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BasiruddIn Thanadar Vs. Mokima Bibi and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in44Ind.Cas.915
AppellantBasiruddIn Thanadar
RespondentMokima Bibi and ors.
Cases ReferredMuhammad Habibullah v. Mushtaq Husain
provincial insolvency act (iii of 1907), section 36 - transfer impugned--burden of proof--benami transaction, tests of--antecedent debts--dower claims. - the extent of ten or twelve thousand rupees. he has not admitted, however, that he was at the time insolvent nor does it appear that there were then any decrees outstanding against him. he owed a considerable amount to the appellant creditor for which the appellant in the course of the year 1915 after the execution of the hibas brought a suit against him. the suit was for the balance due on business transactions which took place in 1912-13. it is further in evidence that on the 15th may 1914 the insolvent had borrowed on a note of hand the sum of rs. 6,000 from the rungpur bank. in august of the same year he also borrowed rs. 1,000 on a note of hand from the north rengal bank. the appellant creditor obtained a decree against the insolvent on the 12th january 1916 for the sum of rs......

Richardson, J.

1. This appeal is preferred from an order of the District Judge of Rungpur, dated the 16th April 1917. For the present purpose the order must be treated as an order made under Section 36 of the Provincial Insolvency Act, refusing an application made by certain creditors of the insolvent that two conveyances executed by him within two years of the date on which he was so adjudged should be annulled. The conveyances in question were in favour of his two wives Nabnat Bibi and Mokima Bibi and are both dated the 11th January 1915. They are each in the nature of a hiba-bil-ewaz. In other words, they purport to have been executed in consideration of the dower debts which the insolvent owed to his wives respectively. In January 1915, the insolvent had been married to Nabnat for about 11 years and to Mokima for about 5 years. The dower promised in the case of Nabnat is said to have been Rs. 1,500 and in the case of Mokima, whose father was in better circumstances than the father of Nabnat, Rs. 5,000. The insolvency proceedings were commenced by an application made by the insolvent on the 17th August 1916 and the order of adjudication is dated the 25th November 1916. In the schedule of debts attached to the application) the insolvent estimates his liabilities at Rs. 17,975 and his assets at Rs. 19,872.

2. The case made for the creditors, one of whom Basiruddin Thanadar is the appellant before us, is that at the time the hibas were executed the affairs of the insolvent were in an involved state and the two hibas represent merely benami and colourable transactions. The insolvent has himself admitted that in January 1915 he was indebted to the extent of ten or twelve thousand rupees. He has not admitted, however, that he was at the time insolvent nor does it appear that there were then any decrees outstanding against him. He owed a considerable amount to the appellant creditor for which the appellant in the course of the year 1915 after the execution of the hibas brought a suit against him. The suit was for the balance due on business transactions which took place in 1912-13. It is further in evidence that on the 15th May 1914 the insolvent had borrowed on a note of hand the sum of Rs. 6,000 from the Rungpur Bank. In August of the same year he also borrowed Rs. 1,000 on a note of hand from the North Rengal Bank. The appellant creditor obtained a decree against the insolvent on the 12th January 1916 for the sum of Rs. 5,785. The Rungpur Bank and the North Bengal Bank also sued the insolvent in the course of the year 1915 and obtained decrees on the 13th December 1915 and the 4th January 1916 respectively. It appears that there was another decree against the insolvent obtained in the Small Cause Court for Rs. 684 with costs dated the 15th June 1916. Regard being had, therefore, to the prevalency of benami transactions in this country and to the surrounding circumstances it may well be conceded that there is some initial suspicion about these two hibas. It may also be conceded, as it is not disputed, that in a case arising under Section 36 of the Provincial Insolvency Act the burden of proving that the transaction impugned was carried out in good faith and for valuable consideration is on the transferee. This has been so held in the case of Nilmom Chowdhuri v. Basanta Kumar Banerjee 29 Ind. Cas. 814 : 19 C.W.N. 865 decided by this Court and in the case of Muhammad Habibullah v. Mushtaq Husain 37 Ind. Cas. 684 : 39 A. 95 : 14 A.L.J. 1183 decided by the Allahabad High Court.

