P.N. Mookerjee, J.
1. The appellant before us was defendant No. 1 in a suit under Order 21, Rule 63 of the Code of Civil Procedure. The suit has been decreed in part by the trial court and from the part decree the present appeal has been filed by the defendant No. 1 appellant.
2. The suit arose under the following circumstances :
3. In Money Suit No. 22 of 1948 of the Court of the Subordinate Judge of Berhampore, the plaintiff respondent, the Berhampore Bank Ltd. (now represented by the Court Liquidator as its Official Liquidator) claimed a sum of Rs. 73,420-10-3 from the appellant's husband Syed Sakhawat Hossain (who is respondent No. 2 in this appeal and who was defendant No. 2 in the court below) and their son Syed Golam Kader and, on certain allegations, attached before judgment the disputed properties (which are set out in Schedules Ka and Kha of the present plaint). To that attachment, the appellant objected & filed a claim which was registered as Miscellaneous Case No. 33 of 1948) on the averment inter alia that the attached properties belonged to her and were in her possession in her own right at all relevant times. That claim was allowed by the court and the attached properties were directed to be released from attachment upon a finding of possession and prima facie title in favour of the appellant, the Court refusing to go into the question, raised by the respondent Bank that the appellant was the benamdar of her husband, to whom the suit properties belonged, upon the view that the question of benami could not be gone into in the claim proceeding, the Bank's remedy, if any, lying in a suit under Order 21, Rule 63 of the Code of Civil Procedure. Thereupon, the present suit was filed by the respondent Bank.
4. In the suit, the appellant was made the principal defendant (No. 1) and the appellant's husband Syed Sakhawat Hossain, pro forma defendant (No. 2), and the prayer was inter alia for a declaration that the disputed properties were the latter's properties and as such liable to attachment for recovery of debts, due from him, the appellant having no title thereto or possession but being merely her husband's benamdar in respect thereof, and for the setting aside of the order in the claim case, directing release of the said properties from attachment. The suit was contested by the appellant who set up her title and possession in the disputed properties and denied the Bank's allegation of benami. The appellant's husband who was defendant No. 2 in the suit as stated above, did not enter appearance.
5. Eventually as we have stated hereinbeforethe suit was decreed by the learned SubordinateJudge in part. He held inter alia that the appellant was the benamdar of her husband in respectof the disputed Ka schedule property which wasowned and possessed by him and set aside the decision in the claim case directing release of the saidproperty from attachment, and dismissed the appellant's claim, so far as that property was concerneddeclaring the plaintiff Bank's right to attach thesame before judgment in Money Suit No. 22 of 1948aforesaid. With regard to the Kha Schedule property the suit was dismissed upon the finding thatin regard to its half share, claimed by the wife defendant No. 1 and comprised within the subjectmatter of the present suit and the claim proceedingand the release order, was the owner (sic). Thedecree of the learned Subordinate Judge with regard to the 'ka' schedule property is the subject-matter of the present appeal which has been filed bythe wife defendant No. 1 and we are concernedhere only with that property, the trial court's decision, regarding the Kha schedule property, havingbeen accepted by both parties.
6. The appeal has been fully and fairly argued before us. The appellant's case was presented by Dr. Sen Gupta who, while not minimising the defects in his client's case, submitted with some force that, on the materials as they stood, the appellant was entitled to succeed. Mr. Gupta also appearing for the plaintiff-respondent, conceded with his usual fairness that the case had its difficulties but he submitted, -- and submitted with some confidence, -- that, taking an overall picture of the entire evidence, it could not be disputed that his client had succeeded in establishing that the appellant was merely a benamdar for her husband in respect of the disputed Ka Schedule property.
7. Mr. Gupta did not dispute that the onus to prove benami was on the plaintiff. He did not also contest Dr. Sen Gupta's argument that the Court's decision must rest not on suspicion and surmise but on legal evidence. He maintained, however, that the Court is entitled to base its decision on both actual and circumstantial evidence and it is free to take into consideration the circumstances of the case and view the evidence in the light and context of those circumstances and its inference, deduced from such examination of the materials before it cannot be rejected. Indeed, Mr. Gupta contended that, in these cases of benami, while the law of onus, as stated above, will have to be borne in mind and while the Court should not indulge in suspicion and surmise, it is entitled -- and that, indeed, is its duty -- to take into consideration the whole bundle of facts and circumstances, as proved or disclosed in the case, to form its proper conclusion and it will not do to examine merely the evidence, adduced by the party, pleading benami, or, for the matter of that by one or other of the parties only, and to say from that evidence that the onus has or has not been discharged and benami has or has not been proved. That will be deciding the case on a part of the evidence, disregarding the rest, and so it will not be a proper decision in law. The Court will have to decide the case (including the question of discharge or non-discharge of onus) on the whole evidence and in the light of all the relevant circumstances and taking an overall picture of the entire evidence and either party will be free to rely on his evidence and the evidence of his adversary so far as it supports his case.
