1. These are two appeals against one and the same judgment of the learned Civil Judge of Cawnpore, dated 30th April 1940. Appeal No. 190 of 1940 has been filed by the plaintiff, while the other appeal No. 229 of 1940 has been filed by the defendant. It appears that the plaintiff Mt. Chandrani Kunwar brought a suit for a declaration that she was the owner in possession of the zemindari property, comprising 12 annas in mohal Bidhauna, tahsil and pargana Ghatanpur, District Cawnpore, and that the sale deed dated 3rd February 1917 executed by Syed Mohammad Abdulla and others, in favour of her father Misri Lal, was fictitious and be-nami and was executed for her benefit. The allegations of the plaint was that she was married to Rameshwar Prasad alias Munna Lal as his third wife, while she was very young and only 14 years of age, and that her husband, in order to provide for herself and her children purchased the said property, with his money but as a litigation was going on in the family of her husband, her husband got the sale deed executed in the name of her father Misri Lal. The defendant Bans Narain who is the own brother of the plaintiff denied the allegations of the plaint, and asserted that the property in dispute was purchased by his father, with his own money and that he and his father had all along been in possession, e Certain legal pleas namely that the suit was barred by limitation, that the plaintiff was estopped from bringing the suit and that Section 42, Specific Relief Act, barred the suit were also raised. The learned Civil Judge found all the legal issues in favour of the plaintiff and on the question of fact, he came to the conclusion that the plaintiff was owner of half the property in dispute and gave a declaratory decree to the plaintiff in respect of one half holding that the sale deed in respect of only one half was fictitious and benami. Both the plaintiff and defendant being dissatisfied with this decree, have come in appeal. It is urged ; on behalf of the plaintiff that the entire suit ought to have been decreed while the contention of the defendant is that the entire suit was liable to be dismissed and ought to have been dismissed.
2. On hearing the learned Counsel for the parties it seems very clear that the findings of the learned Civil Judge are to a certain extent inconsistent and contradictory to each other. At p. 64 of the printed book the learned Civil Judge has remarked:
I am decidedly of opinion that the sale deed was obtained by the plaintiff's husband benami in the name of her father Misri Lal.
and then again at p. 68 it is stated : 'The evidence as it is therefore proves that Mannu Lal paid the consideration and not Misri Lal.' But in the latter part of the judgment the learned Civil Judge has modified his views and has come to the conclusion that the plaintiff was the owner of only half of the property in dispute.
3. The first question, that strikes itself to me, is whether in a suit for a declaration, that a certain transaction was benami, it was open to a party to contend or for a Court to hold that a part of it was genuine and the other part was benami. It is contended that it is always open to a Court to find out the truth between the two extreme cases as propounded by the parties. As an example it is cited that a plaintiff may sue to recover a sum of Rs. 5000 while the defendant might plead that nothing was due and it was open to the Court to hold that the sum due was something less than Rs. 5000. With all respect, I am of opinion that this does not hold good in a case where it has to be decided whether a transaction is benami or not. The only case on the point which I could discover is that of Appa Dhond Savant v. Babaji Krishnaji ('22) 9 A.I.R. 1922 Bom. 107. In that case it was contended by the defendants that part of the transaction was benami. The following re-marks occur in the judgment delivered by McCleod J. which support my view:
Benami transactions, it may safely be assumed, are generally effected in order to conceal some fraud, or in order to support some object of a discreditable nature. But though the Courts have in the past recognised that the ostensible owner in a benami transaction can be ordered to restore the property to its original owner, I for my part would certainly not be willing to extend that doctrine and to hold that a transaction can be partly genuine and partly unreal, unless there were very strong reasons for obliging the Court to come to such a conclusion.
It is to be noted that in the case in appeal the point was not raised by the parties but was made out by the learned Judge himself.
