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1954 Supreme(Bom) 129

HIGH COURT OF BOMBAY
BAVDEKAR, J.
Bhawanbhai Premabhai
Versus
Bai Vahali
First Appeal No.56 of 1951, from decision of Civil J. (Sr. Division), Surat, in Special Regular Civil Suit No.58 of 1949.
Decided On : 28-09-1954

Advocates:
C.K. Shah, for Appellants; B.G. Thakore, for Respondent (No.1).

Oral evidence is admissible to show that there was no contract or grant, or any other disposition of property.

Headnote:

EVIDENCE ACT - SECTION 91 AND 92 - ADMISSIBILITY OF ORAL EVIDENCE TO SHOW THAT A SALE DEED WAS A NOMINAL TRANSACTION - SECTION 91 AND 92 HAVE NO APPLICATION UNLESS THERE IS A CONTRACT, GRANT OR DISPOSITION OF PROPERTY.

Fact of the Case:

Plaintiff filed a suit for a declaration that certain so-called oral and written transfers made by her in favor of her brother defendant 1 were void, and if necessary for obtaining actual possession of the properties conveyed by the deeds to him. The plaintiff contended that she conveyed out of these properties lands at Limla and Kavas to defendant 1 by a sale deed dated 10-10-1944, for a consideration of Rs.3,999. Two other lands at Kavas were transferred at the behest of the plaintiff in the name of defendant 1 an 12-10-1944, the mutations showing that the consideration of the two transfers were the sums of Rs.1,575 and Rs.200 respectively. A third piece of land was transferred by the plaintiff to defendant 2 gratis on 30-1-1947, by giving information to the village officers upon which an entry was made by them in the record of rights.

Finding of the Court:

The court held that the plaintiff had proved her case that she had transferred the properties benami to defendant No.1 and without any consideration; that even though she had executed a sale deed in regard to them and gave a vardi to the village officers to transfer the properties to them, the agreement was that those transfers were not to be enforced against her.

Issues: Whether oral evidence was admissible to show that the sale deed of October, 1944, was a nominal transaction and that the agreement between the parties was that it was not to be enforced against the plaintiff.

Ratio Decidendi: Oral evidence is admissible to show that there was no contract or grant, or any other disposition of property. Sections 91 and 92 of the Evidence Act have no application unless in the first instance there is a contract, or a grant, or any other disposition of property.

Final Decision: Appeal dismissed.

Judgement

FACTS : -This is an appeal arising from a suit for a declaration that certain so called oral and written transfers made by her in favour of her brother defendant 1 were void, and if necessary for obtaining actual possession of the properties conveyed by the deeds to him. In regard to two other properties, the plaintiff had also asked for their possession, on the footing that though the properties had been purchased in the name of defendant 1 they were actually purchased by her from her own moneys, and the sale deed was taken in the name of defendant 1 benami.Finally, the plaintiff claimed by her suit for recovery from defendant 1 of a kanthi (necklace) which she alleged had been lent to defendant 1 at the time of the marriage of his daughter defendant 3 or its price.Defendant 2 was the son of defendant 1, and defendants 4 and 5 were the plaintiffs husbands nephews.It was not in dispute that the properties in suit which the plaintiff contended were purchased by her benami in the name of defendant 1 either belonged to the plaintiffs husband, or were acquired by her after his death from the income of the estate she inherited from him. The plaintiff conveyed out of these properties lands at Limla and Kavas to defendant 1 by a sale deed dated 10-10-1944, for a consideration of Rs.3,999.Two other lands at Kavas were transferred at the behest of the plaintiff in the name of defendant 1 an 12-10-1944, the mutations showing that the consideration of the two transfers were the sums of Rs.1,575 and Rs.200 respectively. A third piece of land was transferred by the plaintiff to defendant 2 gratis on 30-1-1947, by giving information to the village officers upon which an entry was made by them in the record of rights.The plaintiff contended that when her husband died, he had got no debts, and left a flourishing business which was carried on by her with the help of defendant 1. Defendant 1, however, persuaded her to convey her husbands properties to him. In the plaint she said that she conveyed these properties in order that defendants 4 and 5 should not harass defendant 1 after her death. At the trial, however, she said that she conveyed these properties to defendant 1, because she wanted to save harassment of herself.The plaintiff said that even though she had executed a sale deed in favour of defendant 1 she had received no consideration, that there was an agreement between her and defendant 1 that the lands were to remain with her, and the sale deed was not to be acted upon against her.With regard to the properties which had been transferred by her without a sale deed to defendant 1, she said she had actually not received any consideration for any of the transfers and that in any case the mutations were not sufficient for transferring the title to defendant 1.The contesting defendants were defendants 1 to 3. Defendants 4 and 5 seem to have taken the view that if the plaintiff succeeded in her suit, it would be better for them, and did not contest it.Defendants 1 to 3 contended that the plaintiff had transferred her properties in order to pay off the debts due by her husband, and it was not true that the properties other than the one which was given away were transferred without any consideration.So far as the kanthi which the plaintiff alleged had been given by her to defendant 1, he denied its receipt. He also contended that it was not true that the plaintiff had acquired from her own funds but in his name the remaining two properties.The learned trial Judge held that the plaintiff had proved her case that she had transferred the properties benami to defendant No.1 and without any consideration; that even though she had executed a sale deed in regard to them and gave a vardi to the village officers to transfer the properties to them, the agreement was that those transfers were not to be enforced against her.He held, further, that the plaintiff had proved that she had purchased benami the two pieces of lands in the name of defend

























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