1. This is a minor defendant's appeal, against a decree for specific performance of an executory sale in respect of immovable property, passed by the trial court in a suit brought against him and his father, the father being shown therein as the guardian of his minor son, the appellant.
2. Respondents 1 & 2, who are the plaintiffs in the suit out of which this appeal has arisen, sued the appellant and respondent No. 3, his real father, in the court of District Judge at Sri-nagar for specific performance of an agreement to sell a building situated at Maisuma, Srinagar, for a total consideration of Rs. 30,000/-, said to have been executed by respondent No. 3 in their favour on 19-2-1970, on his own behalf, as well as on behalf of the appellant as his natural guardian, alleging therein that respondent no. 3 was the sole owner of the suit property and that the appellant was only a benamidar. It was further alleged that out of the total consideration of Rs. 30,000/- only Rupees 10,000/- remained to be paid to the vendors. On the institution of the suit, summons was issued to respondent No. 3 alone, both in his individual capacity, as well as the natural guardian of the appellant. This summons was duty served upon him who appeared in the court and also filed the written statement, both on his behalf as well as on behalf of the appellant, defending the suit inter alia on the grounds; that the appellant was not a benamidar: taut owned half of the suit property: that even though respondent No. 3 had executed the aforesaid agree-ment to sell the suit property on his own behalf as well as on behalf of the appellant as his natural guardian, yet, he could not have done so under law and the agreement was. as such, not binding on the minor, and since the suit property was joint and undivided between him and the appellant the agreement was not binding even on respondent No. 3: and that the agreement was without consideration, as respondent No. 3 had received a sum of Rs 10,000/- only out of total consideration of Rs. 30,000/-
3. This controversy gave rise to a number of issues. The parties joined the issues and also led evidence on them. The trial court on consideration of the same eventually de-creed the suit on payment of the balance of Rs. 10,000/- to respondent No. 3, holding: that he was the exclusive owner of the suit property and that the appellant was only his benamidar; that the appellant being merely a benamidar, the agreement that had been ostensibly executed on his behalf as well, did not suffer from any legal infirmity; and that out of the total sum of Rs. 30,000/-, respondents l and 2 had paid a sum of Rs. 20,000/- to respondent No. 3.
4. Aggrieved by the aforesaid judgment, the appellant has challenged the entire decree on the grounds; firstly, that being a minor he was not properly represented in the suit; secondly, that he is not a benamidar for respondent No. 3. but owns the suit property to the extent, of one-half of it; thirdly, that he being admittedly a minor, respondent No. 3 had no authority ta execute the executory sale in respect of his share in the property, much less, when the said executory sale was obviously to his detriment: fourthly, that the executory sale being void to the extent of one-half, it was ipso iure void in its entirety, as the property in respect whereof it was executed was joint- and undivided between the appellant and responded No. 3: and fifthly, that the executory sale was without consideration.
5. A preliminary objection was raised by Mr. Raina that respondent No. 3 having been appointed by the trial court as guardian-ad-litem of the minor appellant in the suit out of which the appeal has arisen, the appeal on his behalf could have been, filed by respondent No. 3 alone, till his appointment was terminated by his retirement, removal or death. The appeal not having been filed by respondent No. 3. but by some one else, it was not maintainable as his appointment as the guardian-ad-litem of the appellant still subsisted. For this, he relied upon Sub-rule (5) of Rule 3 of Order 32 C. P. C. The contention in reply of Mr. S L. Kaul was. however, twofold. Firstly, that respondent No. 3 was never appointed by the trial court as guardian-ad-litem of the appellant to defend the suit on his behalf in which he figured as a defendant to attract the bar of Sub-rule (5): and secondly, that even if it were to be held thai he was so appointed, still for the reasons stated in the memo of the appeal, he, in the interests of the minor himself, is liable to be removed from the guardianship of the appellant and Abdul Majid, his real maternal uncle, who filed the appeal as the guardian of the appellant, required to be permitted to file and prosecute it to its logical conclusion. In the premises, he prayed for appropriate orders. Decision of the preliminary objection thus turns upon the question as to whether or not respondent No. 3 was appointed as the guardian of the appellant, which incidentally is one of the main controversies raised in the appeal as well. At this stage it becomes necessary to notice the provisions of Order 32, Rule 3 which, for the sake of convenience, is reproduced as below :
'Where the defendant is a minor, the court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor.
