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1975 Supreme(Gau) 16
GAUHATI HIGH COURT
BAHARUL ISLAM, J.
Praneswar Das and others -Appellant
Versus
Abharsharam Boj and others -Respondent
First Appeal No. 93 of 1971
Decided On : 11-06-1975
A.M. Majumdar and S.R. Bhattacharjee, S.R. Khaund and J.N. Sarma
Headnote:
LIMITATION ACT, 1908 - ARTICLE 120 - COURT FEES ACT - SECTION 7 (IV) (C) - SPECIFIC RELIEF ACT, 1963 - SECTION 34 - TRANSFER OF PROPERTY ACT - SECTION 41 - BENAMI TRANSACTION - BURDEN OF PROOF - POSSESSION - COURT FEE - VALUATION OF SUIT - JURISDICTION - ADVERSE POSSESSION - TITLE SUIT - PROBATE - MUTATION - REVENUE RECEIPTS - RENT RECEIPTS - EVIDENCE ACT, 1872 - SECTION 68 - HANDWRITING EXPERT - OPINION - SIGNATURE - CONSENT - MUTATION OF NAME - KATHIAN - JAMABANDI - CHITHA - PLAINT - MEMORANDUM OF APPEAL - OFFICE NOTE - DIVISION BENCH ORDER - COURT FEE DEFICIT - SUIT FOR DECLARATION - CONSEQUENTIAL RELIEF - AMOUNT OF RELIEF SOUGHT - ENTIRE ESTATE - DEFINITE SHARE OF ESTATE - ANNUAL REVENUE TO GOVERNMENT - PART OF ESTATE - JURISDICTIONAL VALUE - APPEAL DISMISSED WITH COSTS.
Fact of the Case:
The plaintiff filed a suit for a declaration that the purchase of the land described in the schedule A to the plaint by the registered deed dated 3-12-1927 in the name of Dukhuram was a benami purchase by, on behalf of, and for the plaintiff; for a declaration that the sale of the lands described in schedule C to the plaint to defendant No. 4 by Rangila by a registered deed dated 1-12-1959 was fraudulent and null and void; for a declaration that the decree granting Letters of Administration in favour of defendants Nos. 1 to 3 by the Additional District Judge, Gauhati in T. S. (Probate) No. 10 of 1962 in respect of the B schedule land was not binding on the plaintiff; and for confirmation of his possession in respect of the B schedule land and for recovery of possession of the C schedule land.
Finding of the Court:
1. The plaintiff has failed to establish that the purchase in question was benami. 2. The suit was barred by limitation. 3. The plaintiff has not acquired any title by adverse possession. 4. The suit was properly valued for pecuniary jurisdiction. 5. The plaintiff has not paid adequate court fee.
Issues: 1. Whether the suit is maintainable in this form? 2. Whether the suit is barred by limitation? 3. Whether the suit is bad for non-joinder of the Gauhati Development Authority, which purchased the interest of the defendant No. 4 by a registered sale deed before the institution of the suit? 4. Whether the suit is bad for misjoinder of causes of action? 5. Whether the different reliefs claimed in the suit can be combined together in one suit and whether one suit is competent to cover all these reliefs? 6. Whether the suit is properly valued and the plaint is adequately stamped? 7. Whether the purchase dated 3-12-1937 of the "A" schedule land by late Dukhuram was a banemi one for and on behalf of the plaintiff? 8. Whether the sale dated 1-12-1959 by late Rangila Dasya in favour of the defendant No. 4 is a collusive and fraudulent one? 9. Whether the probate granted by the Addl. District Judge, L. A. D., Gauhati in T. S. No. 10/62 is binding on the plaintiff? 10. Whether the plaintiff is estopped by his acts and conduct to institute this suit? 11. To what reliefs, if any, are the parties entitled?
