C.M. Lodha, J.
1. This is a second appeal by the plaintiff Chiranjilal from the appellate judgment and decree of the District Judge, Ajmer, dated 10th October, 1966 by which the learned Judge confirmed the judgment and decree by the trial court namely, Civil Judge, Ajmer, dismissing the plaintiff's suit for partition of the house situated in the town of Ajmer and fully described in para No. 1 of the plaint.
2. The following pedigree table may be helpful in understanding the facts of the case :--
| | |
Ram Dev Jawaharlal Smt. Narbada married to
(Died in February alias (defendant No. 1)
1951) Johari Lal Norat Mal
(Adopted son) _____|___________
Chiranjilal Nathu Lal
(Plaintiff) (Defendant No. 2).
3. The house in question was acquired by Mohanlal and was inherited by Poonam-chand after Mohanlal's death. Poonamchand had no son. After the death of Poonamchand a dispute arose between Chiranjilal and Nathulal on the one hand and one Jawahar Lal alias Johari I.,al on the other as to the ownership of the house in question. Joharilal alleged himself to be the adopted son of Poonamchand and consequently Noratmal, as guardian of his minor sons namely, ChiranjI-lal and Nathulal, filed a suit against Joharilal for declaration that there was no valid adoption of Joharilal by Poonamchand's widow Mst. Chandra and that the plaintiffs were entitled to get possession of the properties belonging to Poonamchand including the suit property. This was registered as suit No. 494 of 1951. The plaintiff's case is that while the suit was pending, there was a compromise between the parties out of court and it was settled that Joharilal may be recognised as the adopted son of Poonamchand and the rights of minors Chiranjilal and Nathulal in Poonamchand's property may be surrendered in lieu of payment of Rs. 3,500/- by Joharilal. In pursuance of this settlement, which was, however, oral, Joharilal executed a sale deed of the house in question in favour of Noratmal for Rs. 4,000/-, out of which Rs. 500/- were paid by Noratmal in cash and Rs. 3,500/- which were agreed to be paid to the minors in lieu of relinquishment of their rights in the property were adjusted towards the sale price. A copy of this sale deed has been placed on record and marked- Exhibit 6. Since no written compromise was filed in the court, the suit proceeded and resulted in a decree in the plaintiffs favour on January 22, 1957. Exhibit 2 is the certified copy of the judgment dated January 22, 1957 by which it was declared that the adoption of Joharilal to Poonamchand by Mst. Chandra was null and void. A decree for possession of the suit property was also granted in favour of the plaintiff. Exhibit 3 is the copy of the decree-sheet. At this stage it may be observed that a little before the suit was decreed, Chiranji-lal became major and he was substituted as guardian of his brother Nathulal in place of Noratmal. The decree-holders, Chiranjilal and Nathulal, thereafter filed an execution application which was registered as Execution case No. 228 of 1957. In the course of execution the parties filed a compromise on April 15, 1958. A copy of the Compromise Petition lias been placed on record and marked Exhibit 4. It was mentioned in the compromise petition that the plaintiffs had received a sum of Rs. 3,500/- from Joharilal adopted son of Poonamchand in lieu of their claim in the suit and Joharilal had executed a sale deed in respect of the house in question on May 7, 1956. It was further mentioned that the plaintiffs had confirmed the settlement. The executing court granted leave for compromise and dismissed the execution petition by its order dated November 27, 1958 in full satisfaction. Copy of the order of the executing court is Exhibit 5.
4. On 28-4-1960 Noratmal sold the suit property for Rs. 7,500/- to the defendantNo. 3 Heeralal. A copy of this sale deed has also been placed on record and marked Exhibit 7. After about three years Chiranjilal gave a notice through his counsel to Noratmal and the minor Nathulal under the guardianship of Noratmal that he would get the house partitioned and his share separated and instituted the present suit in the court of Civil Judge, Ajmer, on April 27, 1963 for partition of the suit property. It was alleged that the sale deed dated May 7, 1956 (Exhibit 6) executed by Joharilal in favour of Noratmal was for the benefit of the plaintiff Chiranjilal and his minor brother Nathulal.
5. The suit was resisted by all the defendants namely, Noratmal, Nathulal, minor represented by his guardian Noratmal and the vendee Hiralal.
6. After recording the evidence produced by the parties, the learned Civil Judge, as already stated above, dismissed the plaintiff's suit and the learned District Judge, Ajmer, also upheld the trial court's judgment and decree. Hence this appeal.
7. The first point for consideration in this case is whether Noratmal was only an ostensible owner or in other words a 'benami-dar' and the real owners were Chiranjilal and Nathulal and if this point is decided in favour of the plaintiff, the next question would be whether the transferee Hiralal had acted in good faith in purchasing the property from Noratmal after taking reasonable care to ascertain that the transferor had the power to make the transfer. In other words, whether the transfer in favour of Hiralal is protected by virtue of Section 41 of the Transfer of Property Act.