2. An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff.
3. Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.
4. No order shall be made on any application under this rule except upon notice to the minor and to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, upon notice to the father or other natural guardian of the minor, or, where there is no father or other natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged cm behalf cf any person served with notice under this sub-rule.
5. A person appointed under Sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement or removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional court and any proceedings in the execution of a decree.'
6. Pressing his point that respondent No. 3 was never appointed as the guardian-ad-litem of the appellant. Mr. S. L. Kaul argued that before a person may be said to have been appointed as the guardian of minor, his appointment must not only be evidenced by a formal order of the court to that effect, but such formal order must further be shown to have been passed after strictly following the procedure laid down in Rule 3. No, application for appointment of respondent No. 3 as the guardian-ad-litem of the appellant in terms of Sub-rules (2) and (3) having been at all moved on behalf of respondents 1 and 2, nor any statement to the effect that respondent No. 3 had no interest in the matter in controversy in the suit adverse to that of the appellant having been made even in the plaint, nor there being any formal order of the trial court appointing respondent No. 3 as the guardian-ad-litem of the appellant, it is not possible to hold that he was so appointed to attract the provisions of Sub-rules (1) and (5) of Rule 3. For this, he also relied upon a few reported decisions, to which a reference shall be made a little later.
7. Provisions of Order 32 have been understandably enacted to protect the interest of the minor who is unable to protect it himself. What the court is, therefore, enjoined upon to do is to ensure that the person whom it proposes to appoint as his guardian to defend the suit on his behalf, is capable of doing it. To achieve this object, the procedure laid down in Rules 3 and 4 provides some important safeguards, e. g_ issuing notice to the natural or certified guardian of the minor, in case there is any, who is supposed to look after his interest more than any one else can; refraining from appointing that person as a guardian, whose interest in the subject matter of the suit is adverse to that of the minor; and obtaining the consent of the proposed guardian, as an unwilling guardian is hardly expected to deliver the goods. But, the fact still remains that the emphasis is not as such on the devout observance of the procedure provided, for the appointment of the guardian, as it is on to ensure that the proposed guardian adequately protects the interest of the minor. Therefore, so long as it can be safely said that the guardian has done all that he could do to protect his interest, the decision given in the suit against the minor will not be open to question on the mere ground that the procedure prescribed for the appointment of the guardian was not adhered to. This is further borne out from Section 99 of the Code which says that no decree shall be reversed or substantially varied in appeal on account of any error, defect or irregularity in any proceedings in the suit which does not affect the merits of the case, or the jurisdiction of the court. This section thus makes a clear distinction between the inherent lack of jurisdiction of the court and its irregular exercise by it. Making an application for appointment of a guardian, therein the fact that the interest of the proposed guardian is not adverse to that of the minor, issuing a notice to the natural or certified guardian of the minor, obtaining consent of the minor or his proposed guardian, are matters which undoubtedly belong to the realm of procedure, a non-observance whereof may or may not cause prejudice to the minor, and have nothing to do with the inherent jurisdiction of the court that tries the suit. Consequently, once it is shown that the minor has been substantially and effectively represented in the suit, any decree passed against him will not be open to challenge on the ground that the procedure laid down for appointing his guardian was not followed, unless it is further shown that the minor has been prejudiced thereby. Such a decree will not be void but shall be merely voidable at the option of the minor on proof of prejudice to him. The ease would be, however, different where the minor is shown to have remained unrepresented. In such a case the decree passed against him would be void ab initio for the obvious reason that the minor in the absence of a guardian shall not be deemed to have been validly made a party to the suit.
