in favour of the Pal Defendants after the execution of the conveyance and also the endorsement in the conveyance itself of the Corporation authorities lend unequivocal support to the testimony of Ajendra Krishna Ghosh. It is also to be noted that Ajendra Krishna Ghosh has stated in his evidence that, as far as he knew, he knew that the Pal Defendants who were his clients in the matter of purchase of premises No. 100 Tarak Pramanik Road were the real purchasers of the said property and he acted on their instructions and he had no knowledge as to whether they were the benamders of Akshaya Kumar Pal or the money that was paid was the money of Akshaya Kumar Pal. It is also the testimony of Ajendra Krishna Ghosh that Rajani Kanta Pal and his brothers paid him his costs and charges in relation to the transaction, and it is to be noted that this part of the testimony was not even challenged. The evidence of Ajendra Krishna Ghosh with regard to the execution of the deed of settlement by Parul on December 26, 1952, (Ex. 5) is substantially borne out by the documentary evidence. The said deed of settlement itself and the entries in the day book of the Solicitor in relation to the said transaction corroborate the testimony of Sri Ajendra Krishna Ghosh. I have to observe that some criticism has been made by Mr. Sen, the learned Counsel of the Plaintiff, that the entry in the day book dated December 16, 1952, at p. 76 of vol. 121 (Ex. 27/a) is not correctly made as the said entry records ''attending, discussing and making appointment for personal instructions from the settler'' after the Solicitor, according to his evidence, had a personal interview with Parulbala and had obtained instructions from her. Criticism has also been made of the fact that there is no entry in the day book recording the fact that the Solicitor had personal interview with Parulbala and had obtained personal instructions from her in the matter of the preparation of the deed of settlement. There may be some justification for this criticism but, in my opinion, the said criticism cannot really affect the testimony of the Solicitor. It is to be noted that the entry in the day book^ mentions that appointment for personal instructions had been made. The next entry at p. 90 (Ex. 27/b) shows that the Solicitor had attended 100 Tarak Pramanik Road with the draft deed of trust and explained the same to Parulbala and Dalnnbala. Refreshing his memory with reference to the entries in the day book the Solicitor categorically stated in his evidence that after making appointment for personal interview he saw Parulbala personally at 100 Tarak Pramanik Road and obtained personal instructions from her with regard to the deed of settlement and he prepared the draft deed of settlement after he had obtained personal instructions from Parulbala. Apart from the fact that the entries in the day book seek, to my mind, to corroborate the testimony of Ajendra Krishna Ghosh, I have to bear in mind that Sri Ajendra Krishna Ghosh is a Solicitor of this Court of considerable standing. As he was dealing with a settlement to be effected by a lady, he must have felt that personal instructions from Parulbala were necessary and that he should not act on the instructions of Lakshminarayan Pal. The Solicitor was also asked as to why he did not consider it necessary to see Akshaya and take instruction from him and some comments were made as to Akshaya being kept in the dark with regard to this transaction. The Solicitor has stated in his evidence that the will executed by Parulbala and to which Akshaya is an attesting witness (Ex. 24) had been made available to him and after discussion with Parulbala he had not considered it necessary to contact or consult Akshaya. The Solicitor also stated that he gathered an impression that Parulbala did not want her husband to know about the deed and it has been his evidence that on all the occasions when he went to- 100 Tarak Pramanik Road in connection with the execution of the deed of settlement he never met Akshaya. I accept the testimony of Ajendra Krishna Ghosh and I hold that he obtained personal instructions from Parulbala with regard to the preparation of the deed of settlement and had explained to her and to Dalimbala the draft deed of settlement and, thereafter, the said deed of settlement which was also properly explained to Parulbala, was duly executed. I am also inclined to accept the testimony of this Solicitor as to the financial position of the Pal Defendants. In spite of the fact that there is some confusion in the evidence of the Solicitor as to the time and period from which the Pal Defendants had been carrying on business, it is clear that the Solicitor had acted on their behalf in the matter of purchase of 100 Tarak Pramanik Road and the Solicitor also acted on their instructions in the matter of purchase of (she property in Chittaranjan Avenue. Apart from the question of personal association with the Pal Defendants the Solicitor had, therefore, opportunity of coming to know of the financial condition of the Pal Defendants in connection with his professional activity. I may only add that it has been the testimony of the Solicitor that all his professional costs and charges in connection with the transactions of purchase of 100 Tarak Pramanik Road property or the property in Chittaranjan Avenue were duly paid by the Pal Defendants and I may incidentally observe, and it is an established fact, that during the period of the second World War the Pal Defendants had been carrying on business as hardware merchants.

The evidence of Lakshminarayan Pal is mainly material as to the question of the execution of the will and the deed of settlement. I have to observe that I was not very satisfied with the manner of giving evidence of this witness. There are too many ''buts'', ''ifs" and ''may be'' in the testimony of this witness and that kind of evidence makes his testimony rather unimpressive. It is true that he was giving evidence as to the facts which had taken place years ago and some amount of caution is not only justified but may be desirable. But the nature of his evidence, indicated, to my mind, that he was not answering the questions properly and fairly and was trying to avoid the questions. Although the manner and the nature of evidence of Lakshminarayan Pal did not impress me much, yet on a due consideration of the facts and circumstances of this case and the totality of the evidence and upon assessment of the evidence of Lakshminarayn Pal, I am inclined to accept his testimony on the question of execution of the will and the deed of settlement. Notwithstanding his manner of giving evidence and the nature thereof, I accept his evidence on these two material questions as his testimony is substantiated by documentary evidence and corroborated by the testimony of Ajendra Krishna Ghosh on whose evidence, as I have already indicated, I fully rely. The will (Ex. 24) clearly proves that Parulbala has executed the same and that Akshaya has attested the same. I have compared the signatures of Akshaya and Parul appearing on the will (Ex. 24), with admitted signatures of Akshaya and Parul on other documents. I have no hesitation in coming to the conclusion that signatures of Parul and Akshaya appearing in the will are the signatures of Akshaya and Parul. I have no hesitation in rejecting the suggestions sought to be made by Kanchan Pal after a lot of prevarication that the signatures of Parul and Akshaya appearing in the will (Ex. 24) are not the signatures of Akshaya and Parul. The evidence of Ajendra Krishna Ghosh also clearly indicates that the will was in existence and the will had been made over to him by Lakshminarayan Pal when Lakshminarayan Pal saw him and asked him to prepare the deed of settlement on the instructions of Parul. So far as the deed of settlement (Ex. 25) is concerned, the evidence of Lakshminarayan Pal is substantially corroborated by the evidence of Ajendra Krishna Ghosh and, as I have already stated, I accept the evidence of Ajendra Krishna Ghosh. The deed of settlement itself and the subsequent conduct of Dalimbala bear sufficient corroboration of the testimony of Lakshminarayan Pal.

With these general observations on the nature of the evidence adduced, I propose now to deal with the arguments advanced from the Bar before I take up the issues for consideration.

