Chittatosh Mookerjee, J.
1. This appeal is at the instance of the plaintiff whose suit, inter alia, for declaration that he was a real monthly tenant under the respondent No. 1 according to the Hindi calendar in respect of room in the first floor of 6, Banstala Gali and for permanent injunction has been dismissed by the learned Judge, 10th Bench, City Civil Court at Calcutta.
2. Admittedly, one Nemkumar Raniwalla, was a tenant under the defendant No. 1 in respect of the said room in the first floor of the premises No. 6, Banstala Gali. It can no longer be disputed that before the commencement of the West Bengal Premises Tenancy Act, 1956 the said Nemkumar Rani-walla had created a sub-tenancy in respect of the suit room in the name of Hariram Agarwalla. who was a son of the original plaintiff, Radheshyam Agarwalla. Hariram had made an application under Section 16 (3) of the West Bengal Premises Tenancy Act and on 25th May, 1957 the Rent Controller, Calcutta had declared Hariram as a direct tenant under the defendant No. 1 at a rent of Rs. 30/- per month according to Hindi calendar. The defendant No. 1 had granted receipts in the name of Hariram Agarwalla up to Phalgoon 2022 S.Y. According to the plaintiff, the defendant No. 1 did not grant any receipt from Chaitra 2022 S.Y. to Jaistha 2023 S.Y. on various pretexts. After the defendant No. 1 had refused to accept the rent remitted by the plaintiff by money-order, Radheshyam Agarwalla claiming to hold the tenancy in the name of Hariram began to deposit rents to the credit of the defendant No. 1 in the office of the Rent Controller. The defendant No. 1 did not withdraw the said rents and he filed in the City Civil Court at Calcutta Ejectment Suit No. 825 of 1967 against Harintm Agarwalla for evicting him from the suit premises.
3. On 18th July, 1967 the plaintiff Radheshyam had filed an application for permission to contest the said Ejectment Suit No. 825 of 1967 inter alia, on the ground that he was the real tenant of the suit premises. He had also made an application under Section 17 (2) of the West Bengal Premises Tenancy Act alleging that the rent was Rs. 30/- and not Rs. 33/- per month. On 21st Sept., 1967 the learned Judge of the City Civil Court rejected the plaintiff, Radheshyam's prayer for impleading him in the said ejectment suit, inter alia, holding that in a suit for recovery of possession against a tenant, the questions of title and benami could not be decided. He further held that Radheshyam had miserably failed to show any prima facie document regarding his alleged tenancy and it was open to him to institute a proper suit for declaration of his tenancy right and other consequential reliefs. The learned Judge, 4th Bench, City Civil Court by his subsequent order dated 28th Sept., 1967 had also rejected Radheshyam's petition under Section 17 (2) of the West Bengal Premises Tenancy Act. Thereafter, Hariram, who was the defendant in the said ejectment suit, appeared and on 16th Nov., 1967 obtained leave from the Court to contest the said ejectment suit. He had also filed (sic) petition under Section 17 (2) of the West Bengal Premises Tenancy Act and also under Ordinance V of 1967. Hariram had filed his written statement but on 4th June, 1968 his petition under Section 17 (2) was dismissed (sic) default. On 25th July, 1968 he had obtained adjournment of the peremptory hearing of the suit. In the meantime, on 24th Aug., 1968 the plaintiff, Radheshyam, instituted the instant suit, inter alia, for declaring that his son. Hariram, the defendant No. 2, was his benamidar and that the plaintiff was the real monthly tenant in respect of the suit premises and for further declaration that the decree passed in the aforesaid Ejectment Suit No. 825 of 1967 was not binding or executable against the plaintiff. He also prayed for permanent injunction to restrain the defendants 1 and 2 from proceeding with the said ejectment suit and also for restraining them from interfering with the plaintiff's possession of the suit premises.