8. There is ample authority for the proposition. The leading case on the subject is Walian v. Banke Behari Per-shad Singh (19031 ILR 30 Cal 1021. In this case the minors had challenged the mortgage decree as well as the sale of their share in the suit property in execution thereof inter alia on the grounds that they were neither made parties to the suit, nor was any guardian-ad-litem formally appointed for them by following the procedure laid down in Section 443 of the Code of Civil Procedure, 1882, corresponding to Sub-rules (1) and (2) of Rule 3 of Order 32, nor were they or their mother, who is described in the plaint as their natural guardian, ever served in the suit or the execution proceedings. Their Lordships of the Privy Council on facts found that the minors had been substantially made parties to the suit wherein their mother was shown as their guardian, even though no formal order appointing her as such had been passed by the court. They also found that she had been duly served in the suit as well as the execution proceedings, and further found that the decree was not vitiated by any fraud, and nor had any prejudice occurred to the minors due to any defect of procedure in appointing their guardian Keeping in view the provisions of Section 578 of the Code of 1882, corresponding to Section 99 of the Code of Civil Procedure 1908, their Lordships held that the decree was unassailable. The locus classicus in the judgment reads as under :--
'Their Lordships are unable to concur in the conclusion at which the learned Judges arrived. The present plaintiffs were substantially sued in the former suit, and the alleged fraud has been negatived. It appears to their Lordships that they were effectively represented in that suit by their mother, and with the sanction of the Court; and for the reasons given by the first court their Lordships attach no importance to the certificate of Durga Dutt. There is nothing to suggest that their interests were not duly protected. The only defects which can be pointed out are that no formal order appointing the mother of the present plaintiffs to be their guardian ad litem is shown to have been drawn up; and that it is not definitely shown that any attempt was made to serve the summons in the former suit upon the infants personally, or upon their mother, a purdanashin lady, before serving it upon Gajadhur, the only adult male member and the karta of the family. It has not been shown that the alleged irregularities caused any prejudice to the present plaintiffs; nor indeed could there well be any, since it has been found that the original debt was one for which the present plaintiffs were liable, Their Lordships are of opinion that the defects of procedure alleged in this case are at most irregularities which, under Section 578 of the Civil Procedure Code, would not have furnished ground for reversing the proceedings in the former suit, if they had been raised upon appeal in that suit.'
9. Following the aforesaid Privy Council decision, the same principle was laid down by Das, J. in his lucid judgment in Pande Satdeo Narain v. Rama-yan Tewari. AIR 1923 Pat 242 (2) in these words :--
'In other words, where, on the face of the record, a person qualified to act as the guardian, appears as a guardian of minor for the suit, the court has no power in another suit brought for the purpose of impeaching the validity of the decree, to examine the evidence in order to see whether notices under Order 32, Rule 3 (4) were, in fact, served, or whether the person nominated as guardian did consent to act as guardian or whether the Court did expressly appoint such person as the guardian for the suit, unless it is shown that the defect in following the rules has affected the merits of the case. But where the record, on the face of it, shows, that the minor was not represented by a guardian for the suit, or was represented by a guardian disqualified under the express provision of the statute, from acting as guardian, the position is the same as if the minor were not a party to the suit, and the judgment rendered by the court is without jurisdiction and null and void, I think the decisions of the Judicial Committee support the conclusions at which I have arrived.'
10. To the same effect is the Full Bench decision of the Punjab High Court in Amrik Singh v. Karnail Singh AIR 1974 Punj and Hary 315. In this case an objection was taken to the decree against the minor on the ground that without serving a notice on his father and mother, an advocate of the court was appointed by the trial court as his guardian-ad-litem on the refusal of his brother to act as such, which was clearly against the mandate of Sub-rule (4) of Rule 3. The Full Bench held that it, was merely a defect of procedure, which in the absence of any prejudice to the minor, could not vitiate the decree against them, D. K. Mahajan C. J. speaking for the court said: (at. P. 321)
'After going through the case law cited before me. I have come to the conclusion that each case must be settled on its own facts and it would not be appropriate to lay down any general rule. The crux of the matter is that it has to be seen whether the minor was effectively represented in the litigation. If he was then the non-compliance with the provisions of Order 32, Rule 3, which are mandatory, would not render the decision void. But non-compliance has caused prejudice to the minor or he was not effectively presented, the decision will be void, i. e. the minor can either ignore it or avoid it. This approach is in consonance with justice because where the matter has been properly contested and no prejudice has been caused to the minor, it will be sheer injustice to the other side to reopen the matter again. Litigation is a very expensive affair and the general principle of law is that it should not be encouraged.'