Mr. Manotosh Mookerjee, learned Counsel appearing on behalf of the Pal Defendants, has argued that the onus of proving the case of benami lies heavily on the Plaintiff. He has submitted that the Plaintiff has failed to prove the case and it is his submission that, the case of the Plaintiff is absolutely false. He has contended that there is no proper evidence to support the case made by the Plaintiff. It is his contention that the facts and circumstances for this case clearly establish that the case of benami sought to be made by the Plaintiff is absolutely false and untenable. He refers to the document, the nature, conduct and habits of Akshaya and he comments that Akshaya was a person who was squandering away money and was selling away the property which had come to him and it is the comment of Mr. Mookerjee that a person of Akshaya''s nature is not likely to purchase any property. Mr. Mookerjee has further contended that there is no explanation as to why Akshaya would want to purchase the property in the benami name of his wife Parulbala. Mr. Mookerjee has argued that the facts and circumstances of this case and evidence on record clearly establish that the property was not purchased by Akshaya at all and the said property was purchased by the Pal Defendants. Mr. Mookerjee has submitted that of the four witnesses called on behalf of the Plaintiff in support of the Plaintiff''s case the evidence of the Plaintiff Umarani Sahoo and her husband Jiban Krishna Sahoo is really of no consequence. He has argued that no reliance should be placed on the evidence of Kanchan Kumar Pal and Sudhir Chandra Patitundi, the two other witnesses called on behalf of the Plaintiff. Mr. Mookerjee has argued that Kanchan Pal is a witness who has no regard for truth at all. He points out that Kanchan Pal at the relevant time was only of about 18 or 20 years of age and he had joined the business carried on under the name of Akshaya Kumar Pal which was a partnership business of Akshaya and Bipin to learn the business. It is the submission of Mr. Mookerjee that it is highly improbable that a young person of that age who had joined the business for the purpose a partnership business would be or could be placed in charge of the said business, particularly when the other partner Bipin Behari Das was taking active part in the management of the business. Mr. Mookerjee also contends that it is unlikely that Akshaya would confide in Kanchan Pal all his discussions and talks with his brothers-in-law relating to the purchase of the property. Mr. Mookerjee has drawn my attention to the nature of the evidence given by Kanchan Pal to which I have already referred in the earlier part of the judgment, and he has contended that the nature of the evidence given by Kanchan Kumar Pal clearly indicates that he is an untruthful witness on whose testimony no reliance can be placed. Mr. Mookerjee has further contended that Kanchan Kumar Pal while giving his evidence sought to create an impression in the first instance that he had a personal knowledge of the entire transaction and, later on, whenever he would find himself in a difficult position he would say that Akshaya had not told him anything with regard to it. Mr. Mookerjee has pointed out that even the learned Counsel on behalf of the Plaintiff, an whose behalf Kanchan Pal had given evidence, had submitted that the evidence of Kanchan Pal with regard to payment of Rs. 8,000 by Akshaya to his brothers-in-law was based on the personal knowledge of Kanchan and the other entire evidence of Kanchan as to payment of Rs. 3,000, as to execution of agreement for sale, as to execution of conveyance and payment of consideration money, as to collection of rent and payment of Corporation rates and taxes, are all based on what Kanchan Pal had heard from Akshaya and on the impression of Kanchan Pal gathered what he had heard from Akshaya. Mr. Mookerjee also drew my attention to the fact that even after the evidence of Kanchan Pal was over he would attend Court more or less regularly and Mr. Mookerjee comments that Kanchan Pal is an interested witness. Mr. Mookerjee has further argued that apart from the question that Kanchan Pal''s evidence should be completely disbelieved, the major part of his evidence is not admissible as the same is hearsay evidence based on what he had heard from Akshaya and such evidence of Kanchan Kumar Pal, according to Mr. Mookerjee, is not admissible u/s 32 of the Evidence Act. Mr. Mookerjee has contended that there is no evidence with regard to payment of Rs. 3,000 by Akshaya to the three brothers-in-law apart from the oral testimony of Kanchan Kumar Pal which, Mr. Mookerjee submits, is not admissible evidence and which in any event, according to him, cannot be relied upon. It is the contention of Mr. Mookerjee that the story of payment of Rs. 3,000 has been concocted to make up the payment of Rs. 11,000 to the three brothers-in-law and to be able to utilize the entry in the books of the business relating to payment of Rs. 8,000 to Akshaya. Mr. Mookerjee has submitted that no reliance should be placed on the entry relating to payment of Rs. 8,000 to Akshaya, and it is his argument that if the earlier payment of Rs. 3,000 be not established, the #said entry relating to payment of Rs. 8,000 becomes of no avail. Mr. Mookerjee has argued that the entry in the books of the business showing payment of Rs. 8,000 to Akshaya does not prove anything. It is argued that the entries in the books are merely corroborative evidence and, in the absence of any positive evidence as to payment, the said entry cannot be relied upon. He has submitted that the evidence of Kanchan Pal and the nature of the entry clearly go to indicate that the said entry, indicating payment ''for the purchase of a house'', has been fabricated for the purpose of this case. He submits that no income tax lawyer ever advises as to how any entry is to be made in the books of the business and it is his submission that, if in fact any such advice had been given by any income tax lawyer, there would be the other entries in relation to payment of Rs. 3,000 indicating the purpose of such payments in the books. It is his further submission that if any such advice had in fact been given by any income tax lawyer, the conveyance would certainly have remained in the possession of Akshaya and would also have been shown to the income tax authorities. Mr. Mookerjee points out that Kanchan Pal does not say a word about the benami transaction in course of his entire examination-in-chief, and realizing this at a later stage in course of his cross-examination he seeks to make out a case that in the first instance Akshaya- had instructed his brothers-in-law to purchase the property in the name of Akshaya and then changed his mind on the advice of his brothers-in-law and instructed them to purchase the property in the name of his wife Parulbala. Mr. Mookerjee points out that even Akshaya has not made such a case in the plaint. Mr. Mookerjee has argued that no reliance should be placed on the evidence of Sudhir Chandra Patitundi. He has drawn my attention to the evidence of Sri Patitundi and has submitted that the evidence of Sudhir Chandra Patitundi is entirely hearsay and based on what he had heard from Akshaya. It is the contention of Mr. Mookerjee that the evidence of Sudhir Chandra Patitundi as to what he had heard from Akshaya is not admissible in evidence. Mr. Mookerjee also points out that Sudhir Chandra Patitundi in course of his entire examination-in-chief does not say a word as to the benami nature of the transaction and seeks to make out the case at a later stage while he was being cross-examined and Mr. Mookerjee also points out that at such stage Sudhir Chandra Patitundi goes to the length of saying that he had not only heard from Akshaya but also from Parulbala. Mr. Mookerjee comments that the evidence of Sudhir Chandra Patitundi is clearly belied by his own conduct, and if Sudhir Chandra Patitundi had really known and believed that Akshaya was the real owner of the property, he would have no hesitation in accepting rent receipts granted by Akshaya and would not insist on rent receipts being granted by Akshaya for and on behalf of Parul. Mr. Mookerjee submits that the evidence adduced on behalf of the Defendants should be accepted. It is his submission that the evidence of Rajani is largely borne out by the documents and the evidence of Ajendra Krishna Ghosh. Mr. Mookerjee contends that the conduct of Akshaya and of the parties furnishes the best proof that Akshaya was not the owner of the property and the property had been purchased by the Pal Defendants with their own money. Mr. Mookerjee argues that if Akshaya had intended to purchase the property in the name of his wife Parul and had entrusted the brothers-in-law with the matter of purchase of'' the property he would undoubtedly have taken some interest in the matter and would in any event have taken possession of Age conveyance after the property had been purchased. Mr. Mookerjee also comments that if Akshaya had wanted to purchase the property he would undoubtedly have taken possession of the property after the property had been purchased and would have collected rents from the tenant and would have paid the Corporation rates and taxes himself. Mr. Mookerjee has submitted that no reason has been indicated as to why Akshaya would entrust the three brothers-in-law for the purchase of the property and for the purchase of the property in the name of Parul. He has also submitted that if Akshaya had really purchased the property in the name of Parul, it is incredible that Akshaya would not possibly know about the nature of the transaction for a period of about 2� years and would discover after 2� years that the property had been purchased in the names of the three brothers-in-law. He points, out that there is no evidence to show as to under what circumstances Akshaya came to know of the purchase of the property in the names of the three brothers-in-law after %\\ years. Mr. Mookerjee has argued that it is in evidence that the Pal Defendants were carrying on business, were affluent and were purchasing properties. It is his submission that the entire evidence goes to show that it is the Pal Defendants who had done all that was necessary for the purchase of the property and they have given all necessary instructions to the Solicitor and they have paid the money. Mr. Mookerjee submits that the fact that this property is not included in the deed of partition between the three brothers, namely the three Pal Defendants, is not really of any serious consequence as the three brothers had already decided that they would make a gift of this property to Parulbala. Mr. Mookerjee further submits that the conduct of the Pal Defendants subsequent to the purchase clearly indicates that they were asserting all rights of ownership over the property. It is the submission of Mr. Mookerjee ^hat the fact that the three brothers executed the deed of gift in favour of Parul and Akshaya was an attesting witness to the said deed conclusively establishes that the property was purchased by the three brothers and completely stops Akshaya from alleging that Akshaya was the real owner of the property. Mr. Mookerjee has submitted that the will of Parulbala, to which again Akshaya is an attesting witness, clearly indicates that Akshaya never considered himself to be the owner of the property and did not claim any right ''of ownership over the property. Mr. Mookerjee has submitted that the evidence of the Solicitor and Lakshminarayan Pal clearly establishes that the deed of settlement was prepared on the basis of the instructions of Parul who had approved the draft and had executed the deed after the same had been explained to her. It is the submission of Mr. Mookerjee that the facts and circumstances of this case and the evidence on record clearly establish that the case of the Defendants is true and that the case of the Plaintiff is false. Mr. Mookerjee has contended that even if the case of the Defendants be not accepted, the case of the Plaintiff must fail, as the Plaintiff has failed to prove her case. It is his argument that to establish a benami transaction the Plaintiff has to prove by satisfactory evidence the following essential elements: (i) motive, (ii) source of consideration, (iii) possession and'' (iv) custody of documents of title. He has argued that, in the instant case, the Plaintiff has failed to establish any of the essential ingredients required for establishing the benami transaction. Mr. Mookerjee, therefore, submits that even if the Court is not satisfied with the case made by the Defendants, the Court should dismiss the present suit. In this connection, Mr. Mookerjee has referred to the following cases: Bhuban Mohini Dasi and Ors. v. Kumudbala Dasi and Ors. (1923) 28 C.W.N. 131; Gorantala Parvatamma v. Veeragandam Subbayya AIR 19S2 Mad. 144; Uman Parshad v. Gandharg Singh ILR (1887) Cal. 20 and Dalip Singh and Ors. v. Chaudhrain Nawal Kunwar and Anr. L.R. 35 LA. 104. On the question of the effect of Akshaya''s conduct and the attestation by Akshaya in the deed of gift and the will, Mr. Mookerjee has cited the following decisions: Sarat Chunder Dey and Ors. v. Gopal Chunder Laha and Ors. (1892) L.R. 19 LA. 203 and Narayana Aiyar and three Ors. v. Rama Aiyar and two Ors. ILR 58 Mad. 396. In support of his submission that the evidence of Kanchan Pal and Sudhir Chandra Patitundi on the basis of what they had heard from Akshaya is not admissible, Mr. Mookerjee has relied on the following decisions: Bhagwati Prasad Sah and Others Vs. Dulhin Rameshwari Kuer and Another, ; Repaka Appalanarasimham and Others Vs. Repaka Udalama and Others, ; Arjun Sukla Vs. Jujesthi Sukla and Another, and Harihar Rajguru Mohapatra and Another Vs. Nabakishore Rajaguru Mohapatra and Others, .