3. Now in the Court below it has been found on the evidence that these two ladies, the wives of the insolvent, have succeeded in showing that their husband owed them as dower the sums I have stated. We have been taken through the evidence and I see no reason to differ from the opinion formed by the learned District Judge on this part of the case. It is practically common ground, regard being had to the admission made by the witness on behalf of the appellant creditor, that the insolvent was the son of a prosperous man and that he was at one time himself a prosperous shopkeeper. He and his wives came from the District of Ballia in the United Provinces, though the insolvent had a shop at Rungpur and lived there for a number of years. On the evidence as it stands on the record it cannot be said that the sums claimed as dower are in any way excessive. The main point which was made by the appellant in this connection is that the dower debts are not supported by any kabilnama or written document. But witnesses on both sides who are acquainted with the District of Ballia and with the practice of people there in similar circumstances with the insolvent state that in that district it is not usual to execute such documents. There is no doubt evidence for the appellant creditor that the dower stipulated for in most cases is much smaller than the sums mentioned in the present case. But one of the witnesses states in cross examination that at his own marriage dower was fixed at 202 gold ashrafis, that is to say, a sum of about Rs. 3,232, and that no document was executed. It is said that what the witness really said was that the dower which he promised was Rs. 200 and 2 gold ashrafis. But the learned District Judge has taken the statement as it stands in the deposition. No step appears to have been taken to clear up the point in the Court below and we must also like the District Judge take the statement as it stands. On this part of the case, therefore, as to the probability of these sums having been promised as dower and being in fact due by the insolvent to his wives, I accept the conclusion arrived at by the District Judge. It follows that there were in fact in respect of these conveyances, which are challenged, antecedent debts which might constitute good consideration for them and the argument in this Court has turned mainly on the value of the properties transferred.

4. Before dealing with that point, however, it is well to refer to an admission said to have been made by the insolvent himself in conversation with an officer of the Rungpur Bank. The principal witness on this point is the Pleader Babu Rajani Kanta Bhattacharjee who is the managing director of the Rungpur Bank. The conversation occurred, he says, a few months before the Rungpur Bank instituted its suit against the insolvent and it related to these hibas. Apparently the insolvent was trying to obtain time for paying off his debts and it is said that he admitted that the transfers were merely benami transactions. It appears, however, that what the insolvent said at the time was not quite understood by the learned Pleader, The answer which the witness gave in cross-examination leaves the matter somewhat vague. He says; ' I did not ask Abdur Rahman distinctly if the hiba was an out and out transaction. I did not enquire then in whose possession the properties at that time were.' Even if the insolvent made some statement of the kind which might be construed as an admission that the transactions were benami, it does not necessarily follow, regard being had to his position and to the fact that he was trying to gain time, that the admission was true. What appears to have happened after wards is that a draft was made of a power of attorney by which his wife Mokima Bibi was to empower him to pledge the property transferred to her as security to the Rungpur Bank. This draft was sent to the lady but she having consulted her own advisers refused to sign it or to give her husband the authority that he wanted. Her conduct in the matter seems to indicate that she was in real, and not merely in nominal, possession of the property, and the incident, therefore, is rather in her favour than otherwise.

5. In this connection, I should also mention that the title created by the hiba has been respected ever since, at any rate on paper. Transactions relating to the property such as payments of rent to the superior landlord and receipt of rent from the tenants in occupation and so forth are carried out in the name of the transferee. No doubt that is not conclusive. It has been pointed out that when a benami transaction is entered into, no benefit can be derived or expected from it unless the fictitious title is afterwards on paper treated as the true title. The question of actual possession is in some cases a test and an important test, but in the present case not much can be said about this either way because the husband afterwards not unnaturally lived in the house which he had transferred to one of his wives. The co-wife also lived there. Similarly in the circumstances little turns on the fact that the servants employed by the husband for managing the property were also employed by the wives or one of them after the properties were transferred. The mode in which the properties were enjoyed and managed is of little assistance in the present case and no doubt the learned Counsel was right in putting the case as dependent mainly on' the question as to the value of the properties.