11. A similar view was taken by this court in Habib Teli v. Ali Teli, AIR 1968 J&K; 9 where also a decree against a minor defendant was challenged on the grounds; firstly, that the father of the minor who had been shown in the plaint to represent him as his guardian had not expressly given his consent to act as such: secondly, that no application for his appointment as guardian had been made by the plaintiff; and thirdly, that he had not been appointed as the guardian by a formal order. All these contentions were negatived by the court and it was held that consent included even an implied consent. It was further held that failure to make a formal application for appointment of a guardian-ad-litem and failure to pass a formal order of the appointment of guardian, are merely irregularities of procedure, which cannot vitiate the decree against the minor, in the absence of proof of any prejudice to him. It was further held failure to state in such an application the fact that the interest of the proposed guardian, is not adverse to that of the minor is also a similar irregularity of procedure. (Also see Ram Asray Singh v. Sheonandan Singh, AIR 1916 Pat 267 (FB) Anandram v. Madho-lal. AIR 1960 Raj 189 : Srivamulu Vasireddi v. Putcha Lakshminarayana, AIR 1925 Mad 30 (FB), Raman Ganga-dharan v. Raman Narayanan, AIR 1959 Ker 169 and Inder Pal Singh v. Babu Singh, AIR 1956 All 218):--
12. I am in respectful agreement with the view taken, in the authorities mentioned heretofore.
13. This brings me to tlhe decisions relied upon by Mr S. L. Kaul. The first to be noticed is Nirmal Chandra Ray v. Khandu Ghose. AIR 1965 Cal 562. In this case the decree against the minor was challenged on the ground that no formal application was made to appoint his guardian, nor was any formal order passed by the trial court in that behalf-Only the brother of the minor was shown in the plaint to represent him as his guardian, even though his father was alive and competent to act as his guardian. The Division Bench held that Sub-rules (3) & (4) of Rule 3 being manada-tory in character, their infraction vitiated the decree, even if no prejudice was shown to have occurred to the minor on that account. The Privy Council decision in (1903) ILR 30 Cal 1021 (supra) was distinguished on the ground that since no provision in pari materia with Sub-rules (3) (4) of Rule 3 of Order 32 of the Code of 1908, existed in the Code of 1882, under which the aforesaid Privy Council decision came to be passed, it was no authority for interpreting the provisions of Sub-rules (3) & (4) which came to be enacted for the first time in 1908.
14. A similar view was taken by a Division Bench of the Patna High Court in Ramachandra Pd. Singh v. Rampunit Singh, AIR 1968 Pat 12. These decisions no doubt support the contention of Mr. S. L. Kaul, but with utmost respect to the learned Judges who constituted the aforesaid two benches, I find it difficult to agree with them. Irrespective of the fact whether Sub-rules (3) & (4) are mandatory or merely directory in character, the fact remains that these are rules of procedure and are always subject to the provisions of Section 99. The decree passed in violation of these sub-rules shall not be open to question except on proof of prejudice. Section 578 of the Code of 1882 controlled not only the procedural provisions that existed in the Code when it came to be enacted, but would have controlled all such provisions which would be included in the Code even thereafter. The distinction drawn in the aforesaid two bench decisions was therefore clearly unreal,
15. The other decision is Maikoo v. Uma Shankar AIR 1978 All 551. This decision leads us nowhere, for in it the case had been remanded to the trial court to record its satisfaction that the person whom it had appointed as the guardian of the minor was fit to act as such.
16. The next decision is Asha Rani v. Amrat Lal, AIR 1977 Punj and Har 28. in this case a decree against the minor was challenged inter alia on the ground that the procedure laid down in Order 32, Rule 3 as applicable to the Stales of Punjab and Haryana, requiring a list of the near relatives of the minor defendant to be filed along with the application for appointment of the guardian was not followed. The learned single Judge relying upon a Supreme Court, decision viz. Ram Chandra Arya v. Man Singh, AIR 1968 SC 1954 held that the minor not being represented in the suit, the decree against him was a nullity. With due respects to the learned Judge, if I may say so the view taken by him is not correct. Firstly, he does not appear to have taken notice of the Full Bench decision of the same court viz. Amrik Singh v. Karnail Sinfih. AIR 1974 Puni and Har 315 (supra), taking a contrary view, and secondly, his reliance upon AIR 1968 SC 954 was clearly misplaced, for the case before the Supreme Court was not of any defect of procedure in appointment of the guardian, but was one of the failure to appoint any guardian for the minor at all.