8. Learned counsel for the appellant has argued in the first instance that Chiranjilal was a minor on May 7, 1956 when the sale deed, Exhibit 6, was executed by Joharilal in favour of Noratmal. In this connection he has relied upon the verification in the plaint Exhibit 1 dated December 5, 1955, which runs as under :--
'I, Noratmal the guardian of Chiranjilal and Nathulal of Ajmer do hereby verify...........prayer.
He has also relied upon the fact that Chiranjilal was made guardian of Nathulal in place of Noratmal on January 15, 1957 and notearlier. It is contended that the fact that Noratmal made the settlement on behalf of Chiranjilal and Nathulal on May 7, 1956 goes to show that both of them were minors. Lastly it is contended that the fact that the executing court granted leave for compromise on November 27, 1958 goes to show that till that date Chiranjilal had not become major.
9. I have considered the arguments advanced by the learned counsel for the appellant and am of the opinion that they are devoid of substance. In the first place there is a clear and unequivocal statement of Noratmal, D. W, 1, father of Chiranjilal that Chiranjilal was born on March 23, 1936. No cross-examination has been directed worth the name on the point in the course of statement of Noratmal. Chiranjilal himself has stated that he cannot say as to when he became major. Besides that, the point seems to have been given up by the appellant in the lower appellate court as would appear from the following observation by the learned District Judge :
'Chiranjilal thus became major on 27-3-1954, which has not been challenged in this court on his behalf.'
ft further appears that no such ground has been taken in the memo of appeal filed in this Court. I therefore, hold in agreement with the learned District Judge that Chiranjilal had attained majority on March 27, 1954 and he was not a minor when the sale deed Exhibit 6 was executed by Joharilal.
10. Learned counsel then contended that even if it is found that Chiranjilal was major ait the time when the sale deed exhibit 6 was executed then also there is good evidence on the record to lead to the conclusion that Noratmal was mentioned as a vendee in the sale deed Exhibit 6 only as a 'Benamidar' or an ostensible owner and not the real owner. In this connection he has urged that a very big portion of the consideration of sale came from the minors and that Noratmal being the father of Chiranjilal and Nathulal was in a fiduciary position. In support of his contention learned counsel has relied upon Mt. Bilas Kunwar v. Desraj Ranjit Singh, AIR 1915 PC 96; Srimathi Nrityamoni Dassi v. Lakhan Chandra Sen, AIR 1916 PC 96 and Kumar Harish Chandra Singh Deo v. Banshidhar Mohanty, AIR 1965 SC 1738. On the other hand, learned counsel for the respondents has argued that the plaintiff had not based his case on the ground that the transaction of sale (exhibit 6) was Benami and the real owners were Chiranjilal and Nathulal, nor has succeeded in proving so.
11. In Srimathi Nrityamoni Dassi's case AIR 1916 PC 96 their Lordships were pleased to observe that they had repeatedly laid down that in case where it was asserted that an assignment in the name of one person is in reality for the benefit of another, the real test is the source whence the consideration came.
12. In Mt. Bilas Kunwar's case AIR 1915 PC 96 where a purchase was made in the name of a mistress, but the consideration came from the person who had kept the mistress and in fact that person's wife stayed in the house but the mistress never lived in the bungalow, it was held that the purchase was benami and the mistress had no title thereto. In the facts and circumstances of the case their Lordships were pleased to observe that relationship is a circumstance which is taken into consideration in India in determining whether the transaction is benami or not.
13. In Kumar Harish Chandra Singh's case AIR 1965 SC 1738 it was held that benami transactions are recognised in India and that the beneficial owner of property standing in the name of another must necessarily be entitled to institute a suit in respect to it.
14. In my opinion none of the authorities relied upon by the learned counsel helps the appellant. Attention may be drawn to the relevant allegation in the plaint. In para 3 (b) it has been alleged that :
'Jawaharlal executed a sale deed of abovesaid property for the benefit of plaintiff and defendant No. 2 in favour of their father, present defendant No. 1.'
and then in para No. 5 it has been further alleged that :
'the defendant No. 1 continued to look after and manage the abovesaid property as father of plaintiff and defendant No. 2.'
Admittedly there is no other allegation in the plaint regarding the sale transaction being benami. Hence the learned District Judge was justified in coming to the conclusion that there is no specific averment on the point that Noratmal was only an ostensible owner and the ownership of the property in fact, vested in the plaintiff. It was the duty of the plaintiff to have stated in the plaint in clear terms that though the sale deed mentioned his father as the purchaser but the real purchasers were he and his brother Nathulal. I agree with the learned counsel for the appellant that the use of word 'Benami' or 'Benamidar' was not necessary. But at the same time the plaintiff should have alleged that he was one of the real owners and Noratmal was only an ostensible owner.
15. Apart from that, even as a witness Chiranjilal has nowhere stated that he was the real owner in sale deed Exhibit 6 and his father was only a Benamidar.