Mr. P. K. Sen, learned Counsel appearing on behalf of the Plaintiff, has argued that in the instant case there are two rival contentions, one put forward by the Plaintiff claiming the property to be a property of Akshaya purchased in the name of his wife Parulbala and the other advanced on behalf of the Defendants that the property was purchased by the Pal Defendants with their own money. It is argued that, apart from these two main contentions as to the ownership of the property, there is no third contention or case before the Court with regard to ownership of premises No. 100 Tarak Pramanik Road at the time of acquisition thereof by purchase in 1944. Mr. Sen submits that in view of the aforesaid position, if the case of the Pal Defendants with regard to purchase of the property by them with their own money be not accepted by the Court, the Court should come to the conclusion that the case made by the Plaintiff that the said property was really purchased by Akshaya, should be accepted. It is Mr. Sen''s submission that the Court should reject the case of the Pal Defendants that the Pal Defendants purchased the property with their own money and became owners of the property after the purchase thereof on January 3, 1944. Mr. Sen has contended that the nature of evidence adduced on behalf of the Defendants and the facts and circumstances of this case indicate that the said property was not purchased by the Pal Defendants with their own money and the Pal Defendants never became the owners thereof and the Pal Defendants did not consider themselves to be the owners of the said property. Mr. Sen very strongly relies on the deed of partition between the three Pal Defendants dated December 11, 1945, (Ex. H) in support of his contention that premises No. 100 Tarak Pramanik Road did not belong to the Pal Defendants and the said three brothers did not consider themselves to be the owners of the said property. Mr. Sen argues that the said deed of partition between the three brothers was executed on December 11, 1945, long after the purchase of premises No. 100 Tarak Pramanik Road and, if the said property had really belong to the three brothers there would undoubtedly have been some reference to the said property in the said deed of partition. Mr. Sen draws my pointed attention to the statement in the said deed that apart from the properties mentioned in the deed the said three brothers did not have any other property. It is Mr. Sen''s argument that the said deed clearly established that premises No. 100 Tarak Pramanik Road did not belong to the said three brothers and as the said three brothers were fully aware of the said fact, no mention of the said property had been made in the said deed of partition. Mr. Sen has criticized the evidence given by Rajani Kanta Pal and has commented that Rajani Kanta Pal sought to make different cases at different stages. It is his contention that the evidence of Rajani Kanta Pal cannot be accepted and no reliance should be placed on the explanation sought to be offered by Rajani Kanta Pal that no mention was made of 100 Tarak Pramanik Road in the said deed of partition on the advice of the lawyer as it had been decided that a gift of the said property would be made in favour of Parulbala. Mr. Sen has commented that there is no satisfactory evidence as to the financial position of the Pal Defendants and their ability to purchase the said property. He comments that the Pal Defendants had deliberately suppressed the most material evidence which could have thrown light on this aspect.

It is the argument of Mr. Sen that the books of account of the business of the Pal Defendants were very material evidence in support of the case of the Pal-Defendants and the said books have been deliberately withheld from Court. He has submitted that the evidence of Rajani Kanta Pal that the books have been thrown into the Ganges, is clearly incredible. Mr. Sen has also argued that the case of the Pal Defendants that they wanted to make a gift of their property No. 100 Tarak Pramanik Road to Parulbala should not be accepted. It is the contention of Mr. Sen that Akshaya was sufficiently well-off and was doing business on a fairly large scale and there could be no question of making any gift to Parul who had no children of her own. Mr. Sen submits that on the other hand the financial condition of the youngest sister Dalimbala was pretty bad and Dalimbala had a large number of children, and if the brothers really wanted to make any gift out of their generosity in favour of any sister, the brothers would have made the gift not in favour of Parulbala but in favour of Dalimbala who was in want and in need. Mr. Sen argues that the fact that the brothers executed a deed of gift in favour of Parulbala in respect of premises No. 100 Tarak Pramanik Road, goes to indicate that Akshaya''s case is true, and by adopting the said mode of transfer the Pal Defendants conveyed the property to Parulbala in accordance with the instructions of Akshaya and in compliance with the intention originally expressed by Akshaya that the property should be purchased in the name of Parulbala. Mr. Sen has argued that the evidence of Ajendra Krishna Ghosh with regard to the financial position of the Pal Defendants should not be relied upon. It is his argument that Ajendra Krishna Ghosh has really gone out of his way to say something in favour of the Pal Defendants and that goes to show that Ajendra Krishna Ghosh is prejudiced in favour of the Pal Defendants. Mr. Sen contends that taking into consideration the nature, character and habits of Akshaya and the implicit faith that Akshaya reposed in his brothers-in-law, the facts and circumstances of this case fit in with the case made by Akshaya that the property was purchased by him in the name of his wife; and the document, namely, the conveyance in the names of the three brothers-in-law and the deed of gift by the three brothers-in-law in favour of Parulbala can in that background be easily explained. Mr. Sen has argued that the Court should consider all the facts and circumstances of this case and the entire evidence on record and the Court should proceed to consider the evidence adduced on behalf of the Plaintiff in this background. It is the submission of Mr. Sen that if the case of the Defendants be rejected by the Court and the character of Akshaya be properly considered, the evidence adduced on behalf of the Plaintiff should be considered to be sufficient and the Court should come to the conclusion that the case of the Plaintiff has been properly established. It is his argument that if the case of the Pal Defendants as to the purchase of the property by them with their own money be rejected, then the only case that remains to be considered is the case made by Akshaya and the case made by Akshaya in that event should be considered to be sufficiently established by the evidence adduced on behalf of the Plaintiff. Mr. Sen contends that the evidence of Kanchan Kumar Pal, the entry in the books of the business of Akshaya Kumar Pal showing payment of Rs. 8,000 to Akshaya on January 3, 1944, for purchase of a house, the date of purchase of the property and the evidence of Sudhir Chandra Patitundi, a disinterested and independent witness, should be considered sufficient for establishing the case made by Akshaya. It is Mr. Sen''s contention that there cannot be any doubt as to Kanchan Kumar Pal being associated with the business of Akshaya Kumar Pal at the relevant time. Mr. Sen admits that the evidence of Kanchan Kumar Pal may not be very satisfactory on all points. He, however, tries to explain the infirmities in the evidence of Kanchan Kumar Pal by saying that Kanchan Kumar Pal was then only a young boy of about 18 or 20 years and he has given evidence after a long lapse of time as to events which came to his knowledge when he was of tender age. Mr. Sen has further admitted that the evidence of Kanchan Pal with regard to the earlier payment of Rs. 5,Q00, the execution of the agreement for sale, the institution of suit for recovery of possession against the tenant, the realisation of rents from the tenant; who was in occupation of the property at the time of the purchase, the payment of Corporation rates and taxes and the execution of the deed of gift in favour of Parulbala are all based on what he had heard from Akshaya and the impression that Kanchan Pal had formed from what he had heard from Akshaya and not of any personal knowledge of Kanchan Pal with regard to any of those facts. He has, however, stated that Kanchan Pal has personal knowledge of the payment of Rs. 8,000 by Akshaya to his brothers-in-law, the three Pal Defendants. It is Mr. Sen''s contention that the evidence of Kanchan Pal which is based on what he had heard from Akshaya and the impressions that he formed from what he had heard from Akshaya is relevant and admissible as part of res gesta. In support of this contention he has referred to the decisions in the case of Chhotka Vs. The State, . Mr. Sen has argued that the evidence or Kanchan Pal and the entry in the books of the business of Akshaya clearly indicate that Akshaya paid the sum of Rs. 8,000 for the purchase of the property and Mr. Sen has argued that payment of the consideration money is one of the most important factor to be taken into consideration in considering a case of benami. Mr. Sen has submitted that Akshaya had been in possession of the property after the possession of the property had been recovered from the tenant.

