C.M. Lodha, J.
1. Hanumandas-plaintiff-respondent No. 1 obtained a decree against the judgment--debtor Nathu-respondent No. 2 for Rs. 5588/- on 30-9-59 and in execution of that decree got the house in dispute attached and sold. Premsukh, a brother of Nathu, filed objections to the attachment on 18-7-1960 but the sale of the house, however, took place on 30-7-1960 and was knocked down to Pannalai for Rs. 2205/-. Before the sale was confirmed the objections filed by Premsukh was allowed on 21-12-1961 and the property was ordered to be released from attachment. Consequently Hanumandas filed the present suit on 1-5-1962 in the court of Civil Judge, Bikaner for declaration that the house in dispute belongs, to the judgment--debtor Nathu and was attached from his possession, and, therefore, it may be held to be attachable and liable to be sold in execution of his deer e Here, it may be held stated that the case put forward by Premsukh in the objection filed under Order XXI, Rule 58, Civil Procedure Code was that there was a decree of Bhabhuta against Dugar, Nathu and Roopa and it was in execution of that decree that the house in question was auctioned and purchased by Premsukh. The Plaintiff Hanuman Das has stated in the plaintiff Hanuman Dis has stated in the plaint that the house in question was never purchased by Premsukh and in the alternative he pleaded that even if it be held that the house in question was purchased by Premsukh in execution of Bhoora's decree, it was only the construction standing on the land which had been purchased and not the land. It was also alleged in the alternative that Premsukh is a brother of Nathu and the property in question as a matter of fact had been purchased by Nathu himself and the name of Premsukh was mentioned as a purchaser only as Benamidar.
2. The judgment-debtor Nathu did not file any written statement but Premsukh in his written statement contested that he was the real purchaser of the house in question and had thereby become its full owner. In substance he denied the plaintiff's claim on the ground that Nathu had no right, title or interest in the property in dispute, and thus contended that the plaintiff Hanumandas had no right to proceed against the house in question for realisation of his decretal amount.
3. After recording the evidence of the parties on the issues framed by it, the learned trial court held that the house in question had been purchased by Premsukh only as a Benamider in execution of the decree of Bhabhuta and the real purchasers were Nathu and Dungar who continued to remain in possession of the house even after the alleged sale in favour of Premsukh. In this view of the matter the learned trial court decreed the plaintiff's suit and gave a declaration in his favour that the house in question belonged to Nathu and was liable to be attached and sold in execution of the decree obtained by Hanumandas against Nathu.
4. Aggrieved by the judgment and decree of the trial court defendant Premsukh filed an appeal which has been dismissed by the District Judge, Bikaner by his judgment and decree dated 8-3 65. Consequently the defendant Premsukh has come in second appeal to this Court.
5. Mr. Balkishan Acharya, Learned Counsel for the appellant, has submitted that the plaintiff had come forward with inconsistent pleadings in the plaint. It is submitted that in the first instance the plaintiff has stated in the plaint that the house in question had never been sold in execution of the decree of Bhabhuta but that it was other house and then it has been pleaded that the sale in favour of Premsukh in respect of the house which was sold in execution of the decree of Bhabhuta was Benami. It is urged by him that it was not open to the plaintiff to take these inconsistent pleas and the court below committed an error of law in granting relief to the plaintiff on the basis of such inconsistent pleas. In the second place he has argued that there is no satisfactory evidence on the record for coming to the conclusion that Premsukh never got possession of the property in dispute and that the real purchaser of the house was Nathu and the name of Premsukh was mentioned in the sale certificate only as Benamidar.
6. I have gone through the plaint. It is no doubt correct that the plaintiff has averred in the plaint in the first instance that the house in question, or to be more precise, the 'Malba' belonging to Nathu was never sold in execution of the decree of Bhabhuta against Dugar, Nathu and Roopa and in the alternative the plaintiff has also alleged that in any case even if it be held that the house in question was the very house which was sold in execution of the decree of Bhabhuta, the real purchasers were Nathu and Dungar and Premsukh was only shown as a Benamidar. This position was denied by the defendant Premsukh as a result of which inter alia the following issue was framed:
2. Whether the sale in 1943 in favour of Premsukh was Benami, and Nathu was the real purchaser
7. Both parties led evidence on the point and no objection was ever raised at any stage of the litigation that it was not open to the plaintiff to raise such an inconsistent plea. That apart, I do not see any thing wrong in the alternative position taken by the plaintiff and there is nothing in law which prevents the plaintiff from taking such a position as has been taken by the plaintiff in the present case.