4. Coming to the merits of the ease I must note that the learned Civil Judge has not taken into account the question of burden of proof which was very important in this case. There can be no doubt that in a case of this nature, namely to have it declared that a certain transaction standing in the name of a certain person was benami the initial onus lies heavily on the plaintiff in the first place to show by clear and convincing proof that it was with his or her money that the property was purchased, though not in his or her name; and secondly that he or she had been in initial enjoyment of the same since the date of the purchase. The learned Civil Judge has mainly directed his attention to the possibilities and conjectures. He has come to the conclusion that at the time of the marriage of the plaintiff Mt. Chandrani with Rameshwar Prasad alias Mannu Lal, she was 15 or 16 years of age while the latter was 40 years old. From this he has concluded:
Munna Lal being thus of advanced ago was naturally anxious to provide for his wife of tender age, particularly because there was little hope of ancestral property (which was mortgaged under old family debts) being left.
5. I do not think it is very common for old people marrying young wives to make provision for them. It is certainly their moral duty, 'but so far as my experience goes it is rarely discharged. It may also be noted here that it was not an uncommon occurrence in the family as according to the evidence of Mt. Chandrani plaintiff, at page 35 of the paper book, her sister Mt. Bhagwan Dei was also married to Deo Narain as his third wife.
6. Then the learned Civil Judge has proceeded to lay down that as at the time of purchase a suit for partition was going on between the plaintiff's husband and his brother, it was highly probable that in order to prevent the brothers from claiming the property it was purchased benami in the name of the plaintiff's father Misri Lal. All that we know about this litigation is from a copy of the plaint, in suit No. 260 of 1916, printed at page 90 of the paper book, that a suit for partition was brought on 28th September 1916, and that a written statement was filed, which is printed at page 97 alleging that there was already a partition. This written statement is dated 5th January 1917. But what happened to the suit nobody has been able to disclose and it is not known whether it was pending on 3rd February 1917, when the sale deed was executed. One thing is certain that the property was never partitioned. In these circumstances it cannot be said, with any amount of certainty, d that on the date of the sale deed there was any existing dispute or litigation between Mannu Lal and his brothers.
7. All these circumstances are however of very little value and the main point to be considered is from what source the consideration of the sale deed was paid.
8. The learned Civil Judge has considered the evidence on this point and although he has not given much weight to the oral evidence produced on this point on behalf of the plaintiff, he was much impressed by the consideration that according to him Misri Lal the father of the plaintiff was not in a position to purchase the property while Mannu Lal was financially better off.
9. The plaintiff produced three witnesses besides herself, namely Mr. Mohammad Jama, Aziz Ahmad and Earn Dayal. Mohammad Jama, although he professes to be a former Assistant Judicial Secretary to the Nizam of Hyderabad has cut a very sorry figure. He at first stated:
I do not remember if Mannu Lal was present when the receipt was given, but he was present when Rs. 1000 were paid. The receipt was probably written at the very time.
10. When asked by the Court to explain he stated:
The fact is that I do not remember about the receipt. I said that the receipt must have been given at the time of the payment of the earnest money. But I was not sure.
11. It seems to me that Mohammad Jama was depending more on his imagination than on his memory and was not a reliable witness but the learned Civil Judge has remarked:
The evidence of Mohammad Jama about it is of no value as Moharnmad Jama seems to have been more or less inattentive to details and so he does not remember this fact like so many other facts about which he stated that he did not remember.
Aziz Ahmad the other witness for the plaintiff has stated in his examination in chief:
At the time when money was being paid at the time of registration Rs. 200 was deficient and for that Mannu Lal executed a pronote for Rs. 200. The earnest money for the sale deed was paid by Mannu Lal. Rs. 1000 was paid as earnest money.
But in his cross-examination be had to admit that the pronote for RS. 200 was not executed in his presence. The lower Court has remarked about this witness that he came at the end when he identified the ladies before the Sub-Registrar and this is why he said that the pronote was not executed before him. I do not think this witness could prove that the consideration was paid by the plaintiff's husband. The third witness Ram Dayal has stated that about Rs. 150O was paid by Risaldar Sahib and the rest was given by Mannu Lal, i.e., about five or six thousand. But he is directly contradicted by the Sub-Registrar's endorsement on the back of the document which is printed at page 106. It mentions:
They having received Rs. 4785-13-6 from Misri Lal and after counting the same in my presence at the time of registration stated that the whole of the remaining sum as detailed in this document had been realised and allowed credit for.
