1. The subject-matter of the litigation which has culminated in this appeal is a valuable trait of land in the eastern suburb of this city, which admittedly belonged at one time to the Calcutta Electric Supply Corporation. On the 21st December 1901, the Corporation executed a conveyance of the land in favour of one Baburam Saha, member of a family of Sahas, whose relationship will appear from the following of pedigree:
| | | |
Gobardhan, Biswanath, Kamalakant, Prohlad,
| | | |
| Kedar, Mathuranath, Bepin,
| | | _______|_____
| Surendra. | | |
| ________|_______Mangal. Krishna.
| | |
| Basanta. Mullick.
| | | |
Baburam. Abhoy. Sitanath. Keshub,
2. The plaintiff and the defendant are strangers to the family of Sahas, and each of them claims to have acquired exclusive title to the disputed property by purchase at an execution sale. The history of the respective titles set up by them may be briefly narrated at this stage.
3. On the 25th August 1913, Abhoy Chandra Saha, a brother of Baburam Saha, obtained a loan of Rs. 10,000 from the plaintiff, on an equitable mortgage by deposit of title-deeds of the dispnted property. In this transaction, he professed to act on behalf of himself and as Attorney for his three brothers; in substance, he hypothecated the property on the assumption* that he. and his three brothers were the only persons interested therein. The loan was not re-paid, with the result that on the 21st July 1916 ' the plaintiff sued the mortgagors to realise his dues. The suit was decreed on the 7th September 1916, and notwithstanding the objection of the present defendant, who made an ineffectual attempt to intervene in the execution proceedings, the mortgage property was told on the 10th July 1917. The mortgagee himself became the purchaser and obtained delivery of possession through Court on the 17th September 1917. He could not, however, obtain actual possession and was constrained to institute the present suit on the 28th April 1919.
4. The defendant, who, as we have seen, made a fruitless endeavour to stay the proceedings in execution of the mortgage' decree, claims to have acquired title at a sale held in execution of a decree for money obtained by one Isan Chandra Chatterjee against all the nine members of the Saha family whose names are set out on the genealogical table as descendants of the original founder, Baidyanath Saha. Chatterjee had, in his suit against the Sahas, obtained an order for attachment before judgment on the 21st December 1914. Chatterjee subsequently obtained a decree and brought the property to sale on the 21st November 1916, when the defendant became the purchaser. The position, consequently, is that the plaintiff has purchased the right, title and interest of the mortgagors under the equitable mortgage of the 25th August 1913 (that is, of the four sons of Gobardhan Saha) while the defendant has purchased the right, title and interest of the judgment-debtors in. the suit of Chatterjee (that is, of all the nine members of the Saha family). The plaintiff contends that the property purchased from the Calcutta Electric Supply Corporation was acquired for the benefit of Baburam Saha and his three brother, though the conveyance was taken in his name alone; The defendant maintains, on the other hand, that the properly was acquired for the benefit, not of the members of one branch alone, bat of all the member of the Saha family. The question thus arises, what was the true nature of the purchase effected on the 21st December 1904.
5. The principles applicable to cases of this character are well-settled and need not be elaborately discussed. As was observed by ' Lord Sumner in Moti Lal v. Kundan Lal 39 Ind. Cas. 964 : 25 C.L.J. 581 : 21 C.W.N. 929 : 32 M.L.J. 468 : 15 A.L.J. 329 : I P.LW. 190 : 19 Bom.L.R. 471 : 22 M.L.T. 10 : (1917) M.W.N. 464 : 6 L.W. 92 (P.C.) the burden of proving that a certain conveyance standing in the name of one person is bsnami for another under whom a third person claims, lies on the person who so raises the plea of benami. In the process of this investigation, the Court must take care, as Lord Shaw observed in Muhammad Mahbub Ali Khan v. Bharat Indu 53 Ind. Cas. 54 : 23 C.W.N. 321 : (1919) M.W.Y.N. 507 (P.C.) to rest its decision, not upon suspicion bat upon legal evidence establish- ed by legal testimony, although the Court need not approach the transaction with that scrupulousrigour which, in other systems of jurisprudence, may demand the existence of the clearest positive evidence that the ex facie owner of a property holds the same for the interest of another, The case before us is reasonably free from difficulty to this extent, that the rival claimants are agreed that the conveyance by the Calcutta Electric Supply Corporation to Baburam Saha was not for his exclusive benefit. It is the common case of both tides that the transferee acquired the property for him self and others; the only question is, who these