Sudhir Ranjan Roy, J.
1. This appeal by the plaintiffs is against the judgment and decree of reversal passed by the learned Subordinate Judge, Additional Court, Nadia, in Title Appeal No. 82/69 (20/69).
2. The plaintiffs filed Title Suit No. 693 of 1965 before the learned Munsif at Ranaghat in the District of Nadia for a declaration of their 14 annas interest in the suit lands and for permanent injunction restraining the defendants from disturbing their possession in respect thereof.
3. According to the plaintiffs, the landsappertaining to the suit khatians werepurchased by Hazi Abdul Aziz, their fatherand one Satyendra Chandra Ganguly by akobala dated Nov. 17, 1943, each of themhaving a moiety share in the properties.Thereafter, Satyendra Chandra Ganguly bya kobala dated April 6, 1957 sold his 8 annasshare in the said properties to Hazi AbdulAziz, who purchased the same in the benamiof his third wife, the defendant No. 1,Chabbahan Bibi for a consideration ofRs. 900/-. Though the kobala was taken inthe name of the defendant No. 1, theconsideration money was paid by Hazi AbdulAziz and he was also in exclusive possessionthereof as the owner.
4. As a matter of fact, the defendant No. 1 who belonged to a poor family, did not have the means to purchase the properties.
5. On the death of Hazi Abdul Aziz sometime in 1964, the plaintiffs as his son and daughter inherited 14 annas share in the said properties and the defendant No. 1 inherited 2 annas share and they are in joint possession in respect thereof.
6. However, taking advantage of the factthat the properties were acquired in her name, the defendant No. 1 transferred certain portions thereof to different persons, which compelled the plaintiffs to file the instant suit for a declaration of their share in the said properties and for permanent injunction.
7. The defendant No. 1 contested the suit by filing a written statement alleging inter alia that the properties in question were purchased by her with the money she received from her brother and also from her first husband. The allegation that her husband Hazi Abdul Aziz acquired the properties in her banami was denied by her. She also claimed to be in possession of the properties since her purchase.
8. The defendants Nos. 2, 3 and 4 who were subsequently added as parties defendants as purchasers from the defendant No. 1, in their separate written statement supported the case made out by the defendant No. 1. They also claimed to be in possession of the properties they purchased from the defendant No. 1 by a kobala dated Nov. 24, 1966.
9. The learned Munsif, who tried the suit, found on evidence, both oral and documentary, that the properties in suit were actually purchased by Hazi Abdul Aziz with his own money in the banami of his wife, the defendant No. 1 Chabbahan Bibi. He also found that the defendant No. 1 did not have any means to purchase the properties and she was also not in possession thereof. Thus, on the basis that the properties in suit actually belonged to Hazi Abdul Aziz, the father of the plaintiffs he decreed the suit in part declaring the plaintiffs' 14 annas share in respect thereof but declined to pass a decree for permanent injunction on the ground that the defendants were co-sharers of the plaintiffs.
10 . Being aggrieved by the judgment and decree passed by the learned Munsif, the defendant preferred an appeal before the learned District Judge being Title Appeal No. 20/69, which on being transferred to the Additional Court of the Subordinate Judge, Nadia, was renumbered as Title Appeal No. 82/69.
11. The learned Subordinate Judge on the basis of the evidence adduced by the parties before the learned trial Court held that the transaction in question was not benami in character as alleged by the plaintiffs. The properties in suit according to the learned Judge were actually purchased by the defendant No. 1 with her own money andthat she was the real owner in respect thereof. Regarding possession, his finding was that it was the defendants who were in actual possession of the properties and neither Hazi Abdul Aziz nor the plaintiffs ever had any possession in respect thereof. The custody of the document in question, he found, was all along with the defendant No. 1. According to him, some of the purchasers from the defendant No. 1 not have been made parties the suit was bad for defect of parties and was not maintainable as such. He, accordingly, allowed the appeal and set aside the judgment and decree passed by the learned Munsif.
