Calcutta High Court
Girindra Nath Mukherjee And Ors. vs Soumen Mukherjee And Ors. on 9 March, 1988
Equivalent citations: AIR1988CAL375, AIR 1988 CALCUTTA 375
JUDGMENT L.M. Ghosh, J.
1. The judgment we render now governed two appeals being F. A. No. 525 of 1474 and F.A. No. 555 of 1974. Two cross objections have also been filed. F.A. No. 525 of 1974 a rises out of the judgment and decree in T.S. No. 65 of 1971 (previously numbered asT.S. No. 107 of 1957) of the 7th Court of Subordinate Judge. Alipore. F.A. No. 555 of 1974 arises out of the judgment and decree in T.S. No. 66 of 1971 (previously numbered as T.S. No. 115 of 19591 of the same court. It may be mentioned that the learned Subordinate Judge heard both the suits analogously and disposed of them by one common judgment. Title Suit No. 65 of 1971 was dismissed on contest. Title Suit No. 66of 1971 was decreed in part on contest. Manindra Nath Mukherjee was the appellant in F.A. No. 525 of 1974. The heirs of Sidheswari Debi have filed the appeal. F.A. No. 555 of 1974.
2. Title Suit No. 65 of 1971 was filed by the plaintiff, Manindra Nath Mukherjee. for partition of the suit properties and for accounts. That is the main suit and the other suit, namely Title Suit No. 66 of 1971, can be legitimately called and off spring of the first suit. In Title Suit No, 65 of 1971, the plaintiff, Manindra Nath Mukherjee, alleged that the suit properties were purchased by his father with his own money. Late Nanilal Mukherjee was the father of the original plaintiff and the original defendants Nos. I to 4 and the husband of the original defendant No. 5, late Sidheswari Debi. It is an admitted case that late Nanilal Mukherjee married twice. His first wife, Sarojini, thed at a premature age. Then Nanilai married the original defendant No. 5 in 1903. According to the plaintiff, Sailendra, the defendant No. 1 was then only three years old. There is a little divergence on this point and it is that according to the original defendant No. 1, he was then six years old. Be that as it may, according to the plaintiff, Manindra, Nanilal purchased the property of I, Lovelock Street on 9-9-12 with his own money, in the benami of the original defendants Nos. 1 and 5 viz.. Sailendra and Sidheswari. In 1912, as per account of the plaintiff, the defendant No. 1 was then only twelve years old and a student of class-IV. It was pleaded that neither the defendant No. I nor the defendant No. 5 had any means to purchase the property. Then again, in 1915, the plaintiff's father constructed a house, partly two storeyed and partly three storeyed-with his own money, as stated by the plaintiff. Late Nanilal retired in 1931 as Manager of the Jail Depot. The further account of the plaintiff was that to meet the marriage expenses of his daughter and also to establish a deity somewhere. Nanilal had to mortgage the property, but as the title deeds stood in the names of Sailendra and Sidheswari, they were made to execute the mortgage deeds. But the plaintiff's father also joined in the mortgage deeds. The plaintiff averred that Nanilal had taken the entire money raised by mortgaging the property. In 1932, a strip of land out of 1/1. Lovelock Street was again purchased in the names of the defendants Nos. 1 and 5. Here also, the plaintiff mentioned that Nanilal himself had purchased the property in the benamis of Sailendra and Sidheswari. The properties of the Lovelock Street are the 'A' Schedule properties of the plaint. The 'B' Schedule properties are the properties in Palpara, District Nadia. They were acquired by Nanilal Mukherjee with his own money, but in the names of Sailendra and his other sons. The plaintiff asserted that Nanilal remained in possession of those properties. It is not disputed that Nanilal thed in 1944.
3. Some mortgage deeds were executed. Haridas Dey, a mortgagee, filed Title Suit No. 132/50 against the defendants Nos. 1 to5 and obtained a compromise decree for Rs, 8,000/-. The plaintiff averred that nothing was explained to the defendant No. 5. Then the legal representatives of one Durga Das Chatterjee another mortgagee, brought T.S. No. 156 of 1951 (re-numbered T.S. No. 47 of 1952). The defendant No. 1 paid off the entire mortgage dues'. After that, the defendant No. 1 filed a contribution suit against the defendant No. 5 and got a decree for Rs. 4,494A. The defendant No. 1 it was stated, also put the decree into execution. The plaintiff claimed that on the death of Nanilal, himself and the 'defendants Nos. 1 to 5 got one-sixth share each in the suit properties.