4. After the ad interim order obtained by the plaintiff, Radheshyam, was modified, we understand that the Ejectment Suit No. 825 of 1967 brought by Maharaj Bahadur Singh was ex parte decreed against Hariram Agarwalla but Maharaj Bahadur Singh was restrained from executing the said ejectment decree till the disposal of the present case.
5. The defendant No, 1 alone contested the suit brought by Radheshyam, inter alia, denying that the latter was the real tenant and that Hariram was his benamdar. He also denied the allegations of collusion and conspiracy himself and Hariram Agarwalla, who had been joined as defendant No. 2 in the said suit. Hariram did not appear or contest. The learned Judge, 10th Bench, City Civil Court, as already stated, dismissed the suit brought by Radheshyam Agarwalla. Radheshyam having died, his heirs and legal representatives were substituted in his place.
6. Two questions arise for decision in the present appeal. In the first place whether or not Hariram Agarwalla was a benamdar of his father, Radheshyam Agarwalla, and whether the latter was the real tenant of the disputed room. Even if Radheshyam succeeds in establishing that he was holding the said tenancy in the benami of his son, Hariram, he must further prove that his son, Hariram Agarwalla acted against the interest of his father, Radheshyam and had colluded with his landlord and, therefore, the ejectment decree obtained by the defendant No. 1 against the defendant No. 2, was not binding upon the plaintiff, Radheshyam Agarwalla.
7. Undisputedly, the burden of showing that the defendant No. 2, Hariram Agarwalla, was a benamdar of his father, the plaintiff, Radheshyam Agarwalla, and Radheshyam was the real tenant of the disputed room rested upon the plaintiff. Mr. Mitter, learned advocate for the appellant, has submitted that benami transactions being very common in India, even slight quantity of evidence may be sufficient to show that a transaction was a sham one. But, Mookerjee and Chotzner, JJ., in Bhubanmohini Dasi v. Kumudbala Dasi, (1924) 28 Cal WN 131 : (AIR 1924 Cal 467), upon which Mr. Mitter relied, pointed out that the decision of the Court in these class of cases should not rest on suspicion but upon legal grounds established by legal testimony. Our attention has been also drawn to the recent decision of the Supreme Court in Krishnanand Agnihotri v. State of M.P., : 1977CriLJ566 . Bhagwati, J., who delivered the judgment of the Court referred to the earlier decision of the Court in Jaydayal Poddar v. Mst. Bibi Hazra, : 2SCR90 , and laid down:
'The burden of showing that a particular transaction is benami and the owner is not toe real owner always rests on the person asserting it to be so and this burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami to establish circumstances unerringly and reasonably raising an inference of that fact. The essence of benami is the intention of the parties and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of the serious onus that rests on him, nor justify the acceptance of mere conjecture or surmise as a substitute for proof. It is not enough merely to show circumstances which might create suspicion, because the Court cannot decide on the basis of suspicion. It has to act on legal grounds established by evidence.'
Upon considering the pleadings and the evidence on record, we agree with the learned Judge of the Court below that the plaintiff has failed to prove his case that his son, Hariram, the defendant No. 2, was his benamdar and the plaintiff himself was the real tenant of the disputed shop room. The plaintiff did not examine Nemkumar Rani-walla, who was previously the tenant of the first degree and had created a sub-tenancy in the name of Hariram Agarwalla. No other person came forward to corroborate the interested testimony of the plaintiff that in the name of his son Hariram who was then alleged to be a minor, he had taken the said sub-tenancy under Nemkumar Rani-walla. Radheshyam, the plaintiff, in his evidence claimed that he with his family used to reside at 31-B, Basantala Street. As there was scarcity of accommodation, he had taken the room in suit on rent. Although motive may not be decisive for determining whether a transaction is benami but when direct evidence is wanting, the reasonable probabilities and legal inferences arising from admitted and true facts, surrounding circumstances, position of parties, their relation, motive, subsequent conduct, dealing and enjoyment of the property are certainly, to be taken into consideration (see Bhubanmohini Dust's case (supra) and in Union of India v. Mokash Builders and Financiers Ltd., : 1SCR967 . In the instant case, no motive has been suggested for Radheshyam taking a tenancy in the benami of his son, Hariram. It was also somewhat improbable that Nemkumar had agreed to create a tenancy in the name of Hariram, who was allegedly minor and not in the name of Radheshyam. who was to pay the rent.