12. Being aggrieved, the plaintiffs have come up in appeal before this Court.
13. Mr. Roy Chowdhury, the learned Advocate, appearing on behalf of the appellants, assailed the judgment of the learned lower appellate Court on three different grounds, namely, that the Court having found that the suit was bad for defect of parties, should not have dismissed it on that ground without allowing the plaintiffs an opportunity to bring the persons concerned on record; that the judgment of the learned lower appellate Court was not really a judgment of reversal, because while setting aside the judgment and decree of the learned trial Court and holding that the transaction in question was not benami, the learned appellate Court failed to take into consideration that the parties concerned were husband and wife, as was done by the learned trial Court. That at any event, the entire suit should not have been dismissed because the plaintiffs having their legitimate share in the portion of the properties admittedly belonging to their late father were entitled to a declaration thereof.
14. On the other hand, Mr. Tarafdar, the learned. Advocate, appearing on behalf of the respondents, contended that the learned lower appellate Court having decided on facts that the impugned transaction was not benami in character, no relief was left open to the appellants at this stage and the appeal is liable to be dismissed outright.
15. After hearing both the parties at length, I am of the view that the contentions raised by Mr. Roy Chowdhury are practicallywithout any substance and are liable to be rejected.
16. It may be recalled at the outset that the main question involved in the instant suit is whether the impugned transaction, namely, the kobala dated March 27, 1957 (Ext. C) executed by Satyendra Chandra Ganguly in favour of the defendant No. 1 Chabbahan Bibi is benami in character as alleged by the plaintiffs/appellants. If the answer is in the affirmative, questions like defect of parties etc, may thereafter arise for consideration; but in case the answer is in the negative there will be an end of the whole suit and no further question will remain to be considered. This is because the plaintiffs' prayer for declaration of their share in the properties in question is based solely on their allegation that the properties were acquired by their father late Hazi Abdul Aziz in the benami of his third wife, the defendant No. 1 who is nothing but a name lender and not the real owner in respect thereof.
17. The learned trial Court, as it appears, rightly formulated the elements which are required to be considered for determination whether a particular transaction is benami or not.
18. Regarding the most important element, namely, payment of the consideration money, he found that the consideration money was paid by Hazi Abdul Aziz and not by his wife, the defendant No. 1.
19. The document in question (Ext. C) being in the custody of the defendant No. 1, the learned trial Court found that she secured possession of the same on the death of her husband in 1964.
20. Possession of the lands was also found to be with Hazi during his lifetime and subsequently with the plaintiffs.
21. On these findings, the learned trial Court decided the question of benami in favour of the plaintiffs and decreed the suit.
22. On appeal by the defendants, the learned lower appellate Court took up each and every point as decided by the learned trial Court for consideration and negatived each of the findings.
23. He found that the consideration money was paid by the defendant No. 1 herself; that the defendant No. 1 as well as her transferees were in possession of the disputed lands at all material times and that the custody of the document was also with the defendant No. 1 since her purchase.
24. He further found that Haji Abdul Aziz during his lifetime never questioned the independent title and possession of the defendant No. 1 in the disputed lands and that in the kobala (Ext. C/2) executed by him in favour of his son, the plaintiff No. 1, in respect of all his properties, he did not include the suit properties, the subject-matter of the impugned kobala, (Ext. C) standing in the name of the defendant No. 1.
25. The learned lower appellate Court, accordingly came to the conclusion that the impugned transaction was not benami in character as alleged by the plaintiffs and that the defendant No. 1 was not the name lender but the real owner of the properties covered by the kobala.
26. Ext. C, as it has already been stated, is the impugned kobala dated March 27, 1957 standing in the name of the defendant No. 1. By the kobala Ext. C(1) dated Nov. 24, 1966 she sold some of the properties covered by Ext. C to the added defendants Nos. 2, 3 and 4. She also sold some other properties to the same persons by another kobala Ext. C/4/ But the subject-matter of this kobala is the property which she acquired by a kobala dated Jan. 21, 1958. The learned lower appellate Court was in error in holding that by Ext. C/4, a part of the suit properties was sold. But that is besides the point.
27. By Ext. C/6, a kobala dated Jan. 25, 1961, the defendant No. 1, her husband Haji Abdul Aziz and some others sold certain properties acquired by them individually by independent kobalas to one Biswanath Ghosh, which includes some of the properties in suit. Similarly by another kobala dated April 2, 1957 (Ext. C/7) the defendant No. 1 and her husband sold 66 decimals of land out of some of the suit plots to one Ismail Biswas. Both Exts. C/6 and C/7 having been executed prior to the institution of the instant suit on Nov. 10, 1965, the learned lower appellate court was of the view that Biswanath Ghosh andIsmail Biswas should have been made parties thereto and in their absence the suit was bad for defect of the parties and was not maintainable,
28. However, as it appears, the learned lower appellate court did not actually dismiss the suit on the ground of defect of parties. The suit was dismissed by him mainly on the ground that the plaintiffs had failed to prove by dependable evidence that the transaction in question was benami in character as alleged and that as the properties were actually purchased by the defendant No. 1 with her own money and she being also in possession thereof, the plaintiffs did not acquire any title or interest in respect thereof and consequently were entitled to no relief. In that view of the matter, the objection regarding defect of parties loses all its edge.