Mt. Chandrani herself stated that her husband took money for earnest money in her presence and that 24 or 25 days after the sale deed three and a quarter thousand were again taken by him for sale deed. There were some cash coins and some notes. About three 'thelis' of one thousand were taken and one was a little empty. I do not think that her evidence counts for much. This is all the direct evidence on the basis of which the learned Civil Judge has held that the money was paid by Mannu Lal.
12. It appears that on 1st February 1917, Mannu Lal the husband of the plaintiff executed a sale deed of a house in Kakadeo for a consideration of Rs. 20 in favour of the defendants. It was transferred with this object that it may be possible to effect registration of sale deed in Cawnpore. This does really show that Mannu Lal was assisting in execution of the sale deed, but it will be too much to infer from this as the learned lower Court has done, that it gives also some indication of the fact that Mannu Lal was the real purchaser. Another fact which has greatly weighed with him is that on 22nd November 1928, Bans Narain executed a usufructuary mortgage in favour of the plaintiff for a sum of Rs. 200 only mortgaging half the property. It has been held that the mortgage deed was fictitious and that it was only executed in order to establish a title of the defendant in the property. Evidence has been adduced on behalf of the defendant to show that he took a loan of Rs. 200 from the plaintiff and for the payment of which he put her in possession as a usufructuary mortgagee for a period of three years. It has been contended that the amount borrowed was too insignificant and the property mortgaged was much too substantial to secure that amount. Having regard to the fact that it was mortgaged only for three years and in that period the mortgage was to be repaid from the usufruct I do not think that the point is of any importance. It is no doubt uncommon to have a transaction like that between a brother and sister but I do not think it can be properly inferred from this transaction that the defendant had no title in the property and he executed a mortgage in order to create one. The learned Civil Judge has remarked at page 79:
There could therefore be no other reason for executing the mortgage deed for half share unless the share of the Musammat in the property was half and it was intended to satisfy her that mutation has been effected over her half share.
13. It seems to me that the learned Civil Judge has overlooked the real reason for mortgaging half the share. After the death of Misri Lal in the year 1918 half the property was entered in the name of Mt. Brij Rani his widow and the other half in the name of the defendant Bans Narain and so he could not possibly mortgage more than that half. It would be wrong to say that he mortgaged only half the share which belonged to the plaintiff in order to deceive her that her name was mutated against her share. Subsequently in the year 1934 the defendant Bans Narain made an application saying that the entire money due on the mortgage was paid off and the plaintiff had withdrawn her possession and praying that his name might be restored and that of the plaintiff expunged, but as appears from the report of the Naib Tahsildar at p. 131 this application was rejected as the mortgage deed or the receipt of the payment was not filed. This event has been taken to prove that the mortgage was a bogus transaction and was a fraud on the lady and was done as a device to satisfy her.
14. Reliance has also been placed on a writing in a bahi khata which according to the plaintiff shows that the defendant acknowledged his liability to pay profits of the share to the plaintiff. The entry is admitted to have been made in pencil by the defendant in a bahi of the plaintiff's husband. It is, however, explained by him that when he had gone to the house of Mt. Chandrani in connexion with the marriage of her daughter there was an accounting between her sister Mt. Bans Dei and the widow of Babu Ram and he wrote out the accounts at their instance. The learned Civil Judge has not accepted this explanation but the fact remains that it is an unsigned statement and is not of much importance. The document is printed at pp. 162 and 165 of the paper hook in which the names of cultivators together with the amount of rent realised from them in the years 1983, 1984 and 1985 Section are given. At pp. 162, 164 and 165 the heading is 'accounts relating to cultivation.' From this it appears to me that the accounts could not relate to the profits of the zamindari and probably the story given by the defendant was correct. The reports made to the police by the defendant on 22nd April 1938 and 27th April 1938 have also been used against him. In these reports he reported that on the occasion of the birth of a son to him the plaintiff came to his place and was demanding half of his property to be given to her. This is at the best a statement of the plaintiff and can be of no avail to her. The mere fact that it was repeated by the defendant would not make it his admission. The learned Civil Judge has inferred that the plaintiff could not have made the demand unless she had interest in the property. I think this is going too far. If her case is false she may have made a false demand even then.