4. There was a partition deed executed by the defendant No, 5 on 28-9-57. According to the plaintiff, the defendant No. 1 fraudulently got the partition deed executed by the defendant No. 5. The deed contained wrong recitals. Particularly, the plaintiff submitted that the recitals in the said partition deed that the defendant No. 1 had half share in the properties were entirely wrong. By the said partition deed the defendant No. 1 was given further allotments out of the alleged share of Sidheswari, in lieu of the mortgage dues. The plaintiff stated that the deed was not explained to the defendant No. 5 and so it was a piece of fraudulent transaction. Such a deed could not affect the right, title and interest of the plaintiff. The plaintiff, it is said, demanded partition. As that was not complied with he had to file the suit.
5. The defendant No. 1, Sailendra, filed a written statement and contested the suit. He made out a case that the suit properties were purchased by himself and Sideshwari with their own funds. He submitted that Nanilal was burdened with a big family and his income was not sufficient. Bamapada, the mother's father of the defendant No. 1, was said to have been a man of affluence. According to the defendant No. 1, Bamapada contributed the major part for the acquisition of the land of Lovelock Street and also for construction thereon. The defendant No. 1 also stated that Nanilal himself had all along treated the property as the property of the defendants Nos. 1 and 5. As per the statement of the defendant No. 1 the building of the entire premises was not constructed at a time in 1915. The front portion was constructed in 1928 with the money of the defendant No. 1, as claimed by him, and the major portion of the construction costs, other than the front portion construction cost, was said to have been borne by Bamapada. With regard to the mortgages, it was stated that the plaintiffs father did not mortgage the same to meet the marriage expenses of the sister of the plaintiff. As to his own means, the defendant No. 1's case was that he was carry ing on a substantial business from long before. With regard to the Palpara properties, the defendant No. 1 just stated that Nanilal did not acquire the same. On the basis of these averments, the defendant No. 1 claimed eight annas share in the properties. As regards the partition deed the defendant No. 1 stated that after the, contribution suit was decreed, there was discussion between the plaintiff, this defendant No. 1 and the defendants Nos. 2 to 4. Sri B.K. Banerjee, an Engineer Commissioner, was engaged by the parties and accordingly a partition plan was prepared, The plaintiff and the defendants Nos. 2 to 4 were said to have been present all along during the discussion and during the survey proceedings. And, the defendant No. I urged, the partition plan was prepared and the deed was executed by all the defendants with full knowledge. The plaintiff was not present at first because of his office works. It was said that the plaintiff promised to execute the deed later, but subsequently backed out. The defendant No. 5 admitted the execution before the Registrar who visited for registration on commission. The other defendants avoided registration, so registration had to be effected in accordance with the formalities of the Registration Law. As to the attitude of the defendant No. 5. it was the case of the defendant No. 1 that the defendant No. 5 proposed to liquidate her debts for payment of her share of the decretal dues under the mortgage suits by further allotment from her half share of the premises. That agreement by the defendant No. 5 was not performed by her, it was alleged.
6. The defendants Nos. 2 to 4 filed one set of written statement. They more or less accepted the plaintiff's case. They stated that the father of the defendants Nos. 2 to 4, that is Nanilal, paid the consideration money for the purchase of the land of Lovelock Street: The plaint case that Nanilal purchased with his own money in the benami of the defendants Nos. 1 to 5 was supported. It was pointed out that the defendant No. 1 was then a mere student and could not have any money. The defendant No. 5 also could not have any source. As to the assertion of the defendant No. 1 that his maternal grand father supplied the money, these defendants 2 to 4 mentioned that that maternal grand father himself was a very poor man and could not pay any money. In short, their case was that Nanilal had acquired the properties himself and exercised acts of possession. The partition deed relied on by the plaintiff was described as void. The defendant Nos. 2 to 4 were signatories in that deed. As to that, the explanation offered by them was that they had implicit faith in Sailendra and so they signed the deed without knowing the contents.