Mr. Sen has argued that till possession of the property could be recovered Akshaya, in view of his nature and character and the confidence reposed in the brothers-in-law, might not have taken the trouble to ascertain as to how rents were being realised as, according to Mr. Sen, Akshaya had left the entire matter with his brothers-in-law. Mr. Sen has submitted that there is no reason to disbelieve the evidence of Sudhir Chandra Patitundi who has stated that even Parulbala had told him that Parulbala was a mere benamder and Akshaya was the real owner of the property. Mr. Sen has argued that the recitals in the deed of gift are not binding on Akshaya. It is his argument that no reliance should be placed on the said recitals as Akshaya was an illiterate person and Akshaya had understood the said transaction to be one of conveyance of the property to his wife Parulbala in accordance with his instructions. Mr. Sen has further argued that the recitals in the deed of gift should not be considered to be any evidence of the truth of the settlements recited, and in, support of this argument Mr. Sen has referred to the following decisions: Harendra Nath Mukherji and Others Vs. Hari Pada Mukherji and Others, ; 21 CWN 225 (Privy Council) ; Rup Narain and Anr. v. Mussamat Gopal Devi and Ors. L.R. 36 IndAp 103 and Lala Brijlal v. Mussammat Inda Kunwar and Ors. (1913) 18 C.W.N. 649 (P.C.). Mr. Sen has finally argued that the question of onus is now really immaterial after evidence had been led by both the sides. It is his submission that the Pal Defendants who have withheld material evidence from this Court should not be permitted to rely on any abstract doctrine of onus. In support of this contention that any part) who chooses to withhold material evidence from Court should not be permitted to rely on any abstract doctrine of onus, Mr. Sen has referred to and relied on the following decisions: Murugesam Pillai v. Manickavasaka Pandara and Ors. L.R. 44 IndAp 98 and Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, .

It will be convenient at this stage to consider the decisions cited from the Bar.

The case of Bhuban Mohini Dasi and Ors. v. Kumudbala Dasi and Ors. (Supra) was concerned with the question whether certain properties standing in the name of a female member were really joint family properties in her benami name or were the personal properties of the lady. It was held on a consideration of the facts and circumstances of the case that the properties really belonged to the joint family and the lady was only a benamder. Mr. Manotosh Mookerjee, the learned Counsel for the Pal Defendants, has relied on the following observations:

The rule thus enunciated must be coupled with the elementary principle that the burden of proof lies upon the person who asserts that the apparent is not the real sate of things. It is important to bear in mind in this class of cases that, as pointed out by Lord Philimore in 25 CWN 409 (Privy Council) the decision of the Court should rest not upon suspicion but upon legal grounds established by legal testimony. This recalls the earlier pronouncements to the same effect by Lord Westbury in Sreeman Chunder v. Gopal Chunder 11 M.I.A. 29 and by Sir Lawrence Jenkins in Manakumari v. Bijay Singh L.R. 44 LA. 72. But we are not unmindful that, in the words of Lord Hobhouse in Ima Parashad v. Gandharap Singh L.R. 14 LA. 127 and of Lord Shaw in 23 CWN 321 (Privy Council) as benami transactions are very familiar in Indian practice, even a slight quantity of evidence to show that it was a sham transaction may suffice for the purpose. The person who impugns its apparent character must not rely, however, solely on probabilities, as Lord Buckmaster observed in 22 CWN 530 (Privy Council) . He must show something definite to establish that it is a sham transaction, on the principle that the burden of proof lies upon the person, who claims contrary to the tenor of a deed and alleges that the apparent is not the real state of things.

Mr. P. K. Sen, the learned Counsel for the Plaintiff, relies on the observation of Lord Atkinson in Kenvick v. Kerwick L.R. 47 IndAp 274 quoted in the said decision in Bhuban Mohini Dasi v. KumudbaLa Dasi (Supra, p. 139):

It has been established by the decisions in the cases of Gopeekristo Gosain v. Gxmgapersad Gosain 6 M.I.A. 53 and Moulvi Sayyud Uthur Ali v. Bebee Uraf Fatima. 13 M.I.A. 132 that owing to the wide-spread and. persistent practice which prevails amongst the natives in India, whether Mahomedan or Hindu, for owners of property to make grants and transfers of it benami for no obvious reason or apparent purpose, without the slightest intention of vesting in the done any beneficial interest in the property granted or transferred, as well as the usages which these natives have adopted and which have been protected by statute, no exception has ever been engrafted on the general law of India negative the presumption of the resulting trust in favour of the person providing the purchase money, such as has, by the Courts of Chancery in the exercise of their equitable jurisdiction, been engrafted on the corresponding law in England in those cases where a husband or father pays the money and the purchase is taken in the name of a wife or child. In such a case there is, under the general law in India, no presumption of an intended advancement as there is in England.