29. It is well-settled that findings regarding banami are mainly questions of fact which cannot be reagitated in a second appeal. This was also conceded by Mr. Roy Chowdhury in his usual fairness. He, however, submitted that the learned lower appellate court having found that the transaction in question was not benami in character without consideration of the material facts and circumstances on which the trial court based its decision, the findings of fact so made by the learned lower appellate court cannot be binding in second appeal. In support of this contention, Mr. Roy Chowdhury relied on the Division Bench decision of this Court in A.H. Md. Ismail v. Sachidananda Bhattacharjee, (1936) 40 Cal WN 769.
30. That this contention of Mr. Roy Chowdhury is not correct, will clearly appear from the judgment of the learned lower appellate court. As already pointed out, he dealt with each and every point decided by the learned trial court, namely, payment of consideration; possession of the properties; custody of the document etc. in their proper perspective and on the basis of evidence on record negatived the findings of the learned trial court on each of these points. Consequently, it cannot be said that the learned lower appellate court recorded his findings without consideration of the material facts and circumstances on which the learned trial court based its decision. That being so,the finding of fact by the learned lower appellate court that the transaction in question is not benami in character, cannot be reagitated before this Court in second appeal.
31. On a perusal of the judgment of the learned lower appellate court, I am also of the view that his findings are not only based on the materials on records but on sound reasoning as well. Indisputably, the onus to prove that the transaction in question was benami in character, was upon the plaintiffs/appellants which they failed to discharge by any dependable evidence as rightly found by the learned lower appellate court. He also took into consideration the fact that in the revisional settlement records the suit properties were recorded in the name of the defendant No. 1 and an attempt by the plaintiffs to have the records corrected under the provisions of the West Bengal Estates Acquisition Act proved to be abortive.
32. Regarding custody of the document in question, he rightly found that at all material times it was in the custody of the defendant No. 1 and that she did not get hold of the same on the death of her husband. While coming to this conclusion he rightly pointed out that the parent document by which the properties were initially purchased by Hazi Abdul Aziz and Satyendra Chandra Ganguly (Ext. 3) was in possession of the plaintiffs and not in the possession of the defendant No. 1.
33. The last contention of Mr. Roy Chowdhury that the suit should not have been dismissed outright inasmuch as the plaintiffs had their legitimate share in the portion thereof admittedly belonging to their father, is misconceived and without any foundation. This is because the suit is only in respect of the properties which the defendant No. 1 purchased from Satyendra Chandra Ganguly by the kobala, Ext. C. It may be recalled that by the kobala Ext. 3 dated Nov. 17, 1943 Hazi Abdul Aziz and Satyendra Chandra Ganguly purchased 5 annas and 4 pies share in the properties covered by the suit khatians. Indisputably Hazi Abdul Aziz and Satyendra Chandra Ganguly each had a moiety share in respect thereof and by the kobala Ext. C, Satyendra Chandra Ganguly transferred his said moiety share to thedefendant No. 1 and it is only the said properties conveyed to defendant No. 1 by Ext. C. which are the subject-matter of the present suit. The other half remained with Hazi Abdul Aziz in which the plaintiffs undoubtedly have their 14 annas share and the defendant No. 1, 2 annas share. But that is not the subject-matter of this suit.
34. In the above view of the matter, the plaintiffs having failed to establish that the kobala Ext. C is a benami document, their title to the suit properties cannot be declared and, accordingly, the learned lower appellate court was quite justified in dismissing the suit.
35. The appeal as such, has no merits in it and is liable to be dismissed.
36. The appeal accordingly fails and is dismissed on contest against the respondents with costs and the impugned judgment and decree of the learned lower appellate court are hereby affirmed.
37. All interim orders, if any, are vacated.
38. The records be remitted to the learned court below as early as possible.