7. The defendant No. S. Sidheswari, filed a separate written statement. She had also taken a stand in line with the plaintiff. She averred that Nanilal had substantial income and had purchased the land of Lovelock S treet with his own money and also constructed the house thereon with his own money. She herself had no means. The defendant No. 1, it was stated, was then a school boy, 12 years old and could not have any independent income. The maternal grand father of the defendant No. 1 was also described as having been a very poor man. As to the mortgage deeds, she submitted that Nanilal himself took loans for meeting the marriage expenses of his daughter, Umasashi. as well as for establishing a Shiva deity in Benaras. As the original deeds stood in the names of the defendants No. 1 and 5, they, along with Nanilai, had to join in the mortgage deeds. All the 'B' Schedule lands, according to the defendant No. 5, were also purchased by Nanilal himself -- some in the names of his other sons and some in the name of the defendant No. 1. The defendant No. 5 also pleaded that she signed the partition deed without knowing its contents.
8. Title Suit No. 66 of 1971 was filed by Sailendra Nath Mukherjee against Sidheswari mainly. Her sons, Jatindra, Manindra. Saehindra and Girindra were made proforma defendants. That suit was founded on the contract contained in the partition deed. As stated before, the terms of the partition deed were that the suit premises would be partitioned in two equal shares between Sailendra and Sidheswari. On account of the dues of the mortgage suits, Sailendra claimed a sum of Rs. 10,000/- from Sidheswari. Rs. 11, 000/- was assessed as the total amount payable by Sidheswari to Sailendra on account of the mortgage suits and the corporation laxes. In lieu of this Rs. 11,000/-. some allotment out of the allotment of Sidheswari was made in favour of Sailendra. Sidheswari as per the terms of the partition deed, was to transfer and convey that portion to Sailendra by execution and registration of a deed of conveyance within fifteen days. As Sidheswari did not perform that part of the said contract, Sailendra filed Title Suit No. 66 of 1471 for specific performance of contract. Alternatively. Sailendra prayed for a decree for partition and for decree for specific sums.
9. The defendants Nos. I. 2, 4 and 5 in that suit i.e.. Sideshwari, Jatindra, Sachindra and Girindra filed one set of written statement. The defendant No. 3 in that suit, who was the plaintiff in Title Suit No. 65 of 1971 filed another written statement. The ease of the defendants Nos. 1. 2. 4 and 5 was that not only the plaintiff and the defendant No. 1 were liable to pay all the taxes, but that liability was also a liability for the pro forma defendants as well, inasmuch as they were also the co-owners in possession of the properties. That submission was made on the footing that the properties in suit belonged to Nanilal. With regard to the partition deed, it was described by them as fraudulent, void and inoperative. The suit, it was urged, was liable to he dismissed.
10. Similar was the contention of the defendant No. 3 in his written statement. It was denied by the defendant No. 3 in that suit that he was ever approached by the plaintiff for any settlement. With regard to the partition deed, he submitted that there was no occasion for him to arrange for executing the deed in the evening on 28-9-1957. Referring to the suit filed by him i.e. Title Suit No. 65 of 1971, he submitted that the partition deed was void, fraudulent and nullity and could not affect his right, title and interest.
11. The learned Subordinate Judge, 7th Court. Airpore disposed if both the suits by a common judgment. Title suit No. 65 of 1971 was dismissed on contest fate Suit No. 66 of 1971 was decreed in part on contest. In the last mentioned case, a decree for specific performance of contract was passed in favour of the plaintiff in that suit, i.e. Sailendra.
12. Against the judgment and decrees passed by the learned court below, two appeals were filed. F.A. No. 525 of 1974 was filed by Maaindra Nath Mukherjee, the plaintiff in Title Suit No. 65 of 1971. Sideshwari, Jatindra. Sachindra and Girindra filed F.A. No. 555 of 1974 against I he judgment and decree in T.S. No. 66 of 1971. That is directed against the decree for specific performance of contract against Sidheswari.
13. Two cross-objections have been filed by two sets of the heirs of Sailendara, since deceased. One cross-objection has been filed by the respondents 1(b). 1(f) and 6. The other cross-objection has been filed by respondents l(a). He) and llel. The cross-objections are mainly directed against the finding of the court below that Nanilal purchased the properties with his own money.