The following observations (1) based on a consideration of a number of authorities "may also be usefully quoted:

The most important test to be applied in these cases is, as observed by Mr. Ameer Ali in Nrityamoni v. Lakan Chandra ILR 43 Cal. 660 the source whence the consideration came. Sir George Farwell formulated the same test in different language, when he observed in Bilas Koer v. Degraj Ranjit Singh L.R. 42 IndAp 202 that where it is asserted that an assignment in the name of one person is really for the benefit of another person, the principle applies that the trust of the legal estate results to the man who pays the purchase money. To the same effect is the decision of the Judicial Committee in Parbati v. Baikuntha 18 C.W.N. 428 which recalls the earlier pronouncements by Lord Campbell in Dhurum Das v. Shama Soondari 3 M.IA. 229 and by Knight Bruce, L.J. in Gopeekristo v. Gungapersad 6 M.I.A. 53. Where, however, from the lapse of time, direct evidence of a conclusive or reliable character is not forthcoming, as to the payment of consideration, the case must be dealt with on reasonable probabilities and legal inferences arising from proved or admitted facts. Sir Arthur Wilson emphasized this when he observed in Dalip v. Chaudhrian Nawul Kunwar L.R. 35 LA. 104 that if the evidence on neither side is wholly convincing as to the fundamental criterion, namely, the source of the purchase money, if the evidence given and withheld is open to adverse criticism, the Court must rely on the surrounding circumstances, the position of the parties and their relation to one another, the motives which could govern their actions and their subsequent conduct, including their dealings with or enjoyment of the disputed property: see Upendra Nath v. Purendra Nath 21 C.W.N. 280. We must further look to the substance of the transaction as evidenced in the deeds of the parties, not permitting the real question to be obscured by what Knight Bruce, L.J. calls in Hanooman Pershad v. Babooee Munraj 6 M.I.A. 393, the form of expression, the literal sense, nor by what Lord Macnaghten describes in Lal Achal Ram v. Raja Kazim Hossain L.R. 32 LA. 113 as exhibitions of the art of the conveyance in the shape of recitals of obviously untrue statements introduced to impart some additional solemnity to an instrument.

In the case of Dalip Singh and Ors. v. Chaudhrain Nawal Kunwar the question for consideration was the nature of a mortem Supra, p. 107 gage transaction. The subordinate Judge held the transaction to be a fictitious and benami one. The High Court on appeal had reversed the decision and held that the transaction was a genuine transaction and not a benami one. On appeal to the Judicial Committee, the Judicial Committee upheld the decision of the High Court and observed:

There was some evidence on each side bearing directly on the character of the transaction, but on neither side was that evidence wholly convincing. Persons whom one might have expected to be prominent witnesses were not called, and the evidence that was called is open to much adverse criticism. The testimony of one witness is described by the Judge who heard it as being worthless. In determining, therefore, which story is to be accepted, it has been found necessary in India, and it is equally necessary for their Lordships, to rely largely upon the surrounding circumstances, the position of the parties and their relation to one another, the motives which could govern their actions, and their subsequent conduct.

As their Lordships agree in the conclusion arrived at by the High Court, and substantially in the reasons for that conclusion, it is unnecessary to examine the evidence in detail, but it may be well briefly to indicate the principal considerations which seem to their Lordships to support the case of the Plaintiff.

The deed itself contains nothing suspicious. Its recitals show with substantial, accuracy Partab''s previous indebtedness, and the provisions of the deed are such as one expects to find in a deed embodying a real transaction.

In the case of Gorantala Parvatamma v. Veeragafldam Subbayya (Supra, p. 145) a Division Bench of the Madras High Court, while considering the question of the Plaintiff''s claim to certain properties in the name of a female member as properties belonging to the joint family and the female member being only a benamder, observed:

In a case of this sort the burden of proof is upon the Plaintiff and we are not to scrutinize and examine the Defendant''s case in the first instance: vide Protap Chandra Gope and Others Vs. Sarat Chandra Gangopadhya, . The Plaintiff must prove that a land standing in the name of a female member of the family was really purchased benami in her name for some ulterior purpose such as depriving him of his rights, and if that burden is not discharged it is unnecessary to examine the Defendant''s case.

In the case of Uman Parshad v. Gandharp Singh (Supra p. 31) the nature of a registered document admitted to have been executed had come up for consideration and it had been alleged that the transaction was benami and colourable. After considering the relevant facts and circumstances, the Privy Council held the transaction to be genuine and concluded the judgment by observing�

Thus we find that Fatteh Kunwar had gone on from 1866 to 1879 asserting herself to be in possession of this property as heir of Bisseur; and no assertion to the contrary was made during her lifetime. If she had made the contrary assertion, perhaps some proceedings might have been taken; but the lapse of time affords an additional reason why her grantee or representative should not be allowed to turn round and assert a directly contrary title. The result is that all these lines of consideration point in favour of the Plaintiff''s contention ; and inasmuch as he has the form of the transaction on his side, and everything points in favour of the substance of the transaction being with him too, his case should prevail.

Their Lordships will humbly advise Her Majesty to discharge the order of the Judicial Commissioner, and to dismiss the appeal to him with costs, and the Respondent must pay the costs of this appeal.

The case of Sarat Chunder Dey v. Gopal Chunder Laha (Supra) and the case of Narayana Aiyar and Ors. v. Rama Aiyar and Ors. (Supra, p. 404) deal with the question of estoppel. The question of estoppel was considered in the light of the particular facts of these cases. The following observations of the Madras High Court in Narayana Aiyar�s case (Supra), relied on by Mr. Mookerjee may be quoted�

On the whole I see no sufficient reason to recede from the opinion I expressed in Kandasami Filial v. Ragasami Nainar 23 M.L.J. 301 that a presumption is raised, when an adult man of full mental capacity attests a deed and when such a man has admittedly a tangible interest in the property affected by the deed, that his attestation has been taken as a proof of his consent to and knowledge of the correctness of the recitals in the deed and it lies upon the person, who contends that such an attester did not know all the recitals in the deed and did not consent to the alienation made by the deed, to prove the contrary. I do not intend to lay down that the attestation of a casual witness who had then no interest in the property affected by the deed must stop him for all time and when he afterwards acquires an interest in the property affected by the deed.

It may be noted that this decision was considered by a Full Bench of the Madras High Court in the case of C. Varamma and Ors. v. M. Gopahdasyya and Anr. ILR 41 Mad. 659 (F.B.) and was over-ruled as to its ruling on the question of limitation only.

The decisions in the cases Bhagwati Prasad Sah and Ors. v. Dulhim Rameswari Kuer (Supra); Repana Appalanarasimham and Ors. v. Repaka Udalama and Ors. (Supra); Arjun Sukla v. jujesthi Sukla and Anr. (Supra); Harihar Rajguru Mohapatra and Anr. v. Nabakishore Rajguru Mohapatra and Ors. (Supra) referred to by Mr. Mookerjee and relied on by him in support of his submission that what had been stated by the witnesses on behalf of the Plaintiff as to the ownership of 100 Tarak Pramanik Road on the basis of what they had heard from Akshaya, is not admissible in evidence, deal with the question of admissibility of evidence on statements made by deceased persons and illustrate the principle clearly laid down in Section 32(3) of the Evidence Act. I do not, therefore, consider it necessary to deal with these cases at any great length. I have, however, to note that the decision of the Andhra Pradesh High Court in the case of Repaka Appalanarasimham and Ors. v. Repaka Udalama and Ors. (Supra ) also considers the question of benami and holds, following the decision of the Federal Court in AIR 1949 88 (Federal Court) that it is settled law that the onus of establishing the transaction as benami is on the person asserting it and that it must be strictly made out, and that in the absence of evidence the apparent title must prevail. The said decision further holds, following the decision of the Madras High Court in the case of Sitamma v. Sitapati Rao ILR 1938 Mad. 220 that the mere fact of establishing that consideration was paid in not sufficient to establish the claim of benami.

On the question of admissibility of Kanchan Pal''s evidence based on what he had heard from Akshaya, Mr. P. K. Sen has referred to the decision in the case of Chhotka v. State (Supra, p. 487). Mr. Sen relies on the following observations:

Section 6 of the Evidence Act and the succeeding sections embody the rule of admission of evidence relating to what is commonly known as res gestae. Acts or declarations accompanying or explaining the transaction or the facts in issue are treated as part of the res gestae and are admitted as evidence. They are, roughly speaking exceptions to the hearsay rule. Section 6 provides that facts which though not in issue are so connected with the facts in issue as to form part of the same transaction are relevant whether they occurred at the same time or place or at different times and places. Illustration (A) attached to the section is, instructive. ''A'' is accused of the murder of ''B'' by beating him. Whatever was said or done by A or B or by the bystanders at the beating or so shortly before or after it as form part of the transaction is relevant fact.

The obvious ground of admissions of such evidence as is referred to in Section 6 is the spontaneity and immediacy of the act or declaration in question. The facts deposed to must form part of the transaction. The requirement is that the statement sought to be admitted must have been made contemporaneously with the act or immediately after it and not at such an interval of time from it as to allow of fabrication or to reduce the statement to a mere narrative of past events.