15. Lastly, a mukhtarnama executed by Mt. Chandrani plaintiff dated 29th October 1921, in favour of Bans Narain is also relied upon in order to show that she had property in village Bhadauna and, therefore, appointed the defendant as her mukhtariam. But in para. 5 of the plaint it is admitted by the plaintiff that on the death of her husband the defendant got a mukhtarnama executed in his favour on 20th October 1921, for contesting the suit filed by the Chaudhris and for the management of kasht and zamindari. The mukhtarnama was mainly for the contest of a suit and as the plaint in Suit No. 266 of 1916 printed at page 90 shows that Mannu Lal had property in other mauzas named Ghatampur and Ajori it is probable that it related to those properties. I feel satisfied that all this evidence and these circumstances are not sufficient for holding that the consideration money of the sale deed or any part of it was paid by Mannu Lal. I may also remark that the financial position of Mannu Lal was far from satisfactory as according to the details of his debts given at the foot of the written statement filed by him, in Suit No. 266 of 1916, p. 97 of the printed book, he owed more than Rs. 15,000 on the basis of three mortgage deeds executed by himself and others on which a decree was subsequently passed and the entire property was sold. The learned Civil Judge has glossed over this with the following observation:
It has been argued by the defendant that since it is admitted that the ancestral property was sold away in ancestral debts it must be presumed that Munna Lal was poor. This inference is not correct because cases have been known where people have been doing good business and earning sufficiently yet ancestral property is allowed to go away owing to private disputes because none pays the ancestral debts.
16. I do not think that this is a valid comment. On the other hand the evidence is convincing that at least a large amount of the sale consideration was paid by Misri Lal by borrowing and otherwise. It is no doubt true that it was admitted by Bans Narain defendant that his father Misri Lal kept accounts and left bahi khatas, but no inference can be made against the defendant by their non-production unless they were called by the plaintiff. A witness Bideshwar was produced on behalf of the plaintiff to show that Misri Lal was so poor that in the year 1967 corresponding to 1910 A.D. he had to borrow a sum of Rs. 100 for the marriage of his daughter which could never be repaid. This witness proves the bahi khata as being in the handwriting of his grand-father. I do not think any great reliance can be placed on an entry of that character. I cannot believe that the grand-father of the witness could have allowed this sum to stand over for a period of 29 years and could have allowed it to become time barred. A notice has been filed on behalf of the defendant to show that his father was assessed to income-tax. The learned Judge thinks that there was nothing to show that he was ever assessed to income-tax or ever paid it. The notice is printed at page 85 of the paper-book and runs thus:
You are hereby informed that tax, as per detail given below has been assessed on you, under part 4 of Act 2 of 1886.
To my mind it clearly shows that Misri Lal was assessed to income-tax in the year 1892. The details of consideration of the sale deed dated 3rd February 1917, which is alleged to be benami printed at p. 101 are as follows:
Rs. As. Ps.Received as earnest money on 6thJanuary 1917 ... 1000 0 0Left with the vendees for payment ofmortgage deed dated 9th Novem-ber 1911 in favour of Gaya Din ... 1767 7 3Left with the vendees for paymentof the amount of principal withinterest due under the pronote infavour of Gaya Din ... 1048 0 0Allowed credit for the vendees onaccount of the amount due...which we...realised in excessof six annas share ... 48 11Received before the execution of thisdocument ... 200 0 0Received in cash before the sub-registrar ... 4785 13 6
17. It has been urged on behalf of the defendant Bans Narain that on 20th January 1917 he executed a mortgage deed of his property in village Paseman for Rs. 1000. About this the learned Civil Judge remarked:
Technically speaking therefore it cannot be said that it is proved that those Rs. 980 were paid in the consideration of Bhadeona, but the close proximity of the date of borrowing with the date of the sale deed of Bhadeona along with the fact that it is not known that any other property was purchased about the time, lead to the inference that in all probability this money was borrowed to supply a portion of the consideration of the sale deed of Bhadeona.
