1. This Second Appeal is against the decision of Sri S. N. Bhatta-charjee, Additional District Judge, 24 Par-ganas, in Title Appeal No. 1102 of 1969 affirming those of Sri B. P. Bose, Subordinate Judge, 5th Court, Alipore, made in Title Suit No. 80 of 1963.
2. The facts of the case lie in a short compass which may be stated like this :
One Sukhdas Bind mortgaged some properties to Rafikunnessa, wife of Md. Yusuf and Rahutunnessa, his mother. Rafikunnessa died, Md. Yusuf inherited her properties. Sukhdas Bind sold the property subject to that mortgage to Sarifan Bibi -- the plaintiff at a sum of Rs. 5,000/- on 9th August, 1955. On September 3, 1955, she brought the Title Suit No. 50 of 1955 against Md. Yusuf for redemption of the mortgage. On the 18th August, 1958, a preliminary decree was passed. That decree was put into execution which was registered as Title Execution Case No. 12 of 1958 at the instance of the plaintiff Sarifan Bibi against the defendant No. 2. Respondent No. 1 preferred an objection under Order 21, Rule 58 of the Code of Civil Procedure claiming the property as his own. Misc. Case started on the basis of that claim application, was allowed to be dismissed for default on 12th August, 1961, as the judgment-debtor Md. Yusuf cleared up the dues of the Title Execution Case No. 12 of 1958. Thereafter no further step was taken by the claimant Dilwar Hossain.
The plaintiff thereafter got a final decree in Title Suit No. 50 of 1955, which was upheld upto the Appellate Court. The plaintiff next started Title Execution Case No. 14 of 1962 in the 5th Court of Subordinate Judge at Alipore and the property in suit which has been described in Schedule 'A' was attached on 13th August, 1972. Defendant No. 1 Dilwar Hossain again filed an application under Order 21, Rule 58 of the Code of Civil Procedure. He claimed to have purchased the said property by means of a sale deed, Ext. C from Md. Yusuf, his brother on the 6th November, 1958. That application was registered as Misc. Case No. 40 of 1962 in that Court. His prayer for releasing the attachment of the said property was allowed on December 22, 1962. Against that order the plaintiff has filed the suit under the provisions of Order 21, Rule 63 of the Code of Civil Procedure.
The plaintiff asserted that defendant No. 1 was merely a benamdar of defendant No. 2 the judgment-debtor; that the property alleged to have been sold was for a paltry sum of Rs. 1,000/- though the actual value was much more than that which would not be less than Rs. 15,000/-; that the conveyance dated 6th November, 1958 was executed by the defendant No. 2 in favour of defendant No. 1 just after the preliminary decree in Mortgage Suit No. 50 of 1955 was passed. It was only to delay and defeat the claim of the plaintiff; it was a sham and colourable transaction; that the defendant No. 2 was all along in possession of the property in suit and defendant No. 1 had no right, title and interest as well as possession in the said property on the strength of sale deed referred to above. On the above allegations the plaintiff prayed for declaration that defendant No. 1 had no right, title and interest or possession in schedule 'A' property and that the same was liable for attachment for the dues of the plaintiff and that she was entitled to realise the decretal dues by sale of such properties.
Defendant No. 1 has contested the claim of the plaintiff. He has stoutly denied all the allegations of the plaint. According to him he is a bona fide purchaser for value of the property in suit. The sale in question was for consideration and that the said sale deed could not be said to be a sham and colourable transaction. It was further asserted that since his purchase he was in possession of the property in question.
3. Both the Courts below found against the plaintiff. As such this appeal has been preferred by her.
4. Mr. Sinha, learned Advocate fop the appellant has challenged the said finding on the following grounds :--
(1) That the defendant No. 1 having preferred claim in Title Execution Case No. 12 of 1958 and having allowed the same to be dismissed for default, he had no right to prefer another claim application as he did not take steps under Order 21, Rule 63 of the Code.