6. Now it appears that the question of the value of the property transferred to Mokima Bibi was raised in the lower Court, but so far as the record shows it does not appear that in that Court any question was raided as to the value of the property transferred to Nabnat Bibi.

7. The facts as to the property transferred to Mokima Bibi were as follows. The property is a maurasi mukarari property with pucca buildings standing upon it. At the date of the hiba one building seems to have been nearly completed and since then another building has been commenced. We have a lease executed by certain tenants in favour of the lady on the 19th September 1916. That document shows that on that date she let out to those tenants nearly the whole house at a monthly rent of Rs. 110. The house is described as consisting of 12 doors, a door being, as I understand, a synonym for a room. The tenants took 11 doors for the monthly rent of Rs. 110 and there remained one room which was let out to Faizulla at a small rent. There was also a rent of Rs. 5 a month payable by a Panwallah for the verandah. The total annual rent comes to something more than Rs. 1,400. It is said that deducting Rs. 20 per cent. as costs for repairs and the annual rent payable to the superior landlord (Rs. 620), the annual profit works out at Rs. 500 or Rs. 530. The creditor claims that the value of the property should be taken at 20 years' purchase or say Rs. 10,000. Now this calculation may very well be on paper, but the evidence on which it rests, consists of passages carefully selected from the depositions of the witnesses for Mokima Bibi. There is no independent evidence of any value on behalf of the appellant creditor. One of his witnesses, who sets himself up to be an engineer and an expert, states that on looking at the house he could say that the building apart from the land was worth Rs. 11,000, but he could not say how much of this value was to be attributed to the old building and how much to the new, nor did he make any sort of examination of the buildings themselves. His estimate can only be regarded as a very rough and ready one and little more than a guess. As I have said, it is probable that the house was not complete at the date of the hiba. The insolvent himself in his evidence states that there were 12 doors at the time. But he was not asked to say definitely whether the building was actually finished and completed. On the other hand one of the witnesses for the appellant creditor Kailas Chandra Gupta makes the following statement. 'He (the insolvent) did not agree to that even and left the place somewhat annoyed. He had said that the value of the complete portion of his house was Rs. 8,000.' And further on the same witness says this: 'I cannot deny that the building was not complete in December 1914. He (the insolvent) told me that there were 9 complete rooms which were let out on hire. I cannot say how many rooms there are in the building altogether.' Then it appears that in the application for execution of the decree obtained by the North Bengal Bank the market value of this property was stated on the 9th December 1914 to be approximately Rs. 5,000. Similarly in an application for execution filed on the 4th February 1916, the market price of the property is stated to be approximately Rs. 7,000. No doubt estimates made for the purposes for which those estimates were made are not of much value. At the same time we have to consider the evidence on the record as a whole and to do the best we can with the materials which the parties have placed before the Court. On those materials the learned District Judge in the Court below has coma to the conclusion that the value of the property transferred to Mokima Bibi is not by any means as large as the appellant creditor would have us believe.

8. The question of the burden of proof was brought forward as a factor which would turn the scale but when there is evidence on both sides the question retains little, if any, importance. Granted that it is for the transferees to prove that these transfers were made in good faith and for valuable consideration, it has been found that there was some valuable consideration inasmuch as there was a debt due to each of the wives at the time. The question then is whether the transfers were made in good faith. No doubt, as the learned Counsel for the appellant contends, this involves as an important element to the value of the properties transferred. The evidence on that question perhaps leaves something to be desired, but on the whole I am unable to differ from the conclusion at which the learned District Judge has arrived. I am not persuaded either in the case of Nabnat or in that of Mokima that the value given was so incommensurate with the debt due as to justify us in saying that the transfer was not at the time made in good faith. Before leaving the case I should like to add that I am disposed to believe the insolvent when he says that he would never have applied to be declared an insolvent unless he had been arrested at the instance of the North Bengal Bank in execution of that decree.

9. The result is that, in my opinion, this appeal should be dismissed with costs. We assess the hearing fee at five gold mohurs.

Beachcroft, J.

10. I agree.

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