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Bhramar Pradhan Vs. Govinda Mahapatra and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 221 of 1977
Judge
Reported inAIR1983Ori36
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100 and 101; Evidence Act, 1872 - Sections 101, 104 and 114; Transfer of Property Act, 1882 - Sections 41 and 54; Hindu Minority and Guardianship Act, 1956 - Sections 8
AppellantBhramar Pradhan
RespondentGovinda Mahapatra and ors.
Appellant AdvocateP.K. Misra, Adv.
Respondent AdvocateL. Rath, Adv.
DispositionAppeal dismissed
Cases ReferredGopeekrist Gosain v. Gungapersaud Gosain
Excerpt:
.....be taken to be real unless the contrary is proved. thus while the burden initially rests on the party who would fail if no evidence is led at all, after the evidence is recorded, it rests upon the party against whom judgment would be given if no further evidence were adduced by either side. 2. the appellate court, on a consideration of the evidence on the record, found that the plaintiff had failed to establish this allegation. it is too well known that benami transactions are entered into in this country without any motive or reason. 2, that he was a mere child by the time of the transaction, that he had no money of his own and that he failed to establish that p......declaration of title and for confirmation or, in the alternative, recovery of possession of the suit lands on adjudication that the sale deed executed by defendant no. 2 in favour of defendant no. 1 on 24-3-67 is not binding on the plaintiff and also for a permanent injunction restraining the defendant no. 1 from interfering with the plaintiff's possession. 2. the case pleaded on the plaint is that the plaintiff is the son of late ghana pradhan, the brother of defendant no. 2 baban pradhan, and that his father died when he was only two years old. his mother hema bewa courted a remarriage. at; the time of her remarriage, hema bewa had given some ornaments and a cash of rs. 200/-to defendant no. 2 for the upkeep of the plaintiff. defendant no. 2 purchased the suit lands by a sale deed.....
Judgment:

P.K. Mohanti, J.

1. The second appeal is by the plaintiff against a reversing Decree. The suit was for declaration of title and for confirmation or, in the alternative, recovery of possession of the suit lands on adjudication that the sale deed executed by defendant No. 2 in favour of defendant No. 1 on 24-3-67 is not binding on the plaintiff and also for a permanent injunction restraining the defendant No. 1 from interfering with the plaintiff's possession.

2. The case pleaded on the plaint is that the plaintiff is the son of late Ghana Pradhan, the brother of defendant No. 2 Baban Pradhan, and that his father died when he was only two years old. His mother Hema Bewa courted a remarriage. At; the time of her remarriage, Hema Bewa had given some ornaments and a cash of Rs. 200/-to defendant No. 2 for the upkeep of the plaintiff. Defendant No. 2 purchased the suit lands by a sale deed dated 10-6-1959 (Ext. A) in the name of the plaintiff with the help of the ornaments and cash given by Hema Bewa. Subsequently defendant No. 2 in order to make unlawful gain executed a sale deed in respect of the suit lands in favour of defendant No. 1 on 24-3-1967 falsely describing himself as the father of the plaintiff (vide Ext. B). The sale was never for the benefit of the plaintiff. The sale deed was executed without obtaining permission of the District Judge in contravention of the provisions of the Hindu Minority and Guardianship Act.

3. Defendant No. 2 did not enter appearance in the suit which proceeded ex parte against him. Defendant No. 1 who was the sole contestant in the suit contended that the plaintiff is not the son of Ghana Pradhan but he is the son of defendant No. 2 and he lives in a joint family with him. Defendant No. 2 being the father of the plaintiff had purchased the suit property with his own funds benami in the name of the plaintiff who was then a minor. Defendant No. 2 was the real owner of the suit lands and after abolition of the intermediary interest the suit lands were settled with him. He sold the suit lands to defendant No. 1 to meet the legal necessity of the family on receipt of a consideration of Rs. l,000/_ and executed the sale deed on 24-3-1967 and delivered possession of the same. Defendant No. 2 being a veteran litigant had brought a suit through the plaintiff to get the sale deed set aside and it was dismissed. He cut and carried away the paddy crops raised by defendant No. 1 on the suit land for which a criminal case is pending against him. In order to escape from the criminal liability defendant No. 2 has brought the present suit through the plaintiff.

4. The trial court found that the plaintiff is the son of late Ghana Pradhan, that his mother had given some ornaments and cash to defendant No. 2 for upkeep of the plaintiff, that defendant No. 2 with the help of the ornaments and cash purchased the suit lands in the name of the plaintiff, but subsequently in order to make unlawful gain he executed a sale deed in favour of defendant No. 1. It also found that after abolition of the intermediary interest the suit lands were settled with defendant No. 2 but it endured to the benefit of the plaintiff inasmuch as defendant No. 2 was only a trustee of the plaintiff's property. It further found that the transfer of the suit lands by defendant No. 2 is illegal as no permission of the District Judge was taken as required by the provisions of the Hindu Minority and Guardianship Act. On the above findings the plaintiff's suit was decreed.

On appeal by defendant No. 1 the learned District Judge found the plaintiff is the son of defendant No. 2 Baban Pradhan and that the plaintiff's allegation that his mother had given some ornaments and cash to defendant No. 2 for the upkeep of the plaintiff was false, that the plaintiff was only a name lender and defendant No. 2 was the real owner in respect of the suit lands and that the suit lands having been settled with defendant No. 2 under the Orissa Estates Abolition Act, he conveyed a valid title in favour of defendant No. 1 by the sale deed dated 24-3-67. Upon such findings the trial court's decree was set aside and the plaintiff's suit was dismissed.

