1. This is an appeal by one of the defendants in a suit for a declaration that was dismissed by the trial Court, but decreed by the lower appellate Court. There is a great deal of confusion both of law and fact in the judgment of the Second. Additional Subordinate Judge of Ballia, Mr. Sri Nath, and it is necessary therefore to state at some length the circumstances from which the suit arose.
2. Sheo Govind, one of the defendant respondents, was a member of a joint family consisting of himself and his step-brothers, Shambu Nath and Sheo Kumar, who were also joined in the suit as defendants. In execution of a money decree against Sheo Govind certain property was attached and sold at auction, and it was purchased in the name of Mt. Rameshwari Devi, sister of the present defendant-appellant, for a sum of Rs. 1,800. The purchaser got a sale certificate and formal possession, and obtained mutation of names. The validity of this auction-sale was called in question in a partition suit between Sheo Govind and his step-brothers, and Mt. Rameshwari Devi was made a party to those proceedings. The matter was referred to arbitration, and the arbitrators held that the sale in favour of Mt. Rameshwari Devi was a good sale, but that as the parties had agreed that Mt. Rameshwari Devi would return the property to Sheo Govind and his step-brothers on receipt of the purchase money, namely, Rs. 1,200, from Shambu Nath and Sheo Kumar and Rs. 600 from Sheo Govind, a covenant was embodied in the decree that she would do so if they made payment in the month of Jeth in any year. The plaintiff-respondent in the present suit obtained a money decree against Sheo Govind in 1929, and applied in execution for attachment and sale of the disputed property on the ground that it belonged to Sheo Govind. This property, as I have already explained, was recorded in the name of Mt. Rameshwari Devi; but she had died in the meanwhile and it was her brother, the present appellant, who made an objection under Order 21, Rule 58, Civil P.C., as her heir, on the ground that the property was his. This objection was allowed and the plaintiff therefore filed the present suit.
3. The suit was based on the allegations that the auction-sale of 1924 was fictitious and that it was never enforced, so that the 1/3rd share of Sheo Govind was liable to attachment and sale in execution of the plaintiff's decree. In the alternative, it was pleaded that if the sale were held to be valid, there was nevertheless a charge in favour of Sheo Govind in respect of 1/3rd of the property, which had been created by the decree in the partition suit, and as a consequence it was prayed that that share should be attached and sold in execution of the decree. Apparently the plaintiff's meaning was that Sheo Govind's right of reconveyance could be attached and sold, and that a declaration to this effect ought to be decreed.
4. The lower appellate Court has come to a finding that the auction-sale of 1924 was benami and that Sheo Govind was the real purchaser, the present appellant's sister being only a benamidar. In the last paragraph however the lower appellate Court has discussed the partition proceeding and remarked that the sale was 'fictitious and benami', but that Sheo Govind had a right of reconveyance under the partition decree subject to payment of Rs. 600, and that this right of reconveyance was attachable and saleable. It appears therefore that the learned Additional Subordinate Judge mixed up three things. If the sale was fictitious, as he found it to be, there was no sale at all, and it could not have been a benami transaction, because such a transaction, does mean a transfer of property, though not to the nominal transferee. If the sale was benami as he also found it to be, the purchaser was the person who provided the sale consideration, and this according to the lower appellate Court, was Sheo Govind. But this is evidently a mistake because it is quite clear both from the pleadings and the evidence that if the transaction was benami, the real purchaser was the joint family of which Sheo Govind was the manager. If on the other hand, the sale was neither fictitious nor benami, but a genuine transaction, and a right of reconveyance to Sheo Govind and his two step-brothers was created by the partition decree of 1925, then that right of conveyance so far as Sheo Govind was concerned might be attached and sold in execution of the plaintiff's decree. But this finding is altogether inconsistent with the finding that the sale was a benami one, and that the purchasers were really Sheo Govind and his step-brothers, because in that case of course there could be no question of a reconveyance to them.
5. The lower appellate Court has however not come to a definite finding that the auction-sale of 1924 was a genuine one. The remarks about the reconveyance were made in the course of a discussion about the partition decree, and if the definite finding that the sale was benami is to be upheld, all this part of the judgment is obiter besides being unintelligible. The statement in the judgment that the sale was fictitious, again, appears to be due to a misunderstanding of the meaning of the word 'fictitious.' The decision that the sale was benami appears to be on the face of it one of fact; but it has been argued by Mr. Kamlakant Verma, to whom I have been much indebted for his clear exposition of the difficulties in the case, that it is a finding that is not supported by any evidence. There was a witness Kanhaiya Lal who came forward to prove that the property was purchased by Sheo Govind out of money received from the Maharaja of Dumraon. This witness however has been disbelieved by the trial Court, and it does not appear that the Additional Subordinate Judge believed him either, because he remarks:
It is beyond the means of appellant (i.e. the plaintiff) to give definite and direct evidence as to from where respondent 2 (Sheo Govind) got the money. The letter, auction sale and dakhal dehani suggest that the real purchaser is respondent 2 (Sheo Govind).
6. He then goes on to point out that the husband of Rameshwari Devi had not been able to prove that his wife had money with which the sale consideration could have been paid, and this has led to the suggestion that the Court had misdirected itself in believing that the burden of proof was on the defendants, i.e., those upholding Mt. Rameshwari Devi's title. It certainly appears that the Court did not rely on Kanhaiya Lal's evidence, which was definite and direct, though it may not have been true. What the Count has relied on are the letter, the auction-sale and the dakhal diehani. If these provide evidence on which the Court could base a finding of fact, I am clearly of opinion that the finding cannot be disturbed in second appeal. The letter is one written by Sheo Govind in 1923 to Kanhaiya Lal showing that his property had been put up to sale and that he was anxious to purchase the property in the name of another person so that the creditors might not proceed against it. The Additional Subordinate Judge has held that this clearly shows the intention of Sheo Govind to bring about a benami transaction, and draws from it the inference that if he did subsequently make a transfer of the property, the transfer was a benami one. The other piece of evidence is that after the auction-sale formal possession of the property was given to one Ram Govind Lal who had some connexion with Sheo Govind. This last piece of evidence is not very definite, but the letter does appear to show clearly that a benami transaction was intended by Sheo Govind. It has been argued by Mr. Verma that although this may be so, it does not follow that such a transfer was actually made. But I have not been shown any authority for holding that evidence to prove that a transaction was benami must necessarily be direct evidence. It appears to me that the evidence of intention was relevant, and it follows from this that the finding in favour of the benami transaction was based on some evidence and is binding on me.
7. I have already said that the Judge remarked that respondent 2, i.e., Sheo Govind, was the real purchaser. He may have actually deposited the money, but the case for the plaintiff was and the partition proceedings bear this out- that the money was joint family money and that Sheo Govmd's personal share was only 1/3rd of it. It follows from this that Sheo Govind was the real purchaser at the auction-sale to the extent of 1/3rd, and that the plaintiff-respondent is entitled to a decree for a declaration that Sheo Govind's 1/3rd share in the property named in the plaint can be attached and sold in execution of his decree. It is by no means clear that this is the conclusion at which the lower appellate Court had arrived and it would be difficult to say that the appeal was not to some extent justified. But the respondents are not responsible for this and cannot be made to suffer for it, and I therefore direct that the appeal be dismissed with costs.
8. (Permission for Letters Patent appeal was refused).