Patna High Court
Shiva Narain Ram And Ors. vs Musammat Phuljharia And Ors. on 22 July, 1919
Equivalent citations: 52IND. CAS.402, AIR 1919 PATNA 539
JUDGMENT Das, J.
1. In my opinion this appeal is concluded by the findings of facts.
2. The suit is for possession of certain houses which, it is alleged by the defendants, belonged to the entire joint family of which they are members. The root of title to these houses is a deed of gift executed by the Maharaja of Dumraon in favour of Musammat Phuljharia. The plaintiffs claim through this lady. The case of the defendants is that all these houses were joint family properties. They were purchased by the Maharaja of Dumraon in execution of a mortgage decree obtained by him against the joint family, and subsequently he executed a deed of gift in favour of Musammat Phuljharia but intending to confer the benefit on the entire joint family. In other words, the assertion of the defendants is an assertion of benami. The reason for benami is given in the 8th paragraph of the written statement. I shall have something to say as to that presently. But it seems to me that upon the finding of the lower Appellate Court it must be held that the plaintiffs are entitled to succeed in the action. First of all, the deed recites that owing to the application of the grantee, that is to say, Musammat Phuljharia, the gift is made to her and her heirs. As the lower Appellate Court points out, the document does not recite that it was made for the benefit of the whole family of which the grantee was a member. The lower Appellate Court finds that there is no evidence on the record that Rs. 700, which was paid as Nazrana to the Maharaja, was paid out of the joint family funds. The lower Appellate Court has found that the houses in suit have been repaired at the cost of the plaintiffs and that there are account papers to prove the fact of such payment towards costs. The learned Vakil on behalf of the appellant argues on the authority of a case reported as Nabin Chunder Chowdhry v. Dokhobala Dasi 10 C. 686 : 5 Ind. Dec. (N.S) 461 that where property is acquired in the name of a wife whose husband is a member of a joint family, it must be presumed that the acquisition in her name is for the benefit of the entire joint family. That may be so, but here the Court has found as a fact that the property was acquired by Musammat Phuljharia for her own benefit and for the benefit of her children. Therefore, this finding of fact is binding on me.
3. Next, it seems to me that in any case the appellants, or some of them are estopped from putting forward their title to these houses in view of their own written statement as contained in paragraph 8 thereof. There they give a reason for the benami. They say that there was a decree against the joint family and in order to safeguard the property against the creditors who had a decree against them, it was decided that the property should be put in the name of Musummat Phuljharia. The judgment obtained by the creditors is on the record and it shows that the judgment-debtors were one Deni Ram who is not a party in this litigation and Deni Ram who is the father of defendants Nos. 1, 2 and 3. The lower Appellate Court says, and the judgment which has been put in supports that statement, that Deni Ram and Deni Ram successfully saved this property from sale at the instance of the decree holder. The question arises that having entered into a fraudulent transaction of this nature and having succeeded in the fraud, are they entitled to plead their own fraud and claim to prove the benami nature of. the transaction? The question has been debated in more cares than one. It is unnecessary to deal with them, bat the authorities certainly establish that no man can allege his own fraud to invalidate a transaction entered into by him. The case made by the defendants is: We entered into this benami transaction in order to save the property from creditors. We have succeeded in saving the property from the creditors and now there is no longer any necessity for the benami character to continue, and, therefore, we ask the Court to declare the benami nature of the transaction." In my opinion they cannot be heard to take up a position like that.
4. In my opinion this appeal fails and must be dismissed with costs.