17. The last decision, viz Kumara Kangaya Goundar v. Arumugha Goun-dar. AIR 1970 Mad 179 instead of supporting the contention of Mr. S. L. Kaul, supports the case of respondents 1 & 2. In this case it was clearly laid down that where the minor was effectively represented in the suit, and neither his guardian-ad-litem was shown to have any interest adverse to him, nor, was the minor shown to have been prejudiced as a consequence of the defect of procedure in appointing his guardian, the decree passed against him would not be vitiated because of such defect of procedure, or because his natural guardian was willing to act as his guardian-ad-litem. To quote the learned judge in his own words (at d. 183) :
'Law insists that the minor's interests in the litigation should be taken care of and the minor represented in the litigation by an adult whose interests are not adverse to that of the minor. The minor's interests in the litigation should not be neglected or prejudiced, and courts have to be jealous in observing the requirements of the law in this regard in letter and spirit. All the same when it is found that the guardian who had been acting for the minor in the suit had not let down the interests of the minor and when the minor was in no way prejudiced, it is immaterial if some irregularity in the appointment is found. If the purpose for which a guardian ad litem is appointed -- to put forward pleas properly available for the minor in the case and protect his interest in the litigation by necessary representation -- has been achieved, the minor cannot later, by another guardian or on becoming a major avoid the decree if it is against him on the ground of some irregularity in the procedure adopted for appointing the guardian.'
18. The law is thus well settled that where a minor defendant is substantially and effectively represented by a guardian with the assent of the court, who is not shown to have any interest adverse to him, and who has done all that he could possibly do to safeguard his interest in the subject matter of the suit, the decree passd against the minor shall not be open to challenge either because the plaintiff failed to make any application for appointment of his guardian, or because the court failed to pass a formal order appointing the guardian for him or because the guardian did not expressly consent to his appointment as such, or because the plaintiff failed to make a statement in the application for appointment of the guardian, or in the plaint that the proposed guardian did not have any interest adverse to that of the minor, unless prejudice is shown to have occurred to him on that account.
19. The appellant was admittedly shown as one of the defendants in the suit under the guardianship of respondent No. 3. his real father as well as his natural guardian. On the institution of the suit, as already noticed, summons was issued to him through respondent No. 3 as his guardian, which was duly served upon the latter. Respondent No. 3 had filed written statement not only on his own behalf, but also on behalf of the appellant, taking therein all such pleas as he could have possibly taken to safeguard the interest of the appellant. The trial court had also framed issues, some of which were required to be proved by the appellant. Evidence on these issues on his behalf had also been produced by respondent No. 3. All this had happened with the assent Of the trial court. No prejudice is shown to have occurred to the appellant on account of the defects of procedure as pointed out by Mr. S. L. Kaul in appointing respondent No. 3 as the guardian-ad-litem of the appellant. The decree against him cannot be said to have been vitiated on account of any such defect, and the appointment of respondent No 3 as the guardian of the appellant has to be treated as an appointment within the meaning of Sub-rules 1 and 5 of Rule 3. as on the same facts it is not possible to treat him as a duly appointed guardian for one purpose, but not for the other.
20. Once it is found that respondent No. 3 was appointed by 'he trial court as the guardian-ad-litem of the appellant to defend the suit on his behalf, then there can be no manner of doubt, that in terms of Sub-rule (5) of Rule 3, only he could have filed the present appeal on his behalf, as his appointment has neither been terminated, nor has he been removed from the guardianship by the court so far. There is ample authority to support this proposition. (See Venkate Chandrasekhara Raza v. Alkarajamba Maharani (1899) ILR 22 Mad 187, Sambhoo v. Kanhaya, AIR 1922 All 332 (2). Bhagelu v. Mst. Dharma, AIR 1924 All 79, Shiva Sahai Ram v. Sunder Mandal. AIR 1948 Pat 91 and RaJ Behari Lai v. Dr. Mahabir Prasad, AIR 1956 All 310 (FB)).