In the case of Banga Chandra Dhur Biswas and Ors. v. Jagat Kishore Chowdhuri and Ors. (Supra ) the question of evidentiary value to be attached to recitals in a deed executed by a Hindu widow alienating the property, came to be considered. The Judicial Committee held�

Speaking generally, the necessity which they put forward is the necessity of providing means for payment of debts of the deceased, of the expenses consequent on the sradh and the satisfaction of debts incurred by the widows for the purpose of obtaining the money necessary for the payment of the debts of the deceased, and of the expenses of religious ceremonies. In general terms the facts recited would establish the necessity alleged, but it is well established that such recitals cannot by themselves be relied upon for the purpose of proving the assertions of fact which they contain. Indeed it is obvious that if such proof were permitted the rights of reversionary could always he defeated by the insertion of carefully prepared recitals. Under ordinary circumstances and apart from statute recitals in deeds can only be evidence as between the parties to the conveyance and those who claim under them.

But in- such a case as the present, their Lordships do not think that these recitals can be disregarded, nor, on the other hand can any fixed and inflexible rule be laid down as to the proper weight which they are entitled to receive. If the deeds were challenged at the time or near the date of their execution, so that independent evidence would be available, the recitals would deserve but slight consideration, and certainly should not be accepted as proof of the facts. But, as time goes by and all the original parties to the transaction and all those who could have given evidence on the relevant points have grown old or passed away, a recital consistent with the probability and circumstances of the case assumes greater importance and cannot lightly be set aside, for it should be remembered that the actual proof of the necessity which justified the deed is not essential to establish its validity. It is only necessary that a representation should have been made to the purchaser that such necessity existed, and that he should have acted honestly and made proper inquiry to satisfy himself of its truth. The recital is clear evidence "of the representation, and if the circumstances are such as to justify a reasonable belief that an inquiry would have confirmed its truth, then, when proof of actual inquiry, has become impossible, the recital, coupled with such circumstances, would be sufficient evidence to support the deed. To hold otherwise would result in deciding that a title becomes weaker as it grows older, so that a transaction perfectly honest and legitimate when it took place would ultimately be incapable of justification merely owing to the passage of time. (Pages 252-53) The Judicial Committee further observed:

Their Lordships think it right to add, in conclusion, that they do not agree with the decision of the High Court as to the effect of the attestation of two of the deeds by the deceased Plaintiff. They think it may be safely accepted that he did, in fact, attest them. But attestation proves no more than that the signature of an executing party had been attached to a document in the presence of a witness. It does not involve the witness in any knowledge of the contents of the deed nor affect him with notice of its provisions. It could, at the best, be used for the purpose of cross-examination, in order to extract from the witness evidence to show that he was, in fact, aware of the character of the transaction affected by the document to which his attestation was affixed. (Page 255)

The case of Lata Brij Lal v. Mussammat Indd Kunwar and Ors. (Supra ) was concerned with the question of alienation by a Hindu widow and the Privy Council ruled that in case of any alienation by a Hindu widow, the recitals in the deed of mortgage or sale as to Legal necessity are not to be treated as evidence by themselves of the facts recited.

In the case of Harendra Nath Mukherji and Ors. v. Hari Pada Mukherji and Ors. (Supra ) the Court was considering the question of alienation by a Hindu widow and the Court held that recitals in any such document of transfer by the widow do not by themselves prove the facts contained in the document. The Court further held that mere attestation of a deed by a reversionary without knowing the real facts would not stop the reversionary from challenging the alienation.

The case of Rup Narain and Anr. v. Mussamat Gopal Devi and Ors. (Supra ) is not of any material assistance in the facts of the present case and in the peculiar facts of that case, it was held that the claim of the Plaintiff was unaffected by any estoppel arising from the assent of the attesting witness.

The case of Muragesam Pillai v. Manickavasaka Pandara and Ors. (Supra, p. 103) has been cited by Mr. P. K. Sen in support of his contention that the Court should not rely on the abstract doctrine of onus. In this case as the Defendants have withheld the books of account and suppressed the same from Court. Mr. Sen relies on the following observations of the Judicial Committee:

A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of onus of proof, and failing, accordingly, to furnish to the Court the best material for its decision. With regard to third parties, this may be right enough�they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, in their Lordships'' opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition. The present is a good instance of this bad practice.

In the case of Gopal Krishmji Ketkar v. Mohamed Haji Latif and Ors. (Supra ) the Supreme Court has referred to the above observation of the Judicial Committee just quoted with approval and has reiterated the same principle.

Mr. Sen has also referred to the decision of the Privy Council in the cases of Farid-un-Nisa v. Mukhtar Ahmed and Anr. L.R. 52 LA. 43 and Thahurain Tara Kumari v. Maharaja Chandra Manteshwar Prasad Singh L.R. 52 LA. 450 to show what the position pardanasin lady is and what conditions are required to be satisfied for upholding the validity of any deed executed by a pardanasin lady. As the principles are well-settled and there is no dispute with regard to the same, I do not consider it necessary to deal with these cases at any length.

The argument of Mr. Sen that there are two cases before the Court, one case made by the Plaintiff and the other case made by the Defendants, and if the case made by the Defendants be rejected the case made by the Plaintiff should be accepted, to my mind, is not sound. Adopting the same argument, it can well be urged that if the case of the Plaintiff is not accepted, the case made by the Defendants must necessarily succeed. If the case of any of the parties be accepted, the case made by the other party will naturally fail. But it does not necessarily follow, that if the case of the Plaintiff be not accepted, the case of the Defendants is true. It also does not necessarily follow that, if the case of the Defendants is not accepted, the case of the Plaintiff must be true. It is not for the Court to speculate as to what possible other cases can arise, in either event of rejecting the case of the Plaintiff or of the Defendants. To persuade the Court to accept the case of the Plaintiff, the Plaintiff has got to establish the case of benami on proper materials. The question of onus may not be very material as both sides have led evidence, but the burden of proving the case rests essentially with the Plaintiff. In deciding the case. the Court will undoubtedly take into consideration all the relevant facts and circumstances and the evidence that have been adduced. But, if on a consideration of the entire evidence and all the relevant facts and circumstances the Court comes to the conclusion that the Plaintiff''s case has not been established, the Plaintiff''s suit must fail, even though the Court may not be satisfied with the case made by the Defendants and the nature of evidence adduced on behalf of the Defendants. If the evidence adduced on behalf of the parties with regard to the nature of the transaction appear to the Court not to be sufficiently convincing, the Court will take into consideration the surrounding circumstances, the position of the parties, their relation to one another, the motives which govern their actions and their subsequent conduct. After taking the entire evidence and all these facts and circumstances into consideration, if the Court be not satisfied with regard to the case of benami sought to be made by the Plaintiff, the Court must necessarily dismiss the Plaintiff''s action, even if the Court be of the opinion that the evidence of the Defendants on certain aspects is not very satisfactory. The nature and quantum of evidence that may be necessary for establishing a case of benami will naturally depend on the facts of each particular case. It is, however, clear that there must be proper materials which will justify the Court in coming to the conclusion that the transaction is a benami transaction and in the absence of proper materials the Court should not enter into any speculation as to the nature of the transaction. On the question of admissibility of the evidence of Kanchan Pal and the other witnesses of the Plaintiff based on what they had heard from Akshaya, I am of the opinion that such evidence is not admissible in the facts of the instant case in view of the provisions contained in Section 32 of the Evidence Act. With regard to the evidence of Kanchan Pal as to payment of Rs. 3,000 by Akshaya to the three brothers-in-law which the learned Counsel for the Plaintiff had contended, in spite of what Kanchan Pal had actually said from the witness-box, to be based on what Kanchan Pal had heard from Akshaya and gathered from the talks he had with Akshaya, I am of the opinion that the said evidence of Kanchan Pal, even if I have to accept the contention of Mr. Sen that Kanchan Pal''s evidence is really based on what he had heard from Akshaya and what Kanchan Pal had gathered from the talks he had with Akshaya, notwithstanding what Kanchan had really said from the witness-box, will not be admissible in the facts of the instant case as res gesta. The principles underlying Section 6 and the succeeding sections as to the rule of admission of evidence relating to what is commonly known as res gesta have no application in the facts of the instant case. There is nothing to indicate in the evidence of Kanchan Pal as to when and under what circumstance Akshaya had made any such statement to him, if Akshaya at all had made any such statements to him. The decision in the case of Chhotka v. State Supra which deals with a criminal case and lays down the principle as to admissibility of evidence relating to what is known as res gesta, is of no assistance to Mr. Sen in the facts of the present case. Even if I had held the evidence of Kanchan Pal with regard to payment of Rs. 3,000 by Akshaya to his three brothers-in-law to be admissible, I would have had no hesitation in placing no reliance on the testimony of Kanchan Pal. The evidence of Kanchan Pal, to my mind, is worthless and wholly untrustworthy. I have already discussed his evidence and recorded my findings and impressions of his testimony and I am unable to place any reliance on the same. I have already observed that in the facts of the instant case, to my mind, the evidence of the witnesses called on behalf of the Plaintiff as to Akshaya''s ownership of the property based on what they have heard from Akshaya, is not admissible. Even if I had come to the conclusion that such evidence was admissible, I would not have attached any weight to such testimony in the facts of the instant case. I have already discussed the evidence adduced on behalf of the Plaintiff and I am unable to place any reliance on the testimony of the said witnesses as to Akshaya''s ownership of the property based on what the said witnesses have heard from Akshaya or Parulbala. In the facts of the instant case, it is not necessary, in my opinion, to consider the effect of the decisions cited from the bar on the question of estoppel, if any, on the part of Akshaya because of his witnessing the deed of gift in favour of Parul and the will executed by Parulbala. I shall state my reasons as to why the said decisions are not of any particular importance in the facts of the present case later on. I have already discussed at length the evidence adduced on behalf of the parties. And I have to observe that there is no depend-, able evidence on the Plaintiff''s side which can justify any conclusion as to the benami nature of the property as claimed by Akshaya in this suit. I have already observed that though the evidence of Rajani and Lakshminarayan may not be quite satisfactory on some points, I am inclined to accept their evidence on the whole, as their evidence is corroborated by documentary evidence and also the evidence of the pleader and the Solicitor. As already indicated, I have no hesitation in accepting the testimony of the pleader and the Solicitor.