8. We do not think, -- and Dr. Sen Gupta also did not contend, -- that the law is otherwise and we would, therefore, approach the case and decide the appeal from the above point of view. We will, if course, in the above connection, have to examine and give due consideration to the usual aspects which demand attention in cases of benami, namely, source of the consideration money, motive, possession of the property and custody of the title deed but the decision must be made on the entire evidence and not merely on a part of it. It is fair also to observe here, -- though that is not material for purposes of this case, -- that the above are not exhaustive of the circumstances, on which the final conclusion of the Court must necessarily be based, nor is it to be expected that, in all cases of benami, all these circumstances will be helpful in finding out the real position. Sometimes the final conclusion may have to be made on other considerations and, (sic) often than not, some only of these elements may be of assistance and some may predominate and serve as the determining factor and furnish the clue to the real situation.
9. In the course of argument, reference was made by Dr. Sen Gupta to the decision of the Privy Council in Ma Ngwe Naing v. Maung Tha Maung, (sic) Cal WN 513: (AIR 1929 PC 55) (A) and by Mr. Gupta to Bilas Kunwar v. Desraj Ranjit Singh, 42 Ind App 202: (AIR 1915 PC 96) (B), as laying down the law, applicable to and governing cases of benami. Reference may also be made in the present context to Md. Mahbub AH Khan v. Bharat (sic)du 23 Cal WN 321: (AIR 1918 PC 137) (C) and a word of explanation may be added with regard to Lakshmiah Chetti v. Kothandarama Pillai , namely, that it speaks only of a presumption of benami as opposed to gift when the consideration has emanated from the husband but the document stands in the name of the wife, with a caution that more should not be read or imported into that decision. It is unnecessary to say anything more on the above decisions, as they do not purport to lay down any principle, different from or not covered by our statement of the law, as made above and accepted by both parties. Indeed, there is no dispute and the parties do not differ on principles, relevant for purposes of our present enquiry, but the point that arises is how to apply them and what is the effect of their application or, in other words, what conclusion should follow in the present case in the (sic)ght of those principles.
10. Having stated the law, let us now apply it to the facts before us in the light of the evidence on record and the circumstances of this case. As usual in these cases, where the question is whether the wife is the real owner or the benamdar for her husband, possession of the property or custody of the title deed seldom gives any clue to the real position. There is also no clear evidence of motive in the present case for creation of the benami, but the absense of motive, it must be remembered, does not necessarily exclude benami. Naturally, then, source of the consideration money assumes paramount importance and the material enquiry seems to be as to who supplied the money for the acquisition of the disputed land and the construction of the building thereon. On this point the plaintiff has examined some witnesses including one of the vendors of 'Ka' schedule land and some masons who are alleged to have worked in the construction of the building thereon and also an alleged supplier of materials for that construction. But their evidence is not free from ambiguity. It proves, at the most, that they got their payment from the husband who apparently supervised the purchase of the land, placed the orders for materials and supervised the construction of the building and that the supply of materials was made in his name. That, however, does not necessarily prove that the property was his, as it is equally consistent with the wife's ownership, the husband merely acting for her in the above matters. The plaintiff has also put in evidence the husband's letter, Ext. 1, asking for electric connection in the above building, wherein he describes it as his (that is, the husband's) house and the electric bills (Vide Ext. 2) which were made in his (that is the husband's) name. These apparently support the plaintiffs case of benami, but, if they had stood alone, unaided by circumstances, to which we shall presently refer, we would have hesitated to find benami merely on the strength of that evidence which was at best evidence of dealing with the property. It is, however, clear from the evidence, adduced by the defendant herself, and the circumstances which have been proved beyond doubt by the evidence on record that the 'Ka' schedule property was acquired not by the wife, defendant No. 1, but by the husband who was impleaded as defendant No. 2. To that evidence and to those circumstances we shall at once turn.