21. Then the two questions. Is respondent N. 3 liable to be removed from the guardianship of the appellant and Abdul Majid his maternal uncle entitled to be appointed as the guardian in his place 1 If so, which court is competent to do it and from what stage 1 Dealing with the second question first, it is worth noticing that none of the provisions of Order 32 which deal with the removal of the guardian of a minor, specifically says as to which court, i. e, whether the trial or the appellate, is entitled to remove a guardian who has been appointed by the trial court. Even then, since Order 32 deals with suits and not appeals, it would be reasonable to infer that it deals with powers of the trial court alone. Still, once the suit is finally disposed of by it, the trial court becomes functus officio, and it would be the appellate court which alone shall have the power to remove a guardian appointed by the trial court, and appoint a new one in his place for the purposes of the appeal. It would not be possible to assume such a power in the trial court for the purposes of regulating the procedure in an appeal, much less, when the appeal has been filed in the appellate court without first obtaining the order of his removal. That apart even Sub-section (2) of Section 107 of the Code declares that the appellate court shall have all the powers of the trial court. Furthermore, there being neither any provision enabling an appellate court to exercise this power, nor there being any bar against the exercise of such a power by it, power to remove the guardian shall be deemed to inhere in the appellate court by virtue of its duty to do justice between the parties.
22. A similar question arose in AIR 1956 All 310 (FB) (supra). Dissenting from the minority view expressed by Desai J. that an appeal filed by the new guardian of the minor appellant without first obtaining from the court the order of remova] of his original guardian was a nullity. Aggrawal and Bhargava JJ. held that such an appeal was not a nullity, but could be treated at par with a suit filed on behalf of a minor without a next friend, and the defect of its institution remedied by the appellate court at any time during its pendency, by an ex post facto removal of the original and appointment of the new guardian. Accepting the majority view, the court eventually held (at Pp. 318, 319) :
'Our answer to the question referred to us, therefore, is that a minor defendant against whom a decree is passed cannot validly institute an appeal through a person other than the guardian 'ad litem' appointed by the trial Court, who has not resigned or died or been removed, provided that the appellate Court may on sufficient cause being shown, allow an appeal to be filed on behalf of the minor by a person other than the guardian ad litem appointed by the trial court by removing such guardian and appointing such other person as the guardian of the minor from the date of the institution of the appeal.'
23. I am in respectful agreement with the majority view which, in my opinion, not only reflects the spirit of Order 32, but also meets the requirement of justice and equity.
24. Respondent no. 3 having been declared by the trial court as the exclusive owner of the suit property, and he himself not having chosen to come up in appeal against the impugned decree, it would be highly unsafe to retain him as the guardian ad litem f the appellant. I, therefore, remove him from his guardianship, and appoint Abdul Majid who has filed the appeal on behalf of the appellant as his new guardian; the removal as well as the appointment taking effect right from the date and time the appeal came to be filed. The preliminary objection raised by Mr. Raina is, therefore, overruled and the appeal is held to be maintainable.
