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HIGH COURT OF ORISSA
JAGANNADHADAS,NARASIMHAM, JJ.
Chanchala Devi
Versus
Puri Bank Ltd
A. f. O. d. No. 18 of 1945
Decided On : 25-04-1950
BENAMI TRANSACTION - PURCHASE IN NAME OF WIFE - BURDEN OF PROOF - INTENTION OF ADVANCEMENT - EVIDENCE REQUIRED - PRESUMPTION OF NO ADVANCEMENT - REBUTTAL.
Fact of the Case:
Plaintiffs filed a suit under O. 21, R. 63, Civil P. C. to establish their right to 62½ acres of land at Dolamandap Sahi in Puri with pucca and kutcha structures standing thereon. The suit property was mortgaged by defendants 3 to 6 to defendant 1, the Puri Bank, in 1934. The Bank obtained a decree on the mortgage and brought the property to sale in Execution case No. 1379 of 1941. The plaintiffs intervened with a claim petition on the ground that the suit property belonged to their deceased mother and not to their father defendant 2, that they are entitled to the same as the Stridhan heirs of their mother, and that their father and brothers mortgaged the suit property fraudulently without their knowledge. The claim was rejected by the executing Court, hence this regular suit by the plaintiffs under O. 21 R. 63 to establish their right to the suit-property.
Finding of the Court:
The court found that the plaintiffs failed to prove that the suit property was purchased with the stridhan money of their mother and that the sale-deeds were taken benami in her name. The court held that the purchases were made by the plaintiffs' father, defendant 2, from out of his own funds and that the plaintiffs' mother had no independent Stridhan funds. The court also held that there was no evidence of an intention on the part of defendant 2 to purchase the property under the various relevant sale-deeds for the benefit of his wife.
Issues: 1. Whether the suit property was purchased with the stridhan money of the plaintiffs' mother or benami by defendant 2 in the name of his wife? 2. Whether there was an intention on the part of defendant 2 to purchase the property under the various relevant sale-deeds for the benefit of his wife?
Ratio Decidendi: 1. The burden of proving that a transaction is benami is on the plaintiff, the person asserting the benami character and it must be strictly made out. The decision of the Court cannot rest on mere suspicion, but must rest on legal grounds and legal testimony. In the absence of evidence, the apparent title must prevail. 2. There is no presumption in law that a purchase in the name of a female is to be regarded as a Benami transaction by which the beneficial interest in the property is in the husband although the ostensible title is in the wife. 3. When considering the question as to the source of purchase money, the matter has to be looked at not necessarily by requiring express and positive proof of the supply of specific funds of the husband or of the wife for the disputed purchase, but proof of the relevant facts with reference to the broad probabilities and the circumstances in the light of the evidence is enough. 4. Where in India a purchase has been made by a person in the name of his wife or child or other close relation, the presumption is that it was benami and that there is no presumption that the purchase was intended by way of advancement. 5. The presumption of no advancement is no doubt a rebuttable one. But there must be proof of some circumstances which would indicate the intention to benefit though no direct proof of the same is necessary.
Final Decision: The appeal was dismissed with costs.
Judgement
Jagannadhadas, J. :- Plaintiffs are the appellants in this appeal. The suit is one under O. 21, R. 63, Civil P. C. and relates to 62½ acres of land at Dolamandap Sahi in the town of Puri with pucca and kutcha structures standing thereon. The facts leading to the suit are as follows :
2. Plaintiffs are the daughters of defendant 2. Defendants 3 to 6 mortgaged the suit property along with other properties to defendant 1 the Puri Bank, by a deed of mortgage dated 10th March 1934, Ex. 6, for a sum of Rs. 25,000. The Bank obtained a decree on the mortgage and brought this property to sale in Execution case No. 1379 of 1941. The plaintiffs intervened with a claim petition on the ground that the suit property belonged to their deceased mother and not to their father defendant 2, that they are entitled to the same as the Stridhan heirs of their mother, and that their father and brothers mortgaged the suit property fraudulently without their knowledge. (It may be mentioned that under the Patna amendment to O. 21 R. 58. Civil P C., a claim proceeding can be instituted also in the execution of a mortgage decree.) The basis for this claim by the plaintiffs is the fact that the suit property has been acquired in bits under six successive sale-deeds ranging from 1902 to 1923 all of which stand in the name of their mother who died on 15 February 1933. The claim was rejected by the executing Court and hence this regular suit by the plaintiffs under O. 21 R. 63 to establish their right to the suit-property
3. The case of the plaintiffs is that the various purchases were made with the stridhan money of their mother while it is the case of defendant 1. the Puri Bank that the purchases were made with the money of defendant 2 and that the sale-deeds were taken benami in the name of his wife The learned Subordinate Judge in the trial Court has after consideration of the evidence and circumstances, accepted the contention of defendant 1 and dismissed the plaintiffs suit and hence this appeal.
4. The plaintiffs father, defendant 2 herein one Banamali kar, was a native of the village of Chandpur in the District of Cuttack. He was not a person having any substantial ancestral property and appears to have shifted to Puri more than fifty years ago in order to eke out his livelihood. He took up service with a Bengali Lady named Giribala Dasi who was running an excise shop a cloth shop and a grocery shop in Puri and other excise shops in the mofussil. He seems to have won his employers confidence fairly early and became her trusted assistant and in course of time, the management of her excise business and grocery shop appears to have been left in his hands. As early as in 1911, his employer executed a power-of-attorney in his favour including others, vide Ex, 6. He appears also to have been admitted as a partner with her into her business at one time. When for one reason or other the license of the excise shop could not be obtained by his employer, Giribala Dasi the shop appears to have been run for a year in his same for her. In so far as can be gathered from the material exhibited in this suit, he had made purchases of various items of property between 1910 to 1923 under as many as 14 sale-deeds and the property so acquired or the price paid therefor was not inconsiderable.
5. The suit properties have been purchased under six sale deeds of which one dated 6th November 1906 relating to a portion of plot No. 431 has not been exhibited. The other purchases are as follows:
Ext. No.
Ext. 1
Ext. 1-A
Ext. 1-B
Ext. 1-C
Date of Execution.
... 16-9-1902 ...
... 18-12-1919 ...
... 22-2-1920 ...
... 6-6-1922 ...
Plot No.
430
432
436
Portion of
Extent (In acres).
.10
.20
.20
.9
Consideration.
390
600
350
1000
(The rest of plot No. 431 appears to have been purchased under the unexhibited sale-deed dated 6-11-1906) 431Part of plot No,
Ext. 1-D ... 13-9-1923 433 2 ½ 150
Thus under these six sale-deeds the suit area of 66½ decimals comprised in plot Nos. 430. 431, 432 and a portio
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