8. The Court below has also held that the plaintiff, Radheshyam, failed to satisfactorily prove that on the date of the creation of the sub-tenancy under Nemkumar Raniwalla, Hariram was still a minor. The admission form and the admission register of Sharashwat Kshitriya Vidyalaya were produced by the plaintiff to prove that Hariram Agarwalla. was aged 10 years 4 months on 5th March, 1949. The Court below has pointed out that only the signature of the plaintiff in the admission form (Ext. a (a)) was marked as an exhibit. Therefore, the said school records cannot be used as corroborative evidence of the plaintiff's interested testimony about the age of Hariram. The plaintiff's own evidence regarding the date of birth of Hariram was full of inconsistencies. According to Radheshyam, P.W. 1, Hariram was his son by his first wife, who died in the year 1939 and according to Radheshyam by his first wife he had two other sons, both younger to Hariram. Therefore, even according to Radheshyam, his elder son by his first wife could not have been born later than the year 1937.
9. Although, according to the plaintiff, his son, Hariram. had attained majority in the year 1959, in the year 1957 Hariram as sui juris had made an application under Section 16 (3) of the West Bengal Premises Tenancy Act for declaring him as a direct tenant under the defendant No. 1. The plaintiff did not adduce any evidence to corroborate his claim that he had caused the said application to be filed in the name of Hariram. Presumably, through a lawyer the said application under Section 16 (3) of the Act for declaring Hariram as a direct tenant was filed. We do not get any evidence as to the circumstances under which the plaintiff who was allegedly the real tenant had obtained declaration under Section 16 (3) not in his own name but in the name of his son, Hariram. Even after the creation of the said direct tenancy throughout rent receipts were granted in the name of Hariram, who was then living jointly with his father Radheshyam, the plaintiff. Therefore, so long both Radheshyam and Hariram occupied the suit room the possession must be deemed of the person who had legal title to the tenancy i.e. Hariram. In this case, the plaintiff, Radheshyam having failed to prove that he was the real tenant, he cannot be considered to be in possession of the room.
10. We have already remarked that the plaintiff, Radheshyam Agarwalla, neither pleaded nor proved his intention, if any, for taking a benami tenancy in the name of his son. Merely because the rent receipts granted by the defendant No. 1 and the subsequent rent control challans came from the custody of the plaintiff, we are unable to hold that the plaintiff himself used to pay rent to the defendant No. 1. After the defendant No. I had refused the money-order remittance, the plaintiff began to deposit rent in the office of the Rent Controller claiming that he was holding the tenancy In the name of his son, Hariram. After the defendant No. 1 had refused to recognise him as the real tenant, such assertion by the plaintiff was not relevant. Although the plaintiff claimed to be a businessman he admitted that he did not keep accounts of rents allegedly paid by him previously to Nemkumar Raniwalla and, thereafter, to the defendant No. 1. In the absence of any corroboration, we are not prepared to believe that the P.W. 1 himself used to pay the rent. The plaintiff claimed that his son, Hariram, at the relevant time had no income and, therefore, was not in a position to pay the rent But the plaintiff has failed to prove that he used to pay the rent, We have already observed that mere fact that the rent receipts came from his custody does not establish that the plaintiff had been paying the rent.