25. This brings me to the question of the nature of the sale deed in respect of half portion of the suit property executed on 7-6-1968 in favour of the appellant by its original owner Mohd Hussain, which the trial court has found was benami: the beneficial interest in the property purchased vesting in respondent No. 3 himself. Following the Privy Council decision in Gopoekrist Gosain v. Gange Prasad Gosain (1854) 6 Moo Ind App 53, almost all the High Courts in India -- the only exception being the High Court of Hyderabad have held that the English doctrine of advancement does not apply to India. Consequently, where the sale transaction is ostensibly in favour of the son, but the source of the sale consideration is traced to his father, the son and not the father shall have to prove that the son is not a benamidar for the father and that the father had intention to convey title to the son. Source of consideration is no doubt the primary factor in determining the benami nature of the transaction, and may reasonably persuade the Court to raise a prima facie inference that the ostensible owner is merely a benamidar for the person who paid the consideration. Nevertheless, it is still not conclusive of the matter, and this inference may be rebutted by the ostensible owner by proving an intention on the part of the person who supplied the consideration to convey title to him. Position of the parties, their relation to one another, the motives behind their actions and their subsequent conduct, are all circumstances that are germane in rebutting the inference of benami. But, the fact still remains that the burden of proving benami character of the transaction lies on him who sets up the plea, and in the absence of clear and cogent proof to that effect, the apparent title must prevail. Before, therefore, the ostensible owner may be called upon to prove that he is the real owner, the person who sets up the plea of benami character of the transaction, must prove by clear and cogent evidence that it was he who had supplied the consideration for the transaction. What he has to prove is the fact that it was actually his money that was paid to the transferor, and not merely the fact that the money passed from his hand to that of the transferor. The law on the point was succinctly laid down by the Federal Court in Gangadara Ayyar v. Subra-mania Sastrigal. AIR 1949 FC 88. wherein it was held :
'It is settled law that the onus of establishing that a transaction is benami is on the plaintiff and it must be strictly made out. The decision of the Court cannot rest on mere suspicion, but must rest on legal grounds and legal testimony, in the absence of evidence, the apparent title must prevail. It is also well established that in a case where it is asserted that an assignment in the name of one person is in reality for the benefit of another, the real test is the source whence the consideration came and that when it is not possible to obtain evidence which conclusively establishes or rebuts the allegation, the case must be dealt with on reasonable probabilities and legal inferences arising from proved or admitted facts.'
26. The trial court has held the sale in favour of the appellant as benami on the grounds: firstly, that the entire consideration of the two sale deeds, including the one executed in favour of the appellant was paid to Mohd Husssain Bhat, the vendor, by respondent No. 3: secondly, that the property remained in his possession, even after it was purchased: and thirdly, that the two sale deeds also remained in his possession and were produced in the court by him. As regards the payment of the sale consideration, there is no evidence except the statement of PW Mohd Hussain Bhat, the original vendor of the property, who incidentally happens to be the real father of respondent No. 2. He has stated that he executed the two sale deeds in respect of the suit property on 7-6-1968, transferring half of it to the appellant for a sum of Rs. 25,000/-and the other half to respondent No. 3 for an equal amount, and the entire sale consideration amounting to Rs. 50,000/- was paid to him by respondent No. 3, without further stating as to whether the said money also belonged to respondent No. 3 alone. No evidence has been led bv respondents 1 and 2 even to show that respondent No. 3 at the relevant time was possessed of this much amount. That apart, riot a single witness including the plaintiff, has come forward to make even a bald statement that the sale in favour of the appellant was benami. Respondent No, 3, who could have possibly set up the Plea that the appellant was merely a benamidar for him. has on the other hand consistendly, acknowledged him as the owner of half of the property and has further gone to state that the sale consideration of Rs. 25,000/- was paid by the appellant himself, and he had arranged this money by selling the jewellery of his mother. The trial court has disbelieved him for the reasons; firstly. that the jewellery being worth Rs. 15,000/-only, the appellant could not have been able to arrange Rs. 25,000/-: and secondly, that the person to whom it had been sold was not examined as a witness, Initially, the burden as already observed, lay on the plaintiff-respondents to show not only that the consideration money passed from the hand of respondent No. 2 to that of PW Mohd Hussain Bhat, but, also that it was the money of respondent No. 3 him-self. Respondents 1 & 2 having failed to discharge this initial burden, neither the appellant, nor respondent No, 3, was under an obligation to show that the sale consideration of Rs. 25,000/- which was paid on behalf of the appellant, was in fact his money, Furthermore the price of jewellery of the appellant's mother which, according to respondent No. 3, was Rs. 15,000/-or so at the time of her marriage, could not have remained stationary at Rs. 15,000/- even ten years thereafter. . It must have gone higher by the time the sale took place. That apart, she had an additional income of a monthly rent of Rs. 100/- from a house that she owned.
27. Equally untenable are the other two reasons assigned by the trial court. The appellant, a minor hardly ten years old being under the care and custody of respondent No. 3, his father it was the latter who was supposed to keep the documents in safe custody and also to receive the rental of the property on his behalf. Besides, respondents 1 and 2 had themselves acknowledged the ownership of the appellant to the extent of half of the suit property, by entering into an agreement with him that he would sell his share to them. They were thus bound by their own admission, unless they could show that it was made erroneously. They have not produced any evidence to show that the aforesaid admission was made by them erroneously. All these facts and circumstances were overlooked by the trial court. To say the least, therefore, the finding of benami recorded by it is conjectural that hag to be upset. In the result, it is held that the appellant is the owner of one half of the suit property: the owner of the other half being respondent No. 3.