Ratio Decidendi: 1. The burden of proof lies on the party assailing a transaction as benami, although the circumstances may be suspicious. 2. In such cases it is essential to take care that the decision of the Court rests not upon suspicion, but upon legal grounds, established by legal testimony. 3. The onus of establishing that a transaction is benami is on the person asserting benami nature of the transaction and it must be strictly made out. 4. The decision of the Court cannot rest on mere suspicion but must rest on legal grounds and legal testimony. 5. In the absence of evidence the apparent title must prevail. 6. The source of the consideration money is not the conclusive test to determine the question of a benami transaction. 7. It is to be considered along with other surrounding circumstances. 8. The plaintiff could not have filed the suit for mere declaration that the purchase of the A schedule land by registered deed dated 3-12-1927 was a benami purchase without seeking the reliefs of possession of the B and C schedule lands as in that case the suit would have been hit by Section 34 of the Specific Relief Act, 1963.
Final Decision: Appeal dismissed with costs.
JUDGMENT:- The plaintiff filed the suit out of which the present appeal arises, in the Court of the Assistant District Judge No. 1 at Gauhati, for a declaration that the purchase of the land described in the schedule A to the plaint by the registered deed dated 3-12-1927 in the name of Dukhuram was a benami purchase by, on behalf of, and for the plaintiff; for a declaration that the sale of the lands described in schedule C to the plaint to defendant No. 4 by Rangila by a registered deed dated 1-12-1959 was fraudulent and null and void; for a declaration that the decree granting Letters of Administration in favour of defendants Nos. 1 to 3 by the Additional District Judge, Gauhati in T. S. (Probate) No. 10 of 1962 in respect of the B schedule land was not binding on the plaintiff; and for confirmation of his possession in respect of the B schedule land and for recovery of possession of the C schedule land. The land described in schedule A measures 54B-1K-14 Lechas comprising the land measuring 43B-4K-11 Lechas described in Schedule B and 10 B. 2K. 19 Lechas described in schedule C to the plaint.
2. The plaintiffs case may be stated as follows :-
Domram and Kaluram were two brothers being the son of one late Dhaniram, Kaluram died leaving two sons, Dukhuram and Laghanu, Laghanu died leaving Baliram (defendant No. 5) and Dharjya Ram (defendant No. 6). Dukhuram died leaving his widow, Rangila only. Rangila died in 1960. The plaintiff is the son of Domram. The plaintiff alleges that he entered into an agreement for the purchase of the A schedule land from late Anandiram Das for a consideration of Rupees 1300/-. The agreement was effected by a registered deed dated 23-12-1927. An earnest money of Rs. 200/- was paid on the date of the agreement. The stipulation was that the balance of Rs. 1100/- of the consideration money would be paid within a month when the sale deed would be executed. Accordingly the plaintiff paid the balance sum of Rs. 1100/- on 3-12-1927 and purchased the land from Anandiram and took delivery of possession thereof. As the plaintiff was in Government service and as his two nephews, defendants Nos. 5 and 6, were jointly living with him he got the sale deed executed in the name of his cousin, Dukhuram, who was living separately from him. The plaintiff alleges that although the sale deed was executed in the name of Dukhuram the consideration money was paid by him; he himself took delivery of possession of the land and was in possession thereof; he paid the land revenue and exercised all his rights in respect of the land continuously since the date of purchase. After the death of Dukhuram there was some litigation in respect of the suit land, but it was he who was taking all steps in those litigations in the name of Rangila. He possessed the land through tenants and adhiars and realised rents in respect thereof. Dukhuram was keeping a shop at Shillong where he died about 30 years ago. After the death of Dukhuram he maintained Rangila at his house till about 5 years ago when she picked up a quarrel with his wife and left Shillong for her brothers home. Defendant No. 3, Chiroram Boj, was her brother. Defendant No. 2 is Chirorams son. Defendant No. 1 is the son of Rangilas sister. After a few months of her stay with defendant No. 3, Rangila fell ill. Taking advantage of that position defendants Nos. 1 to 3 got a registered sale deed dated 1-12-1957 executed by Rangila in the name of defendant No. 4, Harmohan Bora, and got the money misappropriated. The plaintiff had no knowledge of the sale till April, 1961 when he learnt it from the tenants when he went to collect the rents. On 27-5-1960 Rangila executed a will in respect of the B schedule land in favour of defendants Nos. 1 to 3. The plaintiff alleges that the will was collusive and involuntary. A few months after the execution of the will, namely, 15-6-1960, Rangila died. The plaintiff alleges that the purchase of the C schedule land by the defendant No. 4 w
