1. In this appeal by the plaintiff, the sole question which remains for consideration here is whether the Subordinate Judge of Paridpur, reversing the Munsif of Chikandi who had decreed the suit, was right in holding that the appellant had failed to prove that he was the beneficial owner of the suit property under a document of transfer which stands in the name of the landlord defendants 1-15 who are his agnates.
2. But before the appellant can even begin to discharge the more than usually heavy onus which he has taken on himself to prove the benami it was necessary for the Courts below to consider and decide whether the aforesaid document in fact achieved what it purports to achieve, namely a conveyance of the property from the original owners to the persons in whose favour it was executed, whether as benamdars or as actual beneficial owners under the document which has been marked Ex 1(a). The defence of the respondent here (I am treating defendant 24 as the hole contesting respondent at this stage), was that he was transferee of the suit property from the heirs of Sonaulla in whose name the jote originally stood. Defendants 1-15 are the landlords. The document Ex. 1 (a) was executed by two of the five daughters of Sonaulla in favour of 19 persons, who are now said to be the benamdars of the plaintiff. The defence further was that this document which was registered on 12-1-1932 was never 'acted upon' - to use the phrase which appears in the judgments - that title remained with the executants who with other cosharers in 1938 transferred their entire interest to defendant 24 and others by one document and to defendant 24 Muchai Khan alone by another viz., Exs. B and N(1), registered in October 1938.
3. The first question which fell for decision, therefore, was whether the kabala Ex. 1(a) in fact transferred title to anyone or whether title continued to reside in the executants, in spite of of execution and registration. The landlord defendants 1-15 who appear as the claimants under this document have not entered contest in the present suit at any stage. Mr. Chakravarty contended in the first place that there was no meaning in the allegation that a duly executed and registered document was not 'acted upon' and that as it was a matter between the parties to the document, or as the case now stands, between the executants and the plaintiff who now sets himself up as the real claimant under it, it is not for anyone else to challenge it. No authority was placed before me in support of the contention which in any case raises a question of fact not law. I see no reason why in the-circumstances disclosed here, defendant 24 anyhow having been impleaded by the plaintiff (leaving aside defendants 19 a daughter of Sonaulla and 22 husband of another deceased daughter who appear to have joined in the contest below), should not be allowed to set up at defence to such a suit as this where his interest, purporting to have been acquired by the kabalas Ex. B series, was in serious jeopardy.
4. If Ex. 1(a) is a deed of actual transfer, then the tenant executants were vendors and the-landlord-claimants vendees under it. Yet in spite-of this, we find these landlords, 6 years later, instituting a rent Suit No. 1049 of 1938 against Julmatjan Bibi (widow of Sonaulla and others for arrears of rent of this selfsame holding. lathe course of the suit they filed the petition Ex. D, describing the ostensible document of transfer in their favour as 'false'. The suit was decreed and, as Ex. F shows, full satisfaction of the decree was recorded at the instance of the plaintiffs. I cannot agree with Mr. Chakravarty that this act can be construed in favour of the plaintiff's present case of benami and that by calling their title deed 'false' the landlords meant that, so far as they were concerned, it conveyed: no title, implying that real title vested in some one else, namely the plaintiff. There is good1 reason for finding, as the lower appellate Court has found, that the document was executed in favour of the landlords on their own behalf and that when it was discovered that the property was subject to the undisclosed kot mortgages (EX. G series), the claimants under it renounced their character of vendees and chose to resume the old relationship of landlord vis-a-vis their apparent vendors. There is no bar that I know of two persons who have a claim to be transferees under a document renouncing that position for reasons of their own by subsequent conduct and allowing the original relationship, (that of landlord and tenant), between the parties to be resumed. I have not the slightest doubt that this: is what happened in the present case. There is no other explanation of the bringing of a rent stilt in 1938 and getting satisfaction of the decree recorded according to law. Exhibit D was thus rightly construed as containing an admission that the document never became operative.
5. This is what the lower appellate Court has found with regard to the character of the title deed on which plaintiff now sues as beneficial owner. My own opinion is that this is a finding of fact. In any case I find myself in agreement with it and if the position is that no effective title passed in 1932 but that it continued to reside with the transferors and other cosharers, then these latter had subsisting title to pass to defendant 24 and others, and the further question of plaintiff being the benamdar for his agnates does not really require consideration, for, if it was ineffective against the persons in whose favour it was executed, it is equally ineffective on the supposition that they were the benamdars of someone else. Again the Subordinate Judge has given sufficient reason for holding that in any case the plaintiff was no benamdar (beneficial owner?). It may be true to say that he has not considered every single circumstance or other piece of evidence on which the Munsif relied in coming to the opposite conclusion but I cannot agree that the judgment is not satisfactory, though it is one of reversal. Benami can only be deduced from circumstances. Many relevant circumstances have received due consideration. In particular one may mention the custody of the document and possession of the land. The first circumstance does not help plaintiff in the present instance for there was no difficulty in the Hindu defendants 1-15 making over the document to their agnate the plaintiff, when the executants, certain illiterate Muslim women, had not chosen to retrieve it. Once the rent suit had been brought against them as tenants, six years after the document had on the face of it divested them of all title to the land, they had every reason to think that their position was assured, and that is the finding of the lower appellate Court on the subject. As regards possession of the land, the finding is against both the plaintiff and his so-called benamdars. The correspondence, Ex. 3 and E series has received sufficient attention from the Subordinate Judge who holds that it has been brought into existence to support the present case of benami. I have looked at those exhibits and without meaning any disrespect to the Faridpur pleader who is partly concerned, it is not unfair to say that they are pieces of paper which could be brought into existence any time.
6. I am satisfied after hearing both learned advocates at length that the judgment is not one which needs to be disturbed; there is sufficient discussion of the salient circumstances and Mr. Guha for the respondents is justified in contending that it largely depends on findings of fact which the lower appellate Court has chosen to construe adversely to the plaintiff. I am inclined to view the whole business as disingenuous; the landlords have not allowed the kabala in their favour to become operative; they, mutually with the executants of it agreed to the resumption of the status of landlord and tenant, and having recovered a rent decree, they want to turn round and regain the position of vendees which they lost by their previous conduct and admission. They cannot do it themselves and have set up the plaintiff their agnate to do it for them. I hold that he is rightly held to have failed to accomplish this not very creditable performance. The result is that this appeal fails and is dismissed with costs, to defendant 21 (Muchai Khan) alone.