I shall now take up the issues for consideration.

Issue No. 1:

Did Akshaya Kumar Pal request and or instruct the Defendants Nos. 1, 2 and 3 to purchase the premises No. 100 Tarak Pramanik Road in the benami name of his wife Parulbala Pal as alleged in para. 4 of the plaint ?

Apart from the oral testimony of Kanchan Kumar Pal there is no evidence to support the case made in para. 4 of the plaint that Akshaya requested or instructed the Defendants Nos. 1, 2 and 3 to purchase the premises No. 100 Tarak Pramanik Road in the benami name of his wife Parulbala. I have already observed that the evidence of Kanchan Pal is absolutely worthless and I am unable to place any reliance on his testimony. It may be noted that even Kanchan Pal in course of his evidence did not support the case made in para. 4 of the plaint. It was the evidence of Kanchan Pal in his examination-in-chief that Akshaya instructed the Defendants Nos. 1, 2 and 3 to purchase the property in the name of Akshaya. Later on, in course of his cross-examination Kanchan stated that the Defendants Nos. 1, 2 and 3 advised and persuaded Akshaya Kumar Pal to purchase the said property in the name of Parulbala. It is important to note that no explanation has been offered as to why Akshaya Kumar Pal would request or instruct his three brothers-in-law, the Defendants Nos. 1, 2 and 3, to purchase the premises No. 100 Tarak Pramanik Road in the benami name of his wife and it is interesting to note that there is no evidence that Akshaya had ever entrusted his three brothers-in-law with any other work or had requested or instructed his three brothers-in-law to do any other work. This issue must, therefore, be answered in the negative.

Issue No. 2:

Did Akshaya Kumar Pal pay to the Defendants Nos. i, 2 and 3 and Parulbala Pal a sum of Rs. 11,000 as alleged in para. 5 of the plaint-

On this issue also apart from the oral testimony of Kanchan Pal and the entry relating to payment of Rs. 8,000 in the books of the business of Akshaya Kumar Pal, there is no other evidence. I have already observed that the oral testimony of Kanchan Pal is wholly unacceptable to me. I may recall that it was the positive testimony of Kanchan Pal that Akshaya paid Rs. 2,500 to his brothers-in-law at the time of the execution of the agreement for sale and the three brothers-in-law paid the said sum to the vendor. Kanchan Pal later on completely changed his testimony. Learned Counsel appearing on behalf of the Plaintiff has argued that the evidence of Kanchan Pal shows that Kanchan has no personal knowledge of the payment of Rs. 3,000 by Akshaya to is three brothers-in-law and about the said payment of Rs. 3,000 Kanchan Pal heard from Akshaya and Kanchan Pal gathered his impression of payment of the said sum of Rs. 3,000 by Akshaya to his brothers-in-law from what Kanchan Pal heard from Akshaya. I have already stated that, in my opinion, the said evidence of Kanchan Pal is not admissible. In any event, the said evidence is clearly unacceptable and I can attach no weight to the said testimony of Kanchan which I also do not believe. It may be noted that there are no entries in the books showing payment of the sum of Rs. 3,000. The entry in the books of the business of Akshaya Kumar Pal relating to payment of Rs. 8,000 is of no assistance in the facts of the instant case. An entry in the books is merely a corroborative evidence and unless there is independent proper evidence which the entry in the books seeks to corroborate, very little weight can be attached to the entry in the books. In the instant case, apart form the evidence of Kanchan Pal there is no evidence to support the transactions relating to payment of Rs. 8,000 which has been entered in the books of the business of Akshaya. I have already stated that the evidence of Kanchan Pal is wholly unacceptable to me. It is also to be noted that; the entry is a very unusual one and the explanation sought to be offered that the said entry was made in that form on the advice of the income tax lawyer is undoubtedly an imagination of the fertile brain of Kanchan Kumar Pal. The entry by itself also does not indicate that Rs. 8,000 was paid to Akshaya for purchase of 100 Tarak Pramanik Road or was paid to the three brothers-in-law for purchase of the said property. Bt has to be borne in mind that on that date much more than Rs. 8,000 had to be paid for the purchase of 100 Tarak Pramanik Road. It has also to be borne in mind that the consideration money of Rs. 100,399 was paid mainly in 1,000 rupee notes, some in 100 rupee notes and only Rs. 99 in small notes. Kanchan Pal''s evidence had been that Rs. 8,000 were taken from the till in small notes of Rs. 5 and Rs. 10 denominations. Unless the earlier payment of Rs. 3,000 is established, the entry in the books relating to payment of Rs. 8,000 really becomes meaningless. If the entry related to payment to Akshaya of Rs. 8,000 for purchase of 100 Tarak Pramanik Road, I see no reason why it was only stated in the entry ''for purchase of a house property'' and why no mention of the property, namely 100 Tarak Pramanik Road, was made. If the entry in fact related to payment to Akshaya for the purchase of the said house property and was made in the books in that form on the advice of any lawyer, I feel sure that the property would also have been mentioned so that the alleged purpose of satisfying the taxation authorities might be later served. It appears to me that the said property was not mentioned as there was no sufficient space to write out the description of the property when the purpose ''for buying a house'' came to be mentioned in the said entry. On the very same page there is another entry showing a payment of Rs. 6,000 to Bipin Behari Das, the other partner. In fact, the said entry is immediately above the entry relating to payment of Rs. 8,000 to Akshaya. In the entry relating to payment to Bipin there is no mention of the purpose and Kanchan Pal was unable to throw any light. I am inclined to hold that in the entry relating to payment of Rs. 8,000 the words ''for the purchase of a house'' were not originally there and the said words came to be introduced in the entry at a later stage and as there was no space at that time to write anything further, nothing else could be written and the description of the property could not be mentioned. However, I do not consider it necessary to come to any definite conclusion on this aspect. Suffice it to say that the entry does not really prove anything and does not in any event prove payment of Rs. 8,000 to the Defendants Nos. 1, 2 and 3 for the purchase of premises No. 100 Tarak Pramanik Road. The conduct of the parties with which I shall deal presently also indicates, to my mind, that no payment was made by Akshaya to the Defendants Nos. 1, 2 and 3. There has been no attempt to make any case of payment to Parulbala Pal and there is not any evidence to that effect. This issue, therefore, must also be answered in the negative.