(2) That both the Courts below did not consider a very material question, i. e. the onus. According to Mr. Sinha the question of onus is very vital in this case and failure to consider the same has caused failure of justice.
(3) That both the Courts below have failed to consider the material fact as to the source of money by which the property was alleged to have been purchased.
5. Mr. Sen, learned Advocate for the respondent No. 1, on the other hand, submits that in the second appeal the Court is precluded from entering into the question of fact; the decision arrived at by the lower appellate Court is based on the consideration of the materials on record and as such it should not be disturbed. As regards the question of non-maintainability of the suit, Mr. Sen submits that as the claim in the earlier execution case was satisfied and in consequence of which the property was freed from attachment, the question of further filing the suit under the provision of Order 21, Rule 63 of the Code did not arise. For that reason Mr. Sen submits that the second claim case was maintainable.
6. We shall take up the first point raised by Mr. Sinha. The said point depends upon the consideration of the provisions as laid down in Order 21, Rule 58 and Order 21, Rule 63 of the Code. Some portion of these Rules may be quoted here :
Order 21, Rule 58 (1) :
'Where any claim is preferred or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he was a party to the suit.'' Provisions of Order 21, Rule 63 :'Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to estabh'sh the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive.'
7. The wording of these rules would indicate that these provisions have been made only for investigation as to whether certain properties are liable to be attached in execution of a decree. In course of investigation if it is found that it is not liable to be attached, the decree-holder may establish his claim to the property in dispute by bringing a suit under Order 21, Rule 63. Similarly, if a judgment-debtor is unsuccessful in the claim preferred, he may also take steps under Order 21, Rule 63. Mr. Sinha submits that as the claim application which arose out of Title Execution Case No. 12 of 1958 was allowed to be dismissed for default the claimant, i. e. defendant No. 1 ought to have filed a suit as contemplated in Order 21, Rule 63 of the Code; as he failed to do so, the said order of dismissal became conclu-sive, accordingly no further claim application is maintainable. Mr. Sen, on the other hand, stoutly contested the said proposition of law as has been enunciated by Mr. Sinha. We have considered this matter and we are of the view that when the question of attachment is no longer before the Court, further action by the claimant is not contemplated. If the judgment-debtor clears up the dues and the property is released from attachment, further question of institution of the suit under Order 21, Rule 63 of the Code does not arise. The claimant is interested to see that his interest in the property is not affected. As soon as the property is released from attachment he is free to have the same as his own and no question of filing a suit within a year from the date of dismissal of the claim application does arise.
8. In the instant case we have already noticed that the judgment-debtor cleared up the dues of the Title Execution Case No. 12 of 1958 and as such the claim application was allowed to be dismissed for default. In this background the claimant defendant No. 1 had no other responsibility to establish his right in the property as he was in no way affected by the order of the Court. The said views of ours get support from the decision of this Court in the case of Nazimunnessa Bibi v. Macharuddin Sarkar reported in AIR 1924 Cal 744. Rankin, J. (as His Lordship then was) and Page, J. observed--
'The principle is that the object of making a claim in execution is to remove the attachment, that when the attachment is withdrawn that object is gained and that if there exists no attachment or proceeding in execution on which the order in the claim case can take effect, one is not bound to bring a suit complaining of such order.'
9. The said decision was noticed with approval in the Full Bench decision in the case of Habib Ullah v. Mahmood, reported in AIR 1934 All 267. It was held therein :--
'On the attachment having ceased to exist within the period of one year from the dismissal of the objection, it is no longer incumbent upon the claimant to file a suit for a declaration of title to the property in order to avoid the collusiveness of the order in the claim case.'
