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Dhirendra Nath Das Vs. Indra Chandra Kisriwala and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Reported inAIR1939Cal578
AppellantDhirendra Nath Das
Respondentindra Chandra Kisriwala and ors.
Cases ReferredMhammad Ali Mohammad Khan v. Mt. Bismillah Begam
Excerpt:
- .....the suit was one commenced under order 21, rule 63, civil p.c., for establishing his title to the property in suit. defendant 1 is the decree-holder, who obtained a money decree against defendants 2-5. this decree was put into execution in money execution case no. 30 of 1935 of the court of the 1st subordinate judge of howrah and the property in suit was attached. the plaintiff thereupon preferred a claim under order 21, rule 58, civil p.c., but that claim was refused, and following the adverse decision in the claim proceeding the present suit was started. the plaintiff's case in substance is that the property in suit belonged to debendra nath sadhukhan, defendant 5, who was one of the judgment-debtors, and he made a gift of it in favour of his wife by a document which was executed on.....
Judgment:

B.K. Mukherjea, J.

1. This appeal is on behalf of the plaintiff and the suit was one commenced under Order 21, Rule 63, Civil P.C., for establishing his title to the property in suit. Defendant 1 is the decree-holder, who obtained a money decree against defendants 2-5. This decree was put into execution in Money Execution Case No. 30 of 1935 of the Court of the 1st Subordinate Judge of Howrah and the property in suit was attached. The plaintiff thereupon preferred a claim under Order 21, Rule 58, Civil P.C., but that claim was refused, and following the adverse decision in the claim proceeding the present suit was started. The plaintiff's case in substance is that the property in suit belonged to Debendra Nath Sadhukhan, defendant 5, who was one of the judgment-debtors, and he made a gift of it in favour of his wife by a document which was executed on 3rd May 1933. The plaintiff purchased the property by a kobala from Mrinalini on 9th May 1935, for a consideration of Rs. 2000 only and was in possession of it since the date of his purchase.

2. The suit was contested by defendant 1 alone and his contention was that the property was the joint family property of the Shadukhans of which Debendra was a member and that the deed of gift as well as the subsequent kobala in favour of the plaintiff were fictitious transactions entered into for the purpose of shielding the property from the creditors. Both the Courts below have accepted the defence version and have dismissed the plaintiff's suit. It is against these concurrent decrees of dismissal that the present second appeal has been preferred. Mr. Bose, who appears for the appellant, has raised a twofold contention before us. In the first place he has argued that the Courts below in arriving at the decision against the plaintiff had misplaced the onus. In the second place he has contended that the findings arrived at by the lower Appellate Court are not sufficient for the purpose of dismissing the plaintiff's suit.

3. Now so far as the first point is concerned, Mr. Bose's argument is that as the plain, tiff is the ostensible purchaser in whose name the kobala admittedly stands, he must be presumed to be the real owner of the property and the burden would be upon the defendants to show the contrary. I do not think that this contention can be sustained. The plaintiff was the unsuccessful claimant in the claim proceeding and an order was made adversely to him. That order is conclusive unless it is displaced by a declaratory suit brought under the provisions of Order 21, Rule 63, Civil P.C., and the onus is certainly upon the claimant to show that he has a right which was denied by the order: Mhammad Ali Mohammad Khan v. Mt. Bismillah Begam 0049/1930 . As Sir Law-rence Jenkins put it in Jamahar Kumari v. Askaran Boid (1916) 3 A.I.R. Cal. 666, the burden could not be discharged merely by pointing to the innocent appearance of the instruments under which the plaintiff claims. He must prove that they are as good as they look and it is not for the defendant to make out that they are collusive. Mr. Bose lays stress upon the decision of the Judicial Committee which is to be found reported in V.E. A.R.M. Firm v. Maung Ba. Kyin . In our opinion, this decision cannot be read as laying down any contrary proposition of law regarding the ouns in such cases. In this case, the plaintiff was not only the ostensible owner of the property under a registered deed but out of the consideration of Rs. 20,000 the vendor, who was a debtor to the father of one of the purchasers, was given a credit for the sum of Rs. 17,000 which he owed to the latter. The only question raised was whether the balance of Rs. 3000 which was alleged to have been paid in cash, was really paid or not and their Lordships held that even though the evidence regarding the payment of this Rs. 3000 could not be considered satisfactory the consideration that was undoubtedly present, namely Rs. 17,000, was quite adequate having regard to the total value of the property and even if Rs. 3000 was not paid that was not enough for the purpose of drawing the conclusion that the sale was fraudulent. In fact, Viscount Dunedin was himself a party to the judgment in the later decision pronounced by the Judicial Committee which is to be found reported in Mhammad Ali Mohammad Khan v. Mt. Bismillah Begam 0049/1930 , referred to above, and we do not think that their Lordships of the Judicial Committee did intend to say anything different from what was stated in the earlier case. The first contention of Mr. Bose therefore must be overruled.

