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Goa High Court
K. N. SHUKLA, ADDL. J. C.
Sadassiva Rauji Gaitonde - Appellant
Versus
Jose Joaquim Fonseca - Respondents
First C. A. No. 9 of 1974
Decided On : 1 August 1975
CIVIL PROCEDURE CODE - ABATEMENT OF SUIT - LEGAL REPRESENTATIVES NOT BROUGHT ON RECORD WITHIN LIMITATION - EFFECT - BENAMI TRANSACTION - BURDEN OF PROOF - EVIDENCE ACT, SECTION 33 - ADMISSIBILITY OF STATEMENTS RECORDED IN EARLIER SUIT.
Fact of the Case:
Plaintiffs claimed title to the suit property by virtue of a sale deed executed by one Rajaram Vaglo. Defendants denied the claim of title set up by the plaintiffs and pleaded that defendant Sadassiva was the real owner of the property and Dangui was only a benamidar.
Finding of the Court:
1. The suit abated as against the deceased defendant Sadassiva due to the failure of the plaintiffs to bring his legal representatives on record within the limitation period. 2. The abatement of the suit could not be set aside impliedly on an application by the plaintiffs purporting to be under Order 22, Rule 4, Civil Procedure Code, even though the heirs were joined and they did not raise any objection to the continuation of the suit. 3. The suit having been abated in full, the decree passed by the learned lower Court in favor of the respondents is invalid and inoperative. 4. The burden of proof was rightly placed on the defendants to prove the benami character of the transactions. 5. Statements of Sadassiva and Dangui recorded in the earlier suit between the same parties were relevant under Section 33 of the Evidence Act and should have been admitted in evidence by the lower Court. 6. The evidence showed that the consideration for the purchase of the house had come from Sadassiva and not from Dangui, and that Dangui was only a benamidar for Sadassiva. 7. The subsequent transaction between Dangui and Rajaram Vaglo was fake, bogus, and without consideration. 8. The plaintiffs did not acquire any title over the suit property by virtue of the sale deed in favor of plaintiff No. 2 Apolonia executed by Rajaram Vaglo.
Issues: 1. Whether the suit abated as against the deceased defendant Sadassiva due to the failure of the plaintiffs to bring his legal representatives on record within the limitation period? 2. Whether the abatement of the suit could be set aside impliedly on an application by the plaintiffs purporting to be under Order 22, Rule 4, Civil Procedure Code, even though the heirs were joined and they did not raise any objection to the continuation of the suit? 3. Whether the suit having been abated in full, the decree passed by the learned lower Court in favor of the respondents is invalid and inoperative? 4. Whether the burden of proof was rightly placed on the defendants to prove the benami character of the transactions? 5. Whether statements of Sadassiva and Dangui recorded in the earlier suit between the same parties were relevant under Section 33 of the Evidence Act and should have been admitted in evidence by the lower Court? 6. Whether the evidence showed that the consideration for the purchase of the house had come from Sadassiva and not from Dangui, and that Dangui was only a benamidar for Sadassiva? 7. Whether the subsequent transaction between Dangui and Rajaram Vaglo was fake, bogus, and without consideration? 8. Whether the plaintiffs acquired any title over the suit property by virtue of the sale deed in favor of plaintiff No. 2 Apolonia executed by Rajaram Vaglo?
Ratio Decidendi: 1. Under Order 22, Rule 4, Civil Procedure Code, the suit as against the deceased defendant abates automatically whether or not an objection is taken by any party. 2. An abatement of a suit cannot be set aside unless a proper application is filed for the purpose stating the sufficient cause which prevented the plaintiff from continuing the suit. 3. In the absence of such an application and proof of such a cause, the abatement cannot be set aside. 4. The burden of proof is on the party alleging that a transaction is benami to prove the same. 5. Statements of a witness recorded in an earlier suit between the same parties are admissible in evidence under Section 33 of the Evidence Act, provided that the adverse party had the right and opportunity to cross-examine the witness.
Final Decision: The appeal is allowed and the decree of the learned lower Court is set aside. The suit is dismissed, with costs throughout.
2. The dispute refers to a property named "Xir" or "Molloi" Vinanechem Bata together with a residential house standing thereon.
3. Plaintiffs claimed title to the suit property by virtue of a sale deed dated 16-6-1960 executed by one Rajaram Vaglo. Earlier, plaintiffs had brought a suit under Art. 1043 of the Portuguese Civil P. C. r/w Section 953 of the Port. Civil Code for summary eviction of these defendants i. e. Sadashiva (Since deceased) and his wife. The suit was decreed by the trial Court but in appeal the decree was set aside by the Court of the Judicial Commissioner on the ground that the property was in possession of defendant Sadashiva for a period exceeding one year before the filing of the suit and no relief by way of summary eviction under Art.1043 of Port. Civil P. C. (which is analogous to Section 6 of the Specific Relief Act, 1963) could be granted. Plaintiffs therefore were obliged to file a suit for declaration of title and recovery of possession.
4. Plaintiffs case, shortly stated was as follows :- On 17-6-1960 plaintiff No. 2 Smt. Apolonia purchased the suit property from one Rajaram Vaglo for a consideration of Rs. 5,000/-. It was alleged that the suit property belonged originally to one Rosaria. This property was sold through Court auction in execution of a decree and one Dangui purchased it on 17-3-50. Later, the said Dangui sold the property to Rajaram for a consideration of Rs. 1,000/- vide sale deed dated 3-10-52. Rajaram Vaglo was thus the owner of the suit property and by virtue of the sale deed dated 17-6-1960 plaintiffs became the owners thereof. According to the plaintiffs, possession of defendant Sadassiva and his wife was unlawful and they were liable to be evicted.
5. Defendants denied the claim of title set up by the plaintiffs. According to them vendor Rajaram Vaglo was not the real owner of the suit property. They pleaded that defendant Sadassiva was the real owner of the property and Dangui was only a benamidar. The consideration for purchasing the property in the Court auction flowed from defendant Sadassiva and he entered into possession of the property after Rosaria was evicted therefrom sometime in 1950. The sale to Rajaram Vaglo ostensibly made by Dangui had actually been made by defendant Sadassiva who was the real owner. This was also a fake and benami transaction because the benamidar Dangui was being pestered by Rosaria and he desired to free himself with these botherations. For this reason a fake and bogus deed, without passing any consideration was executed by Dangui in the name of Rajaram Vaglo. The real ownership and possession always remained with the defendants. On these grounds defendants challenged the title of the plaintiffs and their vendor Rajaram Vaglo.
6. During the pendency of the suit defendant No. 1 Sadassiva died on 10-2-1969. Application to bring his legal representatives was filed on 23-6-1969 and defendants 1-A to 1-K were brought on record. Defendant No. 2, the wife of Sadassiva was a person of unsound mind and her husband Sadassiva had been appointed the guardian ad-litem. These facts should be mentioned here because they constitute a major ground of attack against the impugned decree.
7. The learned Judge of the lower Court held that the onus of proving the benami character of the transaction by which Dangui had purchased the property in Court auction and also by which (he) had sold the property to Rajaram Vaglo, was on the defendants. They failed to discharge this burden and on the basis of the document it was proved that Rajaram Vaglo, had full title to the suit property and after the sale in plaintiffs favour, they became the owners thereof. Accordingly the impugned decree for declaration and possession was passed.
8. The first ground on which the decree has been attacked relates to the abatement of the suit on account of plaintiffs failure to bring the legal representatives of defendant Sadassiva on record within the pe
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