18. I fully agree with the learned Civil Judge that a sum of Rs. 980 out of this was paid towards the consideration of the sale deed. Over and above this it appears from the mortgage deed dated 9th November 1911 printed at p. 86 that the amount left over for payment on that account was paid by Bans Narain Dikshit and Bans Dei. As a matter of fact they paid Rs. 2302 instead of Rs. 1767-7-3 as shown in the sale deed. Then with regard to the money left due on the pronote in favour of Gaya Din dated 2nd July 1914 printed at p. 89 there is an endorsement in the handwriting of Gaya Din that Misri Lal Dikshit paid him Rs. 100 in cash and executed a registered bond for Rs. 1000 on 30th June 1917. This bond of 30th June 1917 is on the record at p. 109 and it shows that its amount was also paid by Bans Narain defendant on 24th December 1919. Thus there is positive documentary evidence that the defendant paid Rs. 980 towards the consideration by mortgage of his zamindari property in village Paseman and subsequently paid Rs. 2302 and Rs. 1100 to the creditors of the vendors, making a total of Rs. 4382.
19. As for the payment of the rest of the consideration I think the evidence of Mt. Bans Dei who was herself a purchaser of one-fourth of the property and who is a sister of the plaintiff and the defendant is of great value. She has clearly stated that out of the earnest money of Rs. 1000, Rs. 250 was paid by her and the balance was paid by Misri Lal and Bans Narain. She has further stated that when the deed was executed she paid Rs. 1200 and the balance was paid by her father Misri Lal. I see no reason why her evidence should not be believed. It appears clear to me that the consideration for 12 annas of the share in Bhadeona was paid by Misri Lal and it was not a benami transaction as alleged by the plaintiff. The learned Civil Judge, however, for no apparent reason came to the conclusion that half the property was purchased benami by the plaintiff's husband in the name of Misri Lal. The learned Civil Judge has not given a finding that half the money was paid by the plaintiff's husband but has only made a case that as Munna Lal appears to have got some interest his share must be half. I do not think that this finding can be upheld.
20. There is also no evidence to show that the plaintiff has been in possession of the property or in receipt of its profits from the date of its purchase. Mt. Chandrani has stated in her evidence that the defendant used to give her Rs. 10 or Rs. 20 for expenses and the rest was being deposited for marriage of her girls. From this it would be clear, that she was not getting any profits but the defendant was only helping her off and on. She has then admitted that after the death of her mother which took place in 1928 or 1929 the defendant stopped giving any profits. The property was entered in the papers in the name of Misri Lal and after his death the plaintiff should have taken steps to have it entered in her name if she really owned the property. It was on the other hand, entered half in the name of the widow of Misri Lal and the other half in the name of defendant. The learned Civil Judge has held that the plaintiff has all along been in possession but he seems to have been carried away by the fact that her name appeared as against some of the plots. This possession, it appears to me, was given to her by virtue of the mortgage deed dated 2nd November 1928 executed in her favour by the defendant. The sale deed in dispute dated 3rd February 1917 has also been produced from the possession of the defendant. It is alleged that after the death of the plaintiff's husband the defendant took possession of all the papers; but this does not appear to be a very satisfactory explanation to me. The plaintiff herself filed certain bahi khatas of the time of her husband and there seems to be no reason why she should have allowed the defendant to take away the sale deed from her possession. In this way, even the circumstantial evidence is against the plaintiff and the plaintiff was not entitled to succeed.
21. Before leaving the case I must also note that this is not a simple case for a declaration that the property in dispute belongs to the plaintiff and was purchased benami in the name of the defendant. It really further seeks a declaration that the property was purchased by her husband for her benefit. In India however the doctrine of advancement is not applicable and even if it is proved that the property was purchased by the husband of the plaintiff she will have further to prove that it was purchased for her benefit. There is no satisfactory evidence on this point even. The result is that Appeal No. 229 of 1940 filed by the defendant will be allowed with costs while Appeal No. 190 of 1940 filed by the plaintiff will be dismissed with costs. The plaintiff's suit shall stand dismissed with costs in all the Courts.
