1. The plaintiff-appellant sued the defendant company for damages for having demolished a building, a 19/80th share of which is alleged by the plaintiff to have been purchased by him from one Ram Chandra Banerjee in the name of one Bepin Behari Haldar on the 10th December 1907. The defendants also purchased the same share from the heirs of Ram Chandra on the 22nd September 1908. They also purchased the remaining shares from the other co-sharers and dismantled the whole building in October 1908.
2. The defence was that the alleged purchase by the plaintiff from Ram Chandra was a colourable and lienami transaction and the plaintiff had not acquired any title under it.
3. The Court of first instance placed the burden of proving the lienami upon the defendants, and decreed the suit, but that decree was reversed by the District Judge on appeal, and the decree of the District Judge was affirmed on second appeal by Mr. Justice Coxe. The plaintiff has preferred this appeal under the Letters Patent.
4. The learned District Judge was of opinion that the Munsif had wrongly placed the onus of proving benami upon the defendants. He held that 'the burden was clearly upon the plaintiff to prove the reality of the sale to him and the fact that consideration had passed from him to Ram Chandra,' that he had failed to prove the same, and came to the conclusion that the sale to the plaintiff was a colourable and benami transaction.
5. Now, the plaintiff claimed the property under a registered conveyance from Ram Chandra, through whom the defendants also claimed it. The execution of the kobala by Ram Chandra has been proved and the kobala has been produced by the plaintiff. Apparently a valid transfer was effected by the kobala, and the onus, therefore, lay upon the defendants to show that it was not a rsal transfer.
6. It is contended on behalf of the defendants that the principle is inapplicable to a case where the defendant in possession sets up the plea of benami. No doubt the fact that the defendants are in possession is in their favour, and is an important element to be taken into consideration in determining whether the transaction is benami. But there is no presumption in favour of benami even where the defendant is in possession. In Uman Parshad v. Gandharp Singh 15 C. 20 at p. 23 : 14 I.A. 127 : 11 Ind. Jur. 474 : 5 Sar. P.C.J. 71 : Rafique and Jackson P.C. No. 98, where the plaintiff sought to recover possession on the strength of certain deeds against the defendants in possession who pleaded that the deeds were benami, the Judicial Committee observed: it is familiar to us all that the system of putting property benami is so extremely common in India that the mere fact of a deed being executed in proper form, and apparently effecting a valid transfer to another, is not as good evidence of a real transfer as it would be in other countries, and even a slight quantity of evidence to show that it was a sham transaction will suffice for the purpose. Still such a transfer cannot be considered as nothing. The person who impugns its apparent character must show something or other to establish that it is a benami or sham transaction.'
7. No doubt a plaintiff has to prove his title where the defendant in possession pleads that he is only a benamidar, but he shows a prima facie title by producing and proving his conveyance, which usually contains a recital of the receipt of consideration. In the present case also, the kobala contains an admission by the vendor (Ram Chandra) of the receipt of consideration. That admission is evidence, though not conclusive, against the defendants Foolee Bibee v. Bessirtidi Mirdha 12 W.R. (F.B.) 25.. The learned District Judge, however, is of opinion that this case should be distinguished from those cases in which one of the parties to a deed denies the truth of a statement made as to the passing of the consideration;' and that the issue of benami or not benami turns principally on the question whether the plaintiff has shown that he paid the stated consideration to Ram Chandra.' But the defendants stand in the same position as Bam Chandra himself through whom they claim, and the non-payment of consideration is a matter to be taken into account in determining whether the kobala was b-nami. The onus, therefore, is upon the defendants to show the non-payment of Consideration.
8. It is contended on behalf of the defendants that the learned District Judge has considered the question of possession, and upon a consideration of the whole evidence has come to the conclusion that the kobala was a benami one, and the same view has been taken by Coxe, J. But it seems to us that the conclusion arrived at has been influenced by the view taken by the District Judge as to the incidence of the burden of proof. The question of possession, no doubt, is to be taken into consideration as well as other circumstances and probabilities in deciding whether a kobala is a real and bona fide or merely a benami transaction, but the learned District Judge appears to have arrived at the conclusion that the kobala was benami by placing the onus upon the plaintiff of proving the reality of the transaction and the passing of the consideration.
9. The judgment of Coxe, J., and the decree of the District Judge are accordingly set aside, and the case sent back to the lower Appellate Court for a re-hearing of the appeal according to law. Costs to abide the result.
10. The plaintiff complains before us, that some important evidence which he wanted to adduce for proving payment of consideration to his vendor had been excluded by the Courts below.
11. It is stated in the kobala of the plaintiff that the consideration was paid by a currency note for rupees one thousand, the number of which was mentioned in it. The plaintiff sta-ted in his deposition 'that he drew the note from the Commercial Bank and paid it over to his vendor, Bam Chandra. After the close of evidence on both sides he applied to the Court to be allowed to adduce further evidence, but the application having been disallowed, the plaintiff applied to withdraw from the suit, with liberty to bring a fresh suit. The application was granted by the Court, but the order was set aside on revision by the Court, and the Munsif was directed to take up the case at the stage at which the order for withdrawal was made. The plaintiff then applied for summons upon the Liquidator of the Commercial Bank and the Comptroller of Paper Currency to produce certain books of their offices and it appears that certain clerks of the said office were present in Court with the books required. The defendants objected to the reception of further evidence, and the Munsif was of opinion that having regard, to the order of the High Court the plaintiff could not be allowed to adduce further evidence. We think that under the circumstances the plaintiff ought to have been allowed to tender the books in evidence and we direct the lower Appellate Court to do so. The defendants also will be entitled to adduce evidence relevant to the question.