other persona were--were they the members of one branch of the family, or did they include all the members of the family. For the solution of this question, the most important test to be applied is the source of the purchase-money, for, as was observed by Mr. Ameer Ali in Nrityamoni Dassi v. Lakhan Chunder Sen 33 Ind. Cas. 452 : 43 C. 660 : 24 C.L.J. 1 : 20 C.W.N. 522 : 30 M.L.J. 529 : (1916) 1 M.W.N. 332 : 3 L.W. 471 : 18 Bom. L.R. 418 : 24 C.L.J. 1 : 20 M.L.T. 10 (P.C.) where it is (asserted that an assignment in the name of one person is really for the benefit of another person, the vital test is the source whence the consideration came. Sir George Forwell formulated the same test in different language when he observed in Bilas Kunwar v. Desraj Ranjit Singh 30 Ind. Cas. 299 : 42 I.A. 202 : 37 A. 557 : 19 C.W.N. 1207 : 29 M.L.J. 335 : 2 L.W. 830 : 18 M.L.T. 248 : 13 A.L.J. 991 : 17 Bom. L.R. 1006 : 22 C.L.J. 516 : (1915) M.W.N. 757 (P.C.)) that in the case of a benami transaction the trust of the legal estate results to the man who pays the purchase-money. To the same effect is the decision of the Judical Committee in Parbati Dasi v. Baikuntha Noth, Das 22 Ind. Cas. 51 : 18 C.W.N. 428 : 9 C.L.J. 129 : 15 M.L.T. 66 : (1914) M.W.N. 42 : 12 A.L.J. 29 : 16 Bom. L.R. 101 : 26 M.L.J. 248 (P.C.) which retails the earlier pronouncements in Dhurm Das Pandey v. Musammat Shama Soondri Dibiah 3 M.I.A. 229 : 6 W.R.P.C. 43 : 1 Suth. P.C.J. 147 : 1 Sar.P.C.J. 271 : 18 E.R. 484 and Gopeekrist Gosain v. Gangapersaud Gosain 6 M.I.A. 53 : 4 W.R.P.C. 46 : 1 Sar.P.C.J. 493 : 19 E.R. 20. In addition to this, as pointed out in Upendra Nath Nag v. Bhupendra Nath Nag 32 Ind. Cas. 267 : 21 C.W.N. 280, the Court should take into consideration the question of possession and the surrounding circumstance. In the present case, it is not alleged on either side that the consideration for the conveyance was paid by Baburam Saha with his own money, or, indeed, that he had such separate fund at all. The money must accordingly have been paid out of the funds of a family business carried on in the firm name of Gobardhan Saha. This necessarily leads to the question, who were the partners of this firm. The case for the plaintiff is that the firm had only four partners, namely, the four sons of Gobardhan Saha; the case for the defendant is that all the nine members of the Saha family, that is, all the descendants of Gobardhan Saha and his three brothers were partners. The Subordinate Judge ha* found on the oral evidence that all the members of the family were partners in the firm. The plaintiff further alleged that the business carried on upon the disputed land (on the east side of the canal) was distinct from the business conducted in the original premises (on the west side of the canal). This allegation has not been establish-ed on the evidence, and, as the Subordinate Judge pertinently remarks, it is improbable in the highest degree that a separate business for the same kind of goods would be started by some of the partners in the original firm, We thus see no reason to dissent from the conclusion of the Subordinate Judge that the original firm on the west of the canal belonged to the whole family and that the business on the disputed land to the east of the canal was an integral part thereof. There is bo reasonable doubt that the land was acquired for the family firm, and was indeed, treated as such in a suit for dissolution of the firm instituted on the 25th July 1913 by Surendra Nath Saha, the grandson of Biswa Nath Saha. No weight can be attached to the circumstances that the tax was paid and the license was taken in the name of Baburam Saha in whose name the conveyance stood'; nor does the fact that the tax and license fees for the original firm were paid separately from those on account of the business of the disputed land, justify the inference that the two were separate and distinct. We must remember that the two places were situated within the jurisdiction of two different Municipalities, and this would render separate assessment and collection inevitable. There is thus no escape from this conclusion that the plaintiff has acquired by his purchase title to only one fourth share of the disputed land, and as his title relates back to the date of his mortgage, while the title of the de end-apt relates back at most to the date of the attachment before judgment if not merely to the date of the decree subsequent thereto, the plaintiff is entitled to priority to the extent of his one-fourth share. We may add that no question has been raised before as to any possible right of the defendant to redeem the plaintiff. The inference follows that the Subordinate Judge has rightly dismissed the claim in excess of an one fourth share.
6. The result is that the decree made by the Subordinate Judge is affirmed and this appeal dismissed with costs.
7. The cross-objection are not pressed and are, therefore, dismissed.