10. For the reasons stated the first objection as raised by Mr. Sinha fails.
11. The most important point which comes for decision before us is whether from the materials on record it could be said that the Court of Appeal below has considered the question of onus in its proper perspective. As seen both the courts below failed to consider the very vital matter in deciding the point at issue. The entire case hinges on the question of the source of money, by which the property was purchased. Both the Courts below were led to think that the Sub-Registrar's endorsement showing payment of Rupees 1,000/- by defendant No. 1 to defendant No. 2 was sufficient to indicate that consideration actually passed and as such it could not be a benami transaction. When a person challenges a document to be a benami one, initial onus is undoubtedly on him, to prove the same. In a case when a transaction is challenged as a benami the burden of proof is on him who seeks to give a transaction a different meaning and complexion from what it bears on its face, that is who maintains that the apparent state of thing is not a real one. This leads us to consider the question of onus. Both the Courts below have not applied their mind to this question as to on whom the onus lay. From the trend of discussion of the judgment we are convinced that the learned Court of Appeal below was of the view that the onus which initially lay on the plaintiff, could never be shifted. In a case when the transaction is between the brothers and at a time when one of the brothers is found to be involved in debt and his property is threatened to be sold and when the consideration money as stated in the deed is abnormally low a slight evidence on the part of the plaintiff is sufficient to shift the onus on the shoulder of the defendant, the alleged purchaser to prove the source of money from which he claimed to have purchased the same. Before we deal with this matter further, we may note here the following admitted facts.
12. That the sale deed, Ext. 'C' was executed on 6-11-1958 after preliminary decree which was passed on the 18th August, 1958; that the defendant No. 2 transferred the same to Dilwar Hossain, defendant No. 1, his brother, that the property of a considerable value, was sold at a paltry sum of Rs. 1,000/-; that defendant No. 1 had no money of his own either to repair his house or to pay the mutation fee; that the mutation of the name of Dilwar Hossain defendant No. 1 could not be effected even long after the date of sale; Yusuf was also found to live in the disputed property even after the sale.
13. We have already observed that When the transaction takes place between close relations and at a time when the property of the debtor might stand the risk of being attached to be sold by execution of a decree, solemnity of such a transaction loses much of its importance and a slight evidence challenging the genuineness of such transaction shifts the onus on the shoulder of that person who claims to have derived his title by the same.
14. The Court of Appeal below was also of the view that the transaction in question was highly suspicious. In more than one place he remarked like that. But unfortunately he failed to appreciate the question of onus in the manner in which such cases are to be considered. He has laid much stress upon the custody of document and also the endorsement of the Sub-Registrar on the back of Ext. C, sale deed. In a case like this the main thing to be considered is the source of money. The mere endorsement on the back of the document by the Sub-Registrar may indicate that the purchaser paid sale price to the vendor but that by itself is not sufficient to hold that the money shown to have been paid actually belonged to him. That might be a show to keep up the character of the sale deed. In the absence of any evidence to prove that the purchaser had the money and he, with the same purchased it, the onus which lies on him cannot be said to have been discharged. When the defendant fails to adduce independent evidence to prove the source of money, no conclusion in his favour should be arrived at, merely on the ground of paucity of evidence which is his own creation.
15. Mr. Sen has submitted that the above is the question of fact. This Court has got no jurisdiction to enter into the same. The said contention of Mr. Sen is not acceptable to us. The points discussed above and the question of onus arising therefrom is the mixed question of fact and law. The ultimate finding on the issue must, therefore, be an inference to be drawn from the facts found, on the application of the proper principles of law. An inference to be drawn from such facts is a question of law. That is the view expressed by their Lordships in the case of Sree Meenakshi Mills Ltd. v. Commrs. of Income-tax, reported in 0044/1956 : 1SCR691 . In the case of V. Rama Chandra Ayyar v. Ramalingam Chettiar, reported in : 3SCR604 Their Lordships have also dealt with this matter elaborately. The following is the view expressed by their Lordships :--
'If in dealing with a question of fact, the lower appellate court has placed the onus on a wrong party and its finding of fact is the result substantially of this wrong approach that may be regarded as a defect in procedure.'