8. The question then arises whether it has been established on the record that Premsukh was only Benamidar and the real purchaser was Nathu. In this connection the lower court has relied upon a number of circumstances in support of its finding that Premsukh was only Benamidar. He has held that even though the sale took place in the year 1943 no effort was made by Premsukh to obtain the possession of the property purchased by him though the Court. On the other hand a receipt dated 1-9-1943 (marked Ex. A. 1) was produced by Premsukh along with the objection filed by him under Order XXI, Rule 58 C.P.C. This receipt has been held to be suspicious by the learned District Judge on the ground that it was produced at a very late stage and Nathu has not been produced to prove it, even, though it purports to be written by him. He has also found that Premsukh did not give the bid in the open auction sale is alleged to have taken place as far back as 1943 A. D. The learned Judge has also held that the theory put forth by Premsukh that a few years after the sale he had sold away half of the Property purchased by him to Dungar by executing a sale deed in his favour was wholly unsustantiated in a smuch as even according to Premsukh and Dungar no sale deed had been executed to evidence this transaction. He also took into consideration the fact that Premsukh is a close relation of Nathu, a brother, and the purchase was shown to be in favour of Premsukh in order that the property may not be further attached by the same creditor or other or creditors of Nathu. In the ultimate analysis he came to the conclusion that Premsukh was proved to be a benamidar in respect of the sale of this property in execution of the decree of Bhabhuta.
9. So far as these findings are concerned the critcism advanced by the learned Counsel for the appellant is that the evidence regarding continuous possession of Nathu and Dunger after the alleged sale has not been properly appreciated by the learned District Judge. The learned Counsel falled to point out any misreading of the evidence by the District Judge, and sitting as a Court of second appeal it is not open to me to reappreciate the evidence and reverse a finding of fact. However, I may state that I have gone through the statements of some of the material witnesses viz. P.W. 1 Hanumandas, D. Ws. Premsukh and Dunger and am of the opinion that no fault can be found with the finding of the learned property even after the alleged sale in his favour and that Nathu and Dungar continued to remain in possession of the sanem abd further that there is no convincing evidence to show that at any point of time Premsukh obtained the possession of the property in question from Dungar and Nathu and the receipt Ex. A. 1 alleged to have been execduted by Nathu ad Dungar in favour of Premsukh cannot be relied upon. Learned Counsel for the appellant has however submitted that looking to the relationship of Premsukh with Nathu and Dungar no adverse inference should have been drawn against Premsukh with Nathu and Dungar no adverse inference should have been drawn against Premsukh on the ground that he allowed his brothers Nathu and Dungar to remain in possession of the property even after he had purchased the property in court sale. He has also argued that one of the essential ingredients to prove the Benami nature of the transaction viz. that the consideration had passed from the real purchaser has not been established. It is, therefore argued that the finding arrived at by the learned District Judge as to the Benami nature of the transaction is vitiated. In support of his contention he has relied upon Krishna v. Ganpathi : AIR1955Mad648 , Sitamma v. Sitapatirao AIR 1938 Mad. 8, and Khabiranhessa Bibi v. Sudhamoy Bose : AIR1958Cal733 .
10. So far as the question of source of money for purchasing the property is concerned the learned District Judge has not dealt with the matter at all and the trial court has held that Dungar (D.W. 7) has himself admitted even though jn his unguarded moments in the course of cross-examination that the consideration of Rs. 301/- for the purchase of the property was paid by Nathu. In re-examination the witness has stated that he had not mentioned the name of Nathu as the person who paid the consideration but in fact he had mentioned the name of Premsukh. The learned Counsel is correct in his submission that the plaintiff has not led any evidence to show that the money had been paid by the real purchaser Nathu. But while judging the question of the source of purchase price one has to bear in mind that the dispute in the present case has arisen between Hanuman Das, on the one hand, who is a perfect stranger to the transaction and the real purchaser and the alleged benamidar, on the other, who are brothers and it is only within their knowledge as to from what source the purchase money had come. It was held in Shamsher Ali v. Smt. Shirin Bai ILR 1963 M.P. 878 that in establishing benami nature of a transaction the cardinal point to be proved is source of money, but different Considerations do arise where the dispute is not between the benamidar of his representative on one side and the real owner or his representative on the other. In such a case, lack of evidence, particularly about the source of money, does not tell against the person attaching the transaction as benami. In Gangadara Ayyar v. Subramania AIR 1949 F.C. 88 their Lordships were pleased to observe as follows,-
It is settled law that the onus of establishing that a transaction is benami is on the plaintiff 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. It is also well established that in a case where it is asserted that an assignment in the name of the person is in reality for the benefit of another, the real test is the source whence the consideration came and that when it is not possible to obtain evidence which conclusivly establishes or rebuts the allegation, the case must be dealt with on reasonable probabilities and legal inferences arising from proved or admitted facts.