11. It was not disputed before us that the purchase of the 'Ka' schedule land was for the erection of the building thereon and the person who erected the building was the purchaser and owner of the land and also the owner of the building. In the instant case before us, even according to the defendant's evidence, at least Rs. 7,000/- to Rs. 8,000/- was spent for the construction of the house. On the evidence on record, it is impossible to find that that amount could have been supplied by the wife, defendant No. 1. On the other hand, the probabilities indicate that the money came from the husband, defendant No. 2. The defendant No. 1 made the definite case that she spent the money from funds, obtained by her from her father and from the husband as prompt dower. It is, however, impossible to accept the first part of the story, namely, that Rs. 5000/- or any substantial cash amount was obtained by the defendant No. 1 from her father. The amount is said to have been paid by the father to defendant No. 1 when she was coming to her husband's house for the first time after her marriage. The payment is alleged to have been made to her when she was a girl of about 16 years without any intimation to the husband and we are asked to believe that it was kept secret from the husband until the Kobala (Ext. A) which was in 1932, that is, about 20 years later or until the construction of the building which was still later. The defendant No. 1's father, again, as Ext. G and D. W. No. 7's evidence show, was not in very affluent circumstances and he had to sell many properties for liquidating debts. Defendant No. 1 has also alleged receipt of various other sums from the father and from the brother who was examined as D. W. 7. The evidence, however, in support of the story is extremely unconvincing. According to D. W. 7, there are accounts of the Estate of the Defendant No. 1's father but these accounts were not produced. Nor were the accounts which were said to have been kept by this witness of the expenses of construction of the building and of the supply of money by defendant No. 1 produced in Court.
12. From what we have said above it is fairly clear that the defendant No. 1 had not the funds for the construction of the building and, when this is considered along with the admitted position that, at or about the relevant time, her husband was a busy lawyer, having naturally a decent income, and that he was living in a rented house' and was apparently, in need of a house of his own, the inference can fairly be made that the disputed 'Ka' schedule property including the building was the husband's and not the wife's.
13. It is to be observed also, that the husband (defendant No. 2) did not appear in the suit and was plainly avoiding service of summons. He did not also come forward to support the wife's title and disclaim owner-ship of the disputed 'Ka' schedule property. The husband and the wife are living together and in perfect amity. The husband is evidently behind the wife in resisting the plaintiff's claim, but he did not take oath and depose in Court. It was pointed out to us on behalf of the appellant that the husband was cited as a witness by the wife, but, beyond filing the citation application, the wife (defendant No. 1) took absolutely no steps in the matter in spite of the Court's granting her prayer for issue of summons upon the witnesses, as prayed for by her. That makes her case worse.
14. In the light of the foregoing discussion, a Court of fact is entitled to hold that the disputed 'Ka' schedule property was the husband defendant No. 2's and the wife, defendant No. 1, in whose name the relative Kobala, Ext. A, stands, was merely his benamdar. That is what the learned Subordinate Judge has done and we have no reason to differ from him in his said conclusion.
15. Dr. Sen Gupta, in the course of his arguments, drew our attention to some preliminary remarks of the learned Subordinate Judge and contended that his entire judgment was coloured by a wrong approach and largely influenced by suspicion and surmise, so often condemned by the Judicial Committee, but we do not think that the criticism is justified. Of the remarks pointed out, none appears to be basically wrong, although one or, two may not have been happily worded of properly expressed and may not have been put in pro-per sequence. We do not think that the learned Subordinate Judge really suffered from a wrong approach or led himself to be unduly influenced by suspicion and surmise. His judgment, on the whole is based on the legal evidence in the case, the sub-stance of which we have endeavoured to set out above, in the context of relevant circumstances. His inference from that evidence as we have shown above, is a proper inference, amply justified by the materials on record and quite within the legitimate scope and powers of a Court, and we have not the slightest justification for interfering with the same.
16. A minor point was raised by Dr. Sen Guptathat, in these proceedings, the learned SubordinatesJudge was not justified in declaring the right of the plaintiff to attach before judgment the disputed 'Ka' schedule property. The argument may be technically correct, if it means, as apprehended by Dr. Sen Gupta, that, by this declaration, the learnedSubordinate Judge was affirming the legality, propriety and validity of the attachment before judgment. We do not think, however, that, in the con-text, in which that declaration was made, the abovemeaning can be attached to it. Really, what wasintended by the learned Subordinate Judge appearsto be that, as the property was defendant No. 2's,the plaintiff was entitled to attach it as his (defendant No. 2's) property. That also follows from the declaration, properly made, that defendant No. 1was defendant No. 2's benamdar for that propertyand the dismissal of her claim, also properly, madeThe effect would, necessarily, be revival of theattachment before judgment subject, of course, tothe remedies, if any, of the defendants of the MoneySuit to have it cancelled or set aside in accordancewith law. We do not think that anything more wasmeant by the learned Subordinate Judge by thedeclaration, to which exception has been taken byDr. Sen Gupta, as stated above.
17. In the above view, we dismiss this appealwith costs, the hearing fee being assessed at 30 goldmohurs.
P.K. Sarkar, J.
18. I agree.