4. Now, on the second point, the question raised by Mr. Bose is undoubtedly a question of fact. He has not been able to point out any misdirection or any error of law committed by the lower Appellate Court. His argument in substance is that although there might be a motive for executing this benami document, nevertheless, on the questions of passing of consideration and possession of the property the lower Appellate Court has not considered the material facts which appear in evidence. On the question of consideration Mr. Bose has drawn our attention to the finding of the lower Appellate Court recorded at p. 56 of the paper book, according to which a cheque given by the plaintiff was, as a matter of fact, honoured. The facts relevant to this matter stand as follows: The plaintiff drew a bearer cheque on the Allahabad Bank in the name of Mrinalini on 29th April 1935. The sale deed was actually executed much later, on 9th May 1935 and it was presented for registration on the day following. Before the Registrar the cheque was undoubtedly handed over to Mrinalini. The plaintiff's case is that the cheque was subsequently presented to the Shambazar branch of the Central Bank by Tustu, the son of Mrinalini, and this amount was transferred to his credit. In support of this version the plaintiff has examined an officer of the Allahabad Bank and also the son of Mrinalini who is said to have got the money transferred to his own account with the Shambazar Branch of the Central Bank of India.

5. The evidence of the clerk undoubtedly shows that the cheque was honoured and it was debited against the plaintiff. The lower Appellate Court pointed out that had the plaintiff produced his pass-book it could have been proved as to where the money did eventually go. Speaking for myself, I am not inclined to attach much value to this fact. But the other fact upon which the lower Appellate Court relies seems to me to be very much material. The whole story of the plaintiff was that it was Tustu, the son of Mrinalini, who cashed the cheque or rather had the money transferred to his own account with the Shambazar Branch of the Central Bank. He says in his evidence that he has got his pass-book and he has got the counterfoils of the cheques also. These he did not produce and no explanation is forthcoming for the non-production of these very material papers. For the purpose of showing that he really got the money entered in his own account, the pass-book would have been the best evidence possible and although he was in possession of the pass-book he did not care to produce it. There is no other evidence to show that Mrinalini actually got the money and under these circumstances it seems to me that the lower Appellate Court was not wrong when it came to the conclusion that, as a matter of fact, only a show of payment was made but really no consideration passed in respect of the transaction. This is undoubtedly fortified by some suspicious circumstances to which reference was made by both the Courts below in their judgments. But as they are questions of fact it is not necessary for me to refer to them in detail.

6. As regards the possession of the property Mr. Bose has drawn our attention to the fact that there was mutation in the name of the plaintiff in the Municipal Register soon after the transaction took place. He has also drawn our attention to the fact that rents were realized by his client and that he did effect some repairs on the structures that stood on the land. On the question of realization of the rent the finding of the trial Court is undoubtedly against him and the trial Court has pronounced the counterfoils produced by the plaintiff to be forgeries. The mason also was disbelieved by both the Courts below. It is true that the plaintiff had got his name mutated but if really the intention was to secrete the property and place it beyond the reach of the creditors, the show must be kept up and this was not in any way inconsistent with the theory of benami which the defendant has put forward. I do not think that it can be said in this case, having regard to the findings concurrently arrived at by both the Courts below, that there was any error of law which vitiated the judgments. Under these circumstances we agree with the lower Appellate Court and dismiss the appeal. There will be no order as to costs in this appeal.

Latifur Rahman, J.

7. I agree.


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