16. In the instant case we have seen that the Court of appeal below while discussing the evidence more than once held that the plaintiff could not adduce any evidence to disprove the factum of passing of consideration from defendant No. 1 to defendant No. 2. He overlooked the fact that the plaintiff has denied the genuineness of the document and passing of such consideration. It is well known that in such a case when a document is executed to delay and defeat the creditor, the creditor cannot get any opportunity to be present at the place where the transaction is completed. What was possible for him is to deny the said transaction. In case he denies the same the initial onus which lies on him, can be said to have been discharged and then the onus is shifted on the shoulder of the alleged purchaser to show that he had money and that he with the same purchased that property. Failure to consider the case in the way as indicated above, gives a right to this court to interfere with the finding and to re-assess the entire evidence. Moreover the question of burden of proof is a question of law and the High Court is entitled to interfere in the second appeal, if the lower appellate court has not considered the same in its proper perspective. The said principle has been enunciated in the case of Ladli Parshad Jaiswal v. Kamal Distillery Co. Ltd., Karaal, reported in : 1SCR270 .
17. In addition to the above infirmities which have been noticed in this case, we also find that the court of appeal below has come to a conclusion making good deal of assumption of facts and also of certain materials though not on record. For the reasons and as such, the said fact gives power and jurisdiction to this court to interfere with the said finding.
18. Both the courts below launched themselves in error in relying on the solitary evidence of Dilwar Hossain to counter the allegations of the plaintiff as to the benami transaction. D. W. 1 Dilwar Hossain admittedly was not a man of affluence rather he was a man with meagre income having no money to repair the house as well. Not a single witness has been examined to show what was the source from which Dilwar Hossain got money.
19. Moreover, the learned Judge made good deal of assumption of facts though there was no material in support of the same. The Judge has clearly erred in holding that mere delay in paying heavy amount to the landlord to mutate the name, would not go against him. There is no evidence in this regard. In this connection reference may also be made to another fact from which it will be seen that the learned Judge based his finding on certain materials not on record. Though there, was no evidence the learned Judge himself invented that Yusuf, defendant No. 2 had to sell the property as he had no money to keep the same under proper repairs. The above facts will indicate that the Court of first appeal failed to consider the most vital question of onus and made good deal of assumption of facts. In the result this Court derives its powers to interfere with the decision which is manifestly wrong and based on materials not in evidence. Another fact may be considered along with it that Yusuf who was a material witness of this case has not been produced in Court and he has not been examined as a witness on behalf of Dilwar without showing any reason whatsoever. The non-examination of Yusuf also goes against the bona fides of the transaction with which we are concerned. Both the learned Courts below failed to consider this aspect of the case as well.
20. From the evidence of D. W. 1 it has been established that he was a poor man and that he had no financial solvency to repair the house and to pay the Zamindar's dues after his alleged purchase. It is also established from his evidence that in fact the income of the property would be not less than Rs. 300/-. per month. He admittedly resides in other house and not in the premises in question. It is established from his evidence and the evidence of his son that defendant No. 2 has been residing in some part of the house, other rooms being tenanted. Some rent receipts have been filed in order to show that the rent has been paid by defendant No. 1. It may be noted that they are of recent origin. As such no importance can be attached to the same. D. W. 2 is the son of Dilwar Hossain and son-in-law of defendant No. 2. He admitted that his father had bis separate hat near the disputed one and that he had been all along residing there. D. W. 3 admitted that Md. Yusuf had been staying in the suit house though he tried to qualify his statement by saying that he came there few months back as he fell ill. He is a tenant so also D. W. 4. The learned Judge laid much stress upon the evidence of these witnesses forgetting for the moment that they were inducted in the said premises by defendant No. 2 as such they must be more inclined to help Dilwar rather than helping the plaintiff.
21. Having heard the learned Advocates of both the parties and considering the materials on record, we are of the view that the decision arrived at by Courts below being against the weight of evidence and point of law involved, cannot be supported for the reasons already stated. The finding is perverse.
22. In the result the appeal is allowed with costs. The judgment and decree passed by the Court below is set aside and the plaintiffs suit be decreed in terms of the prayer made in the plaint. Hearing fee is assessed at 10 GMs.
R. Bhattacharya, J.
23. I agree.