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HIGH COURT OF CALCUTTA
P. N. MUKHERJEE, P. K. SARKAR
KHABIRANNESSA BIBI - Appellant
Versus
SUDHAMOY BOSE, OFFICIAL LIQUIDATOR TO THE BERHAMPORE BANK LTD. - Respondent
A. F. O. D. 48 Of 1951
Decided On : NOVEMBER 26, 1957
BENAMI - OWNERSHIP - ORDER 21, RULE 63 OF THE CODE OF CIVIL PROCEDURE - SOURCE OF CONSIDERATION MONEY - POSSESSION OF PROPERTY - CUSTODY OF TITLE DEED - MOTIVE - COURT'S DECISION BASED ON ENTIRE EVIDENCE AND CIRCUMSTANCES - HUSBAND'S OWNERSHIP OF DISPUTED PROPERTY - WIFE AS BENAMDAR - SETTING ASIDE OF CLAIM ORDER - REVIVAL OF ATTACHMENT BEFORE JUDGMENT.
Fact of the Case:
In a suit under Order 21, Rule 63 of the Code of Civil Procedure, the plaintiff bank sought a declaration that the disputed property was the husband's property and liable to attachment for recovery of debts due from him, the wife being merely his benamdar. The trial court decreed the suit in part, holding that the wife was the benamdar of her husband in respect of the disputed property and setting aside the order in the claim case directing release of the said property from attachment.
Finding of the Court:
The court held that the disputed property was the husband's and the wife, in whose name the relative Kobala stood, was merely his benamdar. The court found that the husband was a busy lawyer with a decent income, living in a rented house and in need of a house of his own, while the wife had no funds for the construction of the building. The court also noted that the husband did not appear in the suit and was avoiding service of summons, while the wife took no steps to have him testify.
Issues: 1. Whether the disputed property was the husband's or the wife's. 2. Whether the wife was the benamdar of her husband in respect of the disputed property. 3. Whether the order in the claim case directing release of the said property from attachment should be set aside. 4. Whether the plaintiff bank was entitled to attach the disputed property before judgment.
Ratio Decidendi: 1. The court held that the source of consideration money is of paramount importance in determining ownership of property, and that the evidence showed that the husband, not the wife, supplied the money for the acquisition of the disputed land and the construction of the building thereon. 2. The court held that the wife's claim that she had received substantial cash amounts from her father and brother was unconvincing, and that the evidence showed that she did not have the funds for the construction of the building. 3. The court held that the husband's failure to appear in the suit and his avoidance of service of summons, as well as the wife's failure to take steps to have him testify, supported the inference that the husband was the real owner of the disputed property and that the wife was his benamdar. 4. The court held that the plaintiff bank was entitled to attach the disputed property before judgment, as it was the husband's property and the wife was merely his benamdar.
Final Decision: The court dismissed the appeal with costs, upholding the trial court's decision that the disputed property was the husband's and the wife was his benamdar, setting aside the order in the claim case directing release of the said property from attachment, and reviving the attachment before judgment.
( 1 ) THE appellant before us was defendant No. 1 in a suit under Order 21, Rule 63 of the Code of Civil Procedure. The suit has been decreed in part by the trial court and from the part decree the present appeal has been filed by the defendant No. 1 appellant.
( 2 ) THE suit arose under the following circumstances :
( 3 ) IN Money Suit No. 22 of 1948 of the Court of the Subordinate Judge of Berhampore, the plaintiff respondent, the Berhampore Bank Ltd. (now represented by the Court Liquidator as its Official Liquidator) claimed a sum of Rs. 73,420-10-3 from the appellant's husband Syed Sakhawat Hossain (who is respondent No. 2 in this appeal and who was defendant No. 2 in the court below) and their son Syed Golam Kader and, on certain allegations, attached before judgment the disputed properties (which are set out in Schedules Ka and Kha of the present plaint ). To that attachment, the appellant objected and filed a claim which was registered as Miscellaneous Case No. 33 of 1948) on the averment inter alia that the attached properties belonged to her and were in her possession in her own right at all relevant times. That claim was allowed by the court and the attached properties were directed to be released from attachment upon a finding of possession and prima facie title in favour of the appellant, the Court refusing to go into the question, raised by the respondent Bank that the appellant was the benamdar of her husband, to whom the suit properties belonged, upon the view that the question of benami could not be gone into in the claim proceeding, the Bank's remedy, if any, lying in a suit under Order 21, Rule 63 of the Code of Civil Procedure. Thereupon, the present suit was filed by the respondent Bank.
( 4 ) IN the suit, the appellant was made the principal defendant (No. 1) and the appellant's husband Syed Sakhawat Hossain, pro forma defendant (No. 2), and the prayer was inter alia for a declaration that the disputed properties were the latter's properties and as such liable to attachment for recovery of debts, due from him, the appellant having no title thereto or possession but being merely her husband's benamdar in respect thereof, and for the setting aside of the order in the claim case, directing release of the said properties from attachment. The suit was contested by the appellant who set up her title and possession in the disputed properties and denied the Bank's allegation of benami. The appellant's husband who was defendant No. 2 in the suit as stated above, did not enter appearance.
( 5 ) EVENTUALLY as we have stated hereinbefore the suit was decreed by the learned Subordinate Judge in part. He held inter alia that the appellant was the benamdar of her husband in respect of the disputed Ka schedule property which was owned and possessed by him and set aside the decision in the claim case directing release of the said property from attachment, and dismissed the appellant's claim, so far as that property was concerned declaring the plaintiff Bank's right to attach the same before judgment in Money Suit No. 22 of 1948 aforesaid. With regard to the Kha Schedule property the suit was dismissed upon the finding that in regard to its half share, claimed by the wife defendant No. 1 and comprised within the subject matter of the present suit and the claim proceeding and the release order, was the owner (sic ). The decree of the learned Subordinate Judge with regard to the 'ka' schedule property is the subject- matter of the present appeal which has been filed by the wife defendant No. 1 and we are concerned here only with that property, the trial court's decision, regarding the Kha schedule property, having been accepted by both parties.
( 6 ) THE appeal has been fully and fairly argued before us. The appellant's case was presented by Dr. Sen Gupta who, while not minimising the defects in his client's case, submitted with some force that, on the materials as they stood, the appellant was entit
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