11. In Krishna v. Ganpathi : AIR1955Mad648 the learned Judges laid down that the following facts may be considered for determining benami nature of a transaction:
(i) the source from which the purchase money was derived,
(ii) the possession of the property, i.e.
(a) the party in possession and the nature and character of his possession;
(b) whether the possession was taken after the alleged purchaser if not taken, why not;
(iii) the position of the parties and their relation to one another;
(iv) the circumstances, pecuniary or otherwise, of the alleged transferor;
(v) his motive in taking the alleged transfer;
(vi) the custody and production of the title deed; and
(vii) the previous and subsequent conduct of the parties.
12. I may submit, with respect, that these facts do furnish a good guide in determination of the question whether a transaction is benami or not. But it must be noted that each of these circumstances taken by itself does not afford conclusive proof of the intention to transfer the ownership from one person to the other, but a combination of some or all of them and a proper weighing and appreciation of their value would go a great way towards indicating whether the ownership has been really transferred or where the real title lies.
13. As already observed above there is no definite evidence on the record as to the source from which the purchase money had come. But the wavering statement of D.W. 7 Dungar no doubt raises an inference against Premsukh. That apart, since the dispute in this case is not between the real purchaser and the benamidar but between a third person on the one hand and the alleged benamidar and the real purchaser on the other, it is not open to the alleged benamidar to rest his case on mere lack of positive evidence on this point. The case has to be decided on totality of the circumstances brought on the record. Apart from the question of source of money all other material considerations for judging the benami nature of the transaction have been found by the District Judge against the defendant Premsukh and I do not see any substantial reason for taking a different view in the matter.
14. In Kailash Pati v. Jagarnath AIR 1935 All. 884 it was observed that there is no authority for holding that evidence to prove that a transaction was benami must necessarily be direct evidence. I may add that in a majority of cases the finding as to benami nature of the transaction has to be based on inference to be drawn from certain proved facts. Learned Counsel for the appellant has failed to convince me that the finding of the learned District Judge in favour of the benami transaction is based on no evidence or is based on misreading of evidence. On the other hand I find that it is based on evidence and consequently it cannot be interfered with, by me in second appeal.
15. Learned Counsel for the respondent also submitted that there is force in the plaintiff's allegation that Premsukh had never purchased the property of Nathu, but what he had purchased was only the property of Dungar and Roopa, In support of his contention he had invited my attention to the sale certificate Ex. 2 On the other hand learned Counsel for the appellant has submitted that this contention based on the sale certificate was never put forward in any of the lower court. He referred to certain order sheets in the execution case Bhabhuta v. Dungar and Ors. to show that what had been purchased was not only the interest of Dungar and Roopa but of Nathu also. I may, however, state that but for the fact that the title of the case is mentioned as decree-holder Bhabhuta v. Judgment-debtors Dungar, Roopa and Nathu, there is nothing else to show on the record of this case that Nathu's share of the property had also been included in the sale. But I do not wish to give any firm finding on this point because this aspect of the case was never put forth on behalf of the respondent in any of the two lower courts and consequently there was no opportunity for them to give a finding thereon. Be that as it may, the fact remains that the lower court has found in favour of the benami transaction and has held that the property in question vested in Nathu and consequently the plaintiff Hanumandas was entitled to proceed against the property for realisation of his decretal amount. This finding was sufficient to decree the plaintiffs' suit.
16. In the result I uphold the judgment and decree of the learned District Judge, Bikaner and dismiss this appeal with costs.
17. Learned Counsel for the appellant prays for certifying the case to be a fit one for appeal to Division Bench under Section 18 of the Rajasthan Ordinance, 1949. The prayer is disallowed.