28. As regards the question, whether or not respondent No. 3 was competent to agree to sell the share of the appellant as his natural guardian, the trial court has left it undetermined, and obviously so because it held that respondent No. 3 was the exclusive owner of the entire suit property. Issue No. 3 covers this point, which remains undecided. In these circumstances, therefore, the impugned decree in so far as it relates to the share of the appellant cannot be sustained.
29. Then the other questions: what is the effect of this finding on the decree appealed against Will it have to be set aside in toto, or can it be upheld in so far as the share of respondent No. 3 is concerned Section16 of the Specific Relief Act provides an answer to these questions. This Section reads as under :--
'When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the court may direct specific performance of the former part.'
30. The appellant and respondent No. 3 own the suit property by virtue of independent sale deeds in their favour. The executory sale relates to their two equal shares in it, which stand on a separate and independent footing from each other. In this view, the decree in respect of the share of respondent No. 3 can and ought to be maintained, a fortiori, when respondent No. 3 has not himself chosen to appeal against it. But then, for what consideration has the sale of his share to be maintained in the decree? The trial court, even though it came to the conclusion that the bargain was struck for Rs. 50,000/-, yet held that it could not exceed Rs. 30,000/-which was the amount mentioned in the deed, as in its opinion, the parties were forbidden from proving anything contrary to the terms of the document by Section 92 of the Evidence Act. In my opinion the view taken by the trial court is not correct. Section 92 no doubt prohibits proof of facts against the terms of a written contract, but this section is controlled by the provisions of Section 58 of the Evidence Act, which says that facts admitted need not be proved. Not to speak of respondent's witnesses, even respondent No. 2 in his statement has made no secret of the fact that the bargain was struck for Rs. 50,000/- and a lesser amount was mentioned in the deed because respondent No. 3 had insisted on it. This admission hardly required any evidence to be led by the defendants to give an occasion to Section 92 to come in their way. That apart, consideration could not be a term of the document to attract the bar of Section 92. After all how could a party to a document prove that no consideration was ever paid to it, when there was a clear recital in the document that it was so paid. The same principle would apply where a party to a document would try to show that the consideration actually fixed was different from the one mentioned in the document. In taking this view I am supported by a division bench judgment of the High Court of Madras viz.. A. Rakkivana Gounder v. Chinnu Goundan, AIR 1954 Mad 84. (Also see Mst. Batul Bandi v. Sridhar. AIR 1941 Oudh 189, Sah Lal Chand v. inderjit (1900) ILR 22 All 370 (PC), Hukumchand v. Hiralal. (1878-79) ILR 3 Bom 159 and Lala Himmat Sahai Singh v. Llewhellen (1885) ILR II Cal 486) :--
31. There is plenty of evidence to show that respondent No. 3 has already received a sum of Rs. 20,000/-. This is clearly borne out from the statement of P. Ws. Mohd Hussain Bhat and Abdul Ahad Halwai. P. W. Abdul Ahad Halwai is a close relation of respondent No. 3. To the same effect is the statement of respondent no. 2. No evidence worth the name has been produced by the respondents to rebut this evidence. The finding of the trial court that respondent No. 3 had already received a sum of Rs. 20,000/- from respondents 1 & 2 is, therefore, confirmed. Respondent No. 3 is, consequently entitled to get a sum of Rs. 5,000/- more from respondents 1 and 2 for the sale of his half share in the suit property,
32. Allowing the appeal to the extent indicated above, the decree of the trial court is set aside, in so far it relates to the share of the appellant in the suit property. It is, however, maintained in so far as the share of respondent No. 3 in it is concerned, but subject to the payment of Rs. 5,000/- more to him. The case is remanded back to the trial court to dispose it of in the light of the finding to be recorded by it on issue No. 3. Keeping in view their partial failure and success, the parties are left to bear their own costs in this court.
A.S. Anand, J.
33. I agree.