22. It seems to me that the question which we have ID decide is one purely of fact. The law recognizes benami transactions, that is, it will enforce the rights of the real owner of any property against the ostensible owner whether the property is a whole or a share. The real owner has to prove the facts on which he relies, but if the Court believes that those facts exist, it must act in accordance with them. If the reasons are sufficiently strong for such a belief I must say with the greatest respect that I can see no meaning in saying that they must be very strong. In the present case, if I believed that Munna Lal had supplied half the consideration on the understanding that he was to be the owner of half the property I should feel bound to uphold the decree of the Court below, but I am satisfied that my learned brother has come to the right conclusion upon the evidence.
23. The facts that Munna Lal was much older than his wife and that he was threatened with a partition suit would not prove that he was the real purchaser of this property. They would merely furnish an explanation for a benami purchase otherwise proved and rebut an argument that it was impossible. Muhammad Jame took little interest in the transaction at the time. It appears that he did not care who the purchasers were as long as the price was paid. Aziz Ahmad admits that he had forgotten all about the matter till the plaintiff's agent discussed it with him. He is doubtless quite honest but it is difficult to decide how much he really remembers and how much after 22 years these discussions have induced him to believe. Earn Dayal attested the deed but there is no reason why he should have been present when execution was admitted at the house of the female vendors where the cash consideration was paid. From the certificate of registration it appears that the money was counted out by Misri Lal. The witnesses' statement that the money was paid by Munnu Lal does not seem to be true. The other statement that Munnu Lal had the money with him the day before when the document was first presented for registration is not convincing because the parties would in all probability have arranged that it would be paid at the ladies' home. I must say that I have no confidence in the veracity of this witness. Maheshwari Lal and Munnu Lal Bajpai except in so far as their evidence is hearsay, prove only that Bans Narain agreed to transfer the property to his sister. They do not say in so many words that he admitted that she had a legal title to it. Mt. Chandrani's own evidence that her husband took some money away in bags on the allegation that he was going to use it to buy a share in the village in suit could not in itself prove that he did use it in that way. The learned Judge of the Court below has himself not believed that witnesses such as Earn Dayal were speaking the whole truth.
24. The oral evidence of Muhammad Jame and Aziz Ahmad may justify the belief that Munnu Lal was taking an interest in the transaction and that appears also from the fact that he ostensibly transferred a house in Cawnpore so that it might be transferred to Misri Lal for purposes of registration but it does not necessarily follow that he was the real purchaser of half the property. It is alleged that part of the consideration was a promissory note for Rs. 200 executed by him. The evidence that he did execute it is not strong, but even if he did, this does not prove that he was the real purchaser. He may at the last moment have agreed to accommodate his father-in-law by, as it were, standing surety for the payment of the small balance of consideration just as he accommodated him in the matter i of the house which, if it existed, was clearly worth very little.
25. The mortgage by Bans Narain in his sister's favour is certainly a somewhat suspicious transaction in view of the fact that he was her attorney and manager but it does not constitute any direct evidence upon the issue which we have to decide. No real inference can be drawn from a rough and informal note of accounts written by Bans Narain which does not show clearly to what it relates. A suspicion that Munnu Lal may have been the purchaser of some part of the property may be aroused from the fact that he was interested in the transaction but we do not know the real truth. It may possibly have been understood that Misri Lal would leave part of the property to Mt. Chandrani when he died. If that was so the fact would account for her making a claim and for Bans Narain's willingness, if it ever existed, to transfer some of the property to her, but these are matters merely of conjecture. There is no satisfactory evidence that Munnu Lal was the real purchaser and, as my learned brother has pointed, Mt. Chandrani in order to succeed would further have to prove that the property was bought for her. I concur in the order proposed by my learned brother.