14. As indicated earlier, the learned court below found that Nanilal himself had actually acquired the Calcutta properties with his own money. But the learned court below disposed the suit on the ground that Nanilal himself never wanted to treat the Calcutta properties as his own. He had, in a way given effect to the doctrine of advancement in India. Finding that Sideshwari and Sailendra were the owners of the Calcutta properties, he refused to go into the ownership of the other properties on the ground that he lost jurisdiction to deal with the 'B' schedule properties, situated in a different district.
15. Mr. Dutta, appearing for the appellants, has argued that the evidence on the record clearly establishes that Nanilal had purchased the properties in the benami of Sailendra, Sidheswari and the other sons. He has next argued that the learned court below should not have invoked the doctrine of advancement. Nanilal, according to him, should be held to have been the real owner and on his death his interest devolved on his sons and Sideshwari.
16. Mr. Dasgupta, appearing for the respondent No. 1 group, has contended that the lower court should have found that Sailendra and Sidheswari had acquired the properties with their own money. The second branch of argument of Mr. Dasgupta has been that in any case, even if the consideration money came from Nanilal. he having always treated the properties as theproperties of Sailendra and Sidheswari the last named persons should he treated to be the real owners.
17. The first and foremost question is who paid the consideration money for the acquisition of the properties. It appears that the learned court below treated the 'A' scheduled and the 'B' schedule properties in isolation. The learned court below first concentrated on the 'A' scheduled properties and having found that 'A' scheduled properties belonged to Sailendra and Sidheswari, he refused to determine the colour of the 'B' schedule properties. We feel that the approach is not scientific. The totality of the circumstances has to be taken into consideration. Whether the 'A' schedule properties could have been purchased by Nanilal himself, may be determined upon a consideration of all the facts, including the factum of acquisition of the 'B' schedule properties. Now it is settled law that the burden of proving that the transfer is a benami transaction lies on the persons who asserts that it is such a transaction. If it is proved that the purchased money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary. The true character of the transaction is governed by the intention of the person who had contributed the purchase money. These guidelines were laid down in the decision , cited by Mr. Dutta. In , also cited by Mr. Dutta, it was further pointed out that although the onus of establishing that the transaction was benami was on the plaintiff, where it was not possible to obtain evidence which conclusively established or rebutted the allegation, the case must be dealt with on reasonable probabilities and legal inference arising from the proved or admitted facts. The same view was expressed in the decision reported in AIR 1949 FC 88. Bearing these guidelines in mind, we now propose to turn to the facts of this case.
18. Both sides have led oral and documentary evidence. On behalf of the plaintiff. Manindra six witnesses were examined. Besides, D.W. 1 and D.W. 2, who were the defendants in the first suit, supported the plaintiff's case. On behalf of the defendant. Sailendra, six witnesses were examined They are D.Ws. 1 to 8. P.W. 1 is Hiralal Mukherjee, a brother of Nanilal. His version is that Nanilal himself had purchased the lands of 1 Lovelock Street with his own money and raised structures thereon out of his funds. 1/1, Lovelock Street, was purchased later on. As to that, his version is that Nanilal himself had purchased the property and this witness took a loan from the cooperative society to make the fund available to Nanilal. There is a general statement that his elder brother. Nanibabu also acquired several properties in the district of Nadia. It is also affirmed by him that Nanilal possessed all the properties. This witness, however, is not very systematic. According to him, Nanibabu paid Rs. 3,000/-as consideration of one of the Kobalas. But in the next line he says that he does not remember whether he was present at the time of execution of the Kobalas. The house at Premises No. 1, Lovelock Street was constructed, according to him, in 1350 B.S. or so. But actually, the main portion was constructed in 1915. The next witness, P.W. 2, is a clerk of a school and his evidence is not important. P.W. 3, Narendara Nath Banerjee, is a cousin of the plaintiff and the defendants Nos. 1 to 4. He says that Nanilal purchased the property of No. 1, Lovelock Street with his own money in the benami of the defendants Nos. 1 and 5, in 1912. He further states that the defendant No. 1, Sailendra, was then only twelve years old and a