It. According to the plaintiff himself, Hariram used to live with him up to early of the year 2023 S.Y. and had theafter shifted to 43, Upper Chitpur Road. We can not rule out the possibility that after Hariram, who was the tenant of the suit room, had left, the plaintiff tried to grab the tenancy by setting up a plea of benami. At this stage, we may point out that the plaintiff has not given any cogent reason why his son, Hariram had become inimical towards him and bad colluded with the defendant No. 1. On the other hand, having regard to the relationship between the plaintiff and the defendant No. 2, possibility of collusion between them was much more probable.
12. We have already mentioned that after the defendant No. 1 filed Ejectment Suit No. 825 of 1967 against Hariram Agarwalla, as the sole defendant, the present plaintiff had unsuccessfully tried to contest the said suit. The Court had refused to allow him to contest the ejectment suit, inter alia, on the grounds that the complicated questions of title and benami could not be decided in the said suit and prima facie Radheshyam had failed to show his alleged tenancy, Although, as early as 21st Sept., 1967 his application for impleading him in the ejectment suit had been rejected, Radheshyam had (sic) the instant suit for declaration and injunction only on 24th Aug., 1968. In the meantime, Hariram, who was the defendant in the ejectment suit, had made belated appearance therein and had purported to file applications under Section 17 (2) of the West Bengal Premises Tenancy Act and also under the West Bengal Ordinance V of 1967. We are not prepared to accept the suggestion of the learned advocate for the appellant that thereby it was proved that there was collusion between the defendant No. 1, who was the plaintiff in the ejectment suit and Hariram. On the other hand, presumably Hariram had obtained leave to contest the ejectment suit in order to prolong the proceedings which could be only for the benefit of his father. Radheshyam, who was occupying the disputed room. We have also mentioned that Hariram had filed a written statement in the ejectment suit and had continued to take steps. Hariram had ceased to contest near till about the time the plaintiff, Radheshyam, filed the instant suit and obtained an order of temporary injunction restraining the landlord from proceeding with the ejectment suit. Therefore, we concluded that there was nothing to show that Hariram did not bona fide contest the ejectment suit against him.
13. For the foregoing reasons, we hold that Radheshyam, the plaintiff, failed to prove that he was the real tenant of the suit room and that his son, Hariram, was his benamdar in respect of the said tenancy. There was no reliable direct evidence and no legal inference or benami could be also made from the proved facts, surrounding circumstances, position of parties, their motive and subsequent conduct.
14. The plaintiff's case of benami having failed, it is no longer very much necessary to consider the other question whether or not in the previous ejectment suit the defendant No. 2, Hariram, had acted against the interest of his father, Radheshyam Mr. Mitter, learned advocate for the appellant, had fairly placed before us the decision of the Judicial Committee in Ch. Gur Narayan v. Sheolal Singh, AIR 1918 PC 140 : 46 Ind App 1 which, inter alia, laid down that the bulk of judicial opinion in India was in favour of the proposition that in a proceeding by or against the benamdar, the person beneficially entitled, is fully affected by the rules of res judicata. It is open to the latter to apply to be joined in Ihe action; but whether he is a party or not, a proceeding by or against his representative in its ultimate result is fully binding upon him. The Supreme Court in Ragho Prasad Gupta v. Krishna Poddar, : 1SCR834 , after quoting a passage from the decision in Ch. Gur Narayan's case (supra), had laid down that the decision in a proceeding brought by or against the benamdar would bind the real owner unless it is shown that the benamdar could not and did not in fact represent the interest of the real owner in that proceeding. The Supreme Court in Ragho Prasad Gupta's case (supra), after examining the facts of the case held that the appellant who claimed to be the real owner was bound by the decree passed in the earlier suit and the decree could be executed against him. Upon consideration of the evidence adduced in the present case, we have already rejected the plaintiff, Radheshyam Agarwalla's case of benami and we may also add that the plaintiff did not show that Hariram could not of did not represent the interest of the alleged real owner in the previous ejectment suit.
15. For the foregoing reasons, we dismiss this appeal without any order as to costs.
R.K. Sharma, J.
16. I agree.