5. It is urged in this appeal that the plaintiff was the real owner of the suit property and the settlement made in favour of defendant Number 2 must be deemed to have enured to the benefit of the plaintiff. It is further urged that even assuming that the plaintiff is the son of defendant No. 2 the alienation by him in favour of defendant No. 1 without permission of the District Judge was illegal.

6. As already stated the first appellate court came to the findings that the plaintiff is the son of defendant No. 2, that defendant No. 2 was the real owner of the suit property and that the suit lands having been settled with defendant No. 2 under the provisions of the Orissa Estates Abolition Act he validly transferred the same in favour of defendant No. 1. These are pure findings of fact and cannot be assailed in second appeal. In the sale deeds Exts. A and B the plaintiff has been described as the son of defendant No. 2. The vendor of Ext. a who was examined as the first witness on the side of the plaintiff stated in cross-examination that defendant No. 2 is the father of the plaintiff. The evidence of P. W. 2 who claimed to be the mother of the plaintiff is at variance with that of P. Ws. 3 and 4. On a careful scrutiny, the lower appellate court did not place any reliance on their evidence. I see no cogent ground to interfere with the finding of the lower appellate court that the plaintiff is not the son of Ghana Pradhan but he is actually the son of defendant No. 2.

7. The learned counsel for the appellant strenuously contended that the finding of the lower appellate court about the benami nature of the transaction under Ext. A is based on no evidence. It is well settled that the burden of proving a transaction to be a benami one is on the person who alleges the same to be benami, because the apparent state of affairs must be taken to be real unless the contrary is proved. The burden, however, does not rest in one place but shifts to the other side. Their Lordships of the Supreme Court laid down that the burden of proof is not static, and may shift during the course of the evidence. Thus while the burden initially rests on the party who would fail if no evidence is led at all, after the evidence is recorded, it rests upon the party against whom judgment would be given if no further evidence were adduced by either side. Although the onus of establishing that a transaction is 'benami' is on the person asserting it to be so, where it is not possible to obtain evidence which conclusively establishes or rebuts the allegation the case must be dealt with on reasonable probabilities and legal inferences arising from proved or admitted facts. See AIR 1977 SC 409 (Union of India v. Moksh Builders and Financiers Ltd.).

8. The evidence in this case has to be examined in the light of the above principles to find out whether the benami character of the transaction has been proved or not. The recitals of the sale deed (Ext. A) would show that the consideration for the sale was paid by defendant No. 2, The endorsement made by the Sub-Registrar on Ext. A (which corresponds to Ext. 1) shows that the amount of consideration of Rs. 20o was paid in his presence. P.W. 1 who is the vendor under Ext. A at first avoided to answer the question as to who paid the consideration. But subsequently he admitted that the recital in the sale deed about payment of consideration by defendant No. 2 is correct. It is the plaintiff's case that he was aged about six years by the time of execution of the sale deed Ext. A. Apparently he had no money of his own. He, however, alleged that a cash of Rs. 200/ and some ornaments were given to defendant No. 2 by P. W. 2 and that with the help of the cash and ornaments the suit lands were purchased in his name by defendant No. 2. The appellate court, on a consideration of the evidence on the record, found that the plaintiff had failed to establish this allegation. The source of the money was within the special knowledge of defendant No. 2. He did not enter appearance in the suit and no effort was made by either party to summon him as a witness. As already stated the amount of consideration under Ext. a was paid by defendant No. 2. There is a presumption that the person who pays the money is the real owner and not the person in whose name the property is purchased.

9. Absence of motive cannot be taken to be a circumstance against the benami character of the transaction. It is too well known that benami transactions are entered into in this country without any motive or reason. In the case of Sahdeo Karan Singh v. Usman Ali Khan AIR 1939 Pat 462, a Division Bench of the Patna High Court has held that experience has shown that frequently benami transactions are entered into in this country for no apparent reason. In the case of Gopeekrist Gosain v. Gungapersaud Gosain (1854) 6 Moo Ind. App. 53 their Lordships of the Privy Council observed that benami purchases in the name of children without any intention of advancement are frequent in India.

10. Relationship is a circumstance which is taken into consideration in determining whether the transaction is benami or not. The learned District Judge found as a fact that plaintiff is the son of defendant No. 2 though such relationship was denied by the plaintiff obviously with some ulterior motive.

11. The subsequent conduct of the defendant No. 2 tends to show that the transaction was a benami one. After abolition of the intermediary interest, he got the suit lands settled in his own name under the provisions of the Orissa Estates Abolition Act (vide Ext. E).

12. In view of the facts that the defendant No. 2 paid the consideration, that the plaintiff is the son of defendant No. 2, that he was a mere child by the time of the transaction, that he had no money of his own and that he failed to establish that P. W. 2. Hema Bewa is his mother and that she at the tune of her remarriage had given cash and ornaments to defendant No. 2 a reasonable inference can be drawn that defendant No. 2 entered into the transaction for his own benefit though the sale deed was executed in the benami name of the plaintiff. The learned District Judge was, therefore, justified in holding that defendant No. 2 was the real owner of the suit lands.

13. In view of the finding that defendant No. 2 was the real owner of the suit lands the alienation in favour of defendant No. 1 is valid. The question raised in the appeal does not arise for consideration.

14. The appeal fails and is dismissed, but in the circumstances without any order as to costs.


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