16. In Sm. Surasaibalini Debi v. Phannidra Mohan Majumdar, AIR 1965 SC 1364 their Lordships held :
'We start with the position that the Court will presume an ostensible title to be the real title unless a plaintiff who seeks to assert the contrary pleads and proves that the ostensible owner is not the real owner. In other words, the onus is on the person who alleges a transaction to be benami to make it out. Of course, the source of the funds from which the purchase is made coupled withthe manner of its enjoyment would be a very material factor for establishing the case of benami but the mere proof of the source of the purchase money would not finally establish the benami nature of the defendant's title. Even where the plaintiff purchases property with his own funds in the name of 'B' the surrounding circumstances the mode of enjoyment might still indicate that it was intended to be a gift to 'B' and it would then not be a case of benami notwithstanding that the purchase money did not proceed from the defendant.'
17. Learned counsel for the appellant laid much store by the fact that a large portion of the sale price came from the minors namely Rs. 3,500/- which were to be paid by Joharilal to Chiranjilal and Nathulal, were adjusted towards the sale consideration. This is true. However, no reason has been brought out on the record and none was stated at the bar as to why the sale deed was got executed in favour of Noratmal. It is not the plaintiff's case that the property would have been exposed to some risk or may have been taken away by creditors if the sale had been got executed in favour of the plaintiff and Nathulal. As observed by their Lordships of the Supreme Court in Sm. Surasaibalini's case AIR 1965 SC 1364 that mere proof of the source of purchase money would not finally establish the benami nature of the defendant's title. At this stage, I may also observe that the learned counsel for the appellant candidly conceded that the burden of proving 'benami' nature of the transaction --squarely lay on the appellant. In Premsukh v. Hanumamdas, 1969 Raj LW 520, relying on AIR 1955 Mad 648, (Krishan v. Ganpathi), I had observed that a number of facts may be considered for determining benami nature of a transaction namely,
1. the source from which the purchase money was derived;
2. the possession of the property;
3. the position of the parties and their relation to one another;
4. the circumstances, or otherwise, of the alleged transferor;
5. his motive in taking the alleged transfer;
6. the custody and production of the title deed; and
7. the previous and subsequent conduct of the parties.
18. Now, it may be observed that apart from a very vague pleading on the point of benami (and that too on a very charitable construction of the plaint), there is no allegation in the plaint that Noratmal had no right or authority to sell the property to Hiralal. A perusal of the compromise petition (Exhibit 4) further shows that Chiranjilal had confirmed the settlement arrived at by his father and had also admitted validity of the sale deed (Exhibit 6) executed in favour of his father. It may be observed that Chiranjilal was about22 years old when this compromise petition (Exhibit 4) was filed, as it has already been held in the earlier part of this judgment that he had become major in 1954. There is no satisfactory explanation why Chiranjilal remained silent up-to 1963 when the present suit was filed and did not challenge the sale made in favour of Hiralal in 1960 earlier. There is also no explanation as to why he took no steps to expose the benami nature of the transaction of sale (exhibit 6) for all this time even though the sale deed (Exhibit 6) had been executed as early as on May, 7, 1956. One is also not able to understand for what reason Noratmal got the sale deed (Exhibit 6) executed in his favour when there was absolutely no impediment in getting it executed in favour of his sons Chiranjilal and Nathulal. No doubt, it is true that out of the consideration of Rupees 4,000/- for the sale, Rs. 3,500/-, which were to be recovered by Chiranjilal and Nathulal from Joharilal, were appropriated towards the sale price and there is no explanation from the side of the defendants as to why the sum of Rs. 3,500/- due to the minors was utilised towards the consideration for sale. But for that reason alone, no inference can be drawn against the defendant unless the plaintiff has first succeeded in discharging the burden of proving the 'benami' nature of the transaction.
19. At this stage it may also not be irrelevant to point out that Chiranjilal has admitted in his statement as P. W. 1 that he acquired full knowledge on May 7, 1956, of the sale deed (Ex. 6) having been executed in favour of his father but he did not raise any objection. He has further admitted that he had been living separate from his father since the last nine to ten years. It is also quite obvious that the custody of the sale deed. (Exhibit 6) remained throughout with Noratmal as it was Noratmal who handed over the document (Exhibit 6) to Hiralal at the time of the execution of the sale deed (Exhibit 7). There is also no evidence that possession of the house ever remained with the plaintiff or the plaintiff recovered rent for the same. Taking into consideration all these circumstances if both the courts below came to a concurrent finding that the plaintiff had not succeeded in establishing the 'benami' nature of the transaction, it cannot be said that their inference is necessarily wrong or liable to be interfered with in second appeal.
20. I have, therefore, come to the conclusion that the plaintiff-appellant cannot succeed in the first point. In this view of the matter, it is not necessary to deal with the question namely whether the transferee Hiralal is protected on account of the provisions of Section 41 of the Transfer of Property Act. As the plaintiff has failed to prove that he is the real owner of the property, the suit must fail.
21. The result is that I do not see any force in this appeal and hereby dismiss it with one set of costs to respondent No. 3,Hiralal transferee. Respondents Nos. 1 and 2, Noratmal and Nathulal, are left to bear their own costs.
22. Learned counsel for the appellant prays for certifying the case as fit one for appeal under Section 18 (2) of the Rajasthan High Court Ordinance. The prayer is refused.