Issue No. 3:

Did the Defendants Nos. 1, 2 and 3 make representation to Akshaya Kumar Pal that premises No. 100 Tarak Pramanik Road had been purchased in the benami name of Parulbala as alleged in para. 6 of the plaint -

The only evidence in support of this issue consists of some oral testimony of Kanchan Pal which I reject and of some suggestions made to Rajani which Rajani denies. In view of the answers to issues Nos. 1 and 2 and as there is no evidence in support of this issue, this issue is also answered in the negative.

Issue No. 4:

Was Akshaya Kumar Pal, the real owner of the property in suit, viz. premises No. 100 Tarak Pramanik Road, and was his wife Parulbala a mere benamder of the said Akshaya Kumar Pal-

This is the main and the real issue in the suit. In view of the answers given to issues Nos. 1 and 2, this issue has to be answered in the negative. I have to observe in this connection that the surrounding circumstances, the nature of relationship between the parties and the conduct of the parties clearly indicate, to my mind, that Akshaya was not the real owner of the property. In the instant case, the suit is being heard a long time after the transaction in question. Akshaya is also now dead and, in view of the long lapse of time, oral testimony necessarily loses some of its weight and I have to attach particular importance to the surrounding circumstances, the nature or relationship between the parties and the conduct of the parties in coming to the proper conclusion. After a very careful consideration of these factors I have no hesitation in coming to the conclusion that Akshaya was not the real owner of the property and Parulbala was not the benamder of Akshaya. There is nothing to indicate that the relationship of Akshaya with his brothers-in-law was particularly intimate and cordial and that Akshaya had implicit faith in them. The way Akshaya has been painted, it seems improbable that Akshaya could have implicit faith in his brothers-in-law. It is in evidence that Akshaya had dealt with other immovable properties and Akshaya was a businessman. There is no evidence to suggest that; in any other dealing or transaction or in any other matter relating to business of Akshaya, Akshaya had ever sought the assistance of his brothers-in-law or had entrusted his brothers-in-law with anything. Akshaya had also other brothers-in-law than the Defendants Nos. 1, 2 and 3, and there is no explanation as to why Akshaya should select the Defendants Nos. 1, 2 and 3 of all his brothers-in-law. It seems very strange that Akshaya will entrust three brothers-in-law with this particular job and will pay all the moneys to the three brothers-in-law. No explanation could be offered as to why should Akshaya entrust the three brothers-in-law and not one of them or two of them or all of them. The only explanation, to my mind, is that Akshaya has made the case of entrustment with these three brothers-in-law who happen to be the Defendants, as the property had been purchased in the names of these three Defendants. As the property stood in the names of the three Defendants, Akshaya had necessarily to make the case that he had entrusted these three brothers-in-law. If there had been any truth in the case of Akshaya that Akshaya was really purchasing the property, I would certainly have expected Akshaya to take some active part in the matter of negotiation, in the matter of execution of the agreement for sale and in the matter of the selection of the Solicitor. Even if I could persuade myself to accept that Akshaya because of his nature or some kind of faith in his brothers-in-law did not take any interest upto that stage, I can find no explanation as to why Akshaya would not be present at the time of the execution of the conveyance. In any event, after the conveyance had been executed Akshaya would certainly have asked for the document and would have taken possession and custody of the conveyance. It is to be noted that at the time when the property was purchased, the property was tenanted. Even assuming that Akshaya, for some reason or other because of his nature or otherwise, would not insist on taking possession of the document, he would certainly take possession of the property and would reap the benefit of his investment by collecting rents from the tenant. He would also certainly take steps to see that the name of his wife was mutated and he would himself arrange for payment of rates and taxes. It cannot by any stretch of imagination be said that as Akshaya had entrusted his brothers-in-law to purchase the property, the entrustment could continue even after the completion of the transaction for years to come. There is nothing to show as to how and under what circumstances Akshaya did come to know of the fact that the property had not been purchased in the name of Parulbala after about 1\\ years. It is inconceivable that if Akshaya had been the real owner of the property, that this state of affairs could have continued. The further conduct of Akshaya in attesting the deed of gift executed by the Defendants Nos. 1, 2 and 3 in favour of Parulbala clearly goes to show that Akshaya was not the real owner of the property. It is the positive evidence of the pleader and I have no hesitation in accepting the same that the deed of gift had been read out in the presence of Akshaya. Akshaya, therefore, knew what the contents of the deed of gift were. It is not necessary for me, in the facts of the instant case, to decide as to whether Akshaya having attested the said deed with full knowledge of its contents, is estopped from raising any contention contrary to the said deed, but I have no doubt in my mind that the said act of Akshaya proves that Akshaya was not the owner, of the property and the three brothers were the real owners of the property. The further conduct of Akshaya in witnessing the will executed by Parulbala lends unequivocal support to the case that Akshaya was not the owner of the property and Parulbala had become owner of the property on the basis of the deed of gift executed in favour of Parulbala by her three brothers. I have no hesitation in coming to the conclusion that the signatures appearing in the will of Parulbala and of Akshaya are the signatures of Parulbala and of Akshaya and that Akshaya had affixed his signature with full knowledge of the contents of the will. I have also to note that Akshaya had accepted the deed of gift and Parulbala became the owner of the property by virtue of the deed of gift and the said position was accepted by Akshaya. That Akshaya had accepted this position is quite clear from the subsequent conduct of Akshaya and the evidence of Sudhir Chandra Patitundi who has stated that Akshaya would collect rents and would pay the money to Parulbala and he would accept rent receipts granted by Parulbala and he has in fact produced rent receipts granted by Parulbala and one by Akshaya for and on behalf of Parulbala. The conduct of the parties in the instant case goes to show that the conveyance in favour of the Defendants Nos. 1, 2 and 3 and the deed of gift executed by them in favour of Parul are all true, genuine and correct transactions and the conduct of the parties and the surrounding circumstances which I have already considered, furnish the best evidence and prove that Akshaya was not the real owner of the property. This issue is, therefore, answered in the negative.

Issue No. 5:

Is the deed of settlement dated December 26, 1952, valid and binding-

The validity of the deed has been challenged on two main grounds, firstly, that the said deed of settlement cannot be valid as Pkrulbala was not the real owner of the property and only a mere benamder and, as such, Parulbala was not entitled to execute the deed of settlement and, secondly, on the ground that Parulbala being a pardanasin lady did not have independent legal advice and did not understand the nature, contents and effect of the said deed of settlement. As I have already held that Parulbala was not the benamder in respect of premises No. 100 Tarak Paramanik Road and she became the owner of the property on the basis of the deed of gift executed in her favour by the three brothers, the first ground necessarily fails. With regard to the second ground the evidence of the Solicitor clearly establishes that he had received personal instructions from Parulbala and he had discussed the whole matter with Parulbala herself and Parulbala executed the deed which was prepared in accordance with the instructions of Parulbala after having understood the nature, contents and effect of the same. I have no hesitation in accepting the testimony of the Solicitor and must, therefore, hold that Parulbala had independent legal advice and had duly executed the deed which was prepared in accordance with her instructions after having fully understood the nature, contents and effect of the same. The will which was earlier executed by Parulbala also indicates and establishes that the deed of settlement had in fact been executed on the basis of her instructions. This issue is, therefore, answered in the affirmative.

Issue No. 6:

Is the suit barred by limitation ?

In view of my findings on the other issues on the merits it is not necessary to answer this issue.

Issue No. 7:

To what relief�s, if any, is the Plaintiff entitled? -

In view of my answers to the earlier issues, I must hold that the Plaintiff is not entitled to any relief in this suit.

The suit is, therefore, dismissed. The Plaintiff will pay to the Defendants one set of costs.