student. Construction was started by Nanilal in 1914 or 1915. This witness claims that he looked after the constructions. This witness, as well as P.W. 1, states that the father of the mother of the defendant No. 1 was never affluent. But in his cross-examination, this witness has admitted that he was not present when the lands were purchased With regard to the construction, however, he claims that the payments to the labourers were made in his presence. He even looked after the construction, as stated by him. P.W. 4 is Manindra Nath Mukherjee himself. He was the plaintiff and he must support the plaint case. P.W. 5 is Heramba Chakraborty, son of one Aswini Chakraborty. He comes to prove that his father was a 'Nayeb' under Nanilal and looked after the Palpara properties. His evidence is to be weighed along with the evidence on the defence side. It is curious to note that during his cross-examination on behalf of Sailendra, it was suggested that his father was dismissed by Nanilal for his misconduct. The defence case was that Aswini was never the 'Nayeb' under Nanilal. So this suggestion to P.W. 5 in a way militates against the defence case. P.W. 6, Lalmohan Das, comes to prove that he rented a room above the garage from Nanilal Babu in 1943 and paid rent to him. Then D.W. 1 Girindra Nath Mukherjee the defendant No. 4 in the main suit) says that his father purchased the properties in the benami of the defendants Nos. 1 and 5. This witness had signed a partition deed between Sailendra and Sideshwari. As to that, his explanation during evidence has been that he signed the same without knowing the contents, having implicit faith in Sailen. He also avers that Nanila! mortgaged the property to meet the marriage expenses of Umasashi. D.W. 2 is Sidheswari Debi. She supports the plaint case. The witnesses coming to support defence case start from D.W. 3, Panchanan Majhi. He claims that he cultivates the lands of Sailendra on bhag basis and has taken settlement of orchard on falkar basis. He is emphatic that the sons of Sidheswari never possessed. He has even said he had to file a case against the sons of Sideshwari when they went to pluck mangoes. D.W. 4, Benoy Kumar Banerjee, is the Engineer Commissioner. He says that once he acted as Commissioner, being appointed by Court, and on another occasion to effect amicable partition. We are told by the witness that Sidheswari and Sailendra signed a letter requesting him to divide the entire premises in two halves. Ext. L is the plan of allotment prepared by him. According to him Sailendra. Sidheswari and her sons attended during the proceedings conducted by him. D.W. 5 is an employee of the Calcutta Corporation and his evidence is not important. D.W. 6 is Soumen Mukherjee, the son of Sailendara. He is in the category of parties. D.W. 7 is Amarendra Kumar Sanyal, an Advocate. His version is that he acted for Sidheswari and her sons. D.W. 8 is Chandi Pada Banerji. Nanilal was the father of the mother of this witness. The picture depicted by him is that Nanilal was in difficult financial circumstances. There were fifteen members in the family of Nani Babu during the period 1912 to 1915. We are told that Nanilal alone used to meet the expenses of the said family. On the other hand, he has tried to impress upon the court that Sailen had business. As to the acquisition of the Calcutta property, it is his categorical version that Bamapada Babu by selling ornaments of Sarojini financed the half portion of money for the purchase of the lands and construction of house. There, he has introduced a new case; the defendant's case is that Bamapada himself supplied the major part of the money for the purchase of the land and construction of house. There is no case in the written statement that Bamapada sold the ornaments of Sarojini, Sailen's mother, and the first wife of Nanilal.
19. This is the entire oral evidence on the point. The oral evidence is not sufficient to enable the court to come to a definite conclusion. On the side of the defendants, no witness has clearly proved that Sidheswari and Sailendra paid the consideration money. On the side of the plaintiffs, P.W. 1 and P.W. 3 have endeavoured to prove that Nanilal paid the consideration money. But P.W. 3 was not present when the lands were purchased. And P.W. 1's evidence is in some respect inconsistent. It is necessary, therefore, to look more closely to the documentary evidence on the record and the circumstances of the case. As already mentioned, when direct evidence is not available, or is hazy, the matter has to be decided on the basis of probabilities. We have to visualise a case where the properties might have been acquired either by Nanilal or by Sailendra and Sidheswari. One thing to be noticed is that it has never been shown clearly that Sideshwari had means to purchase properties. Sideshwari herself said that she had no independent source of income. Although she was a party, this statement of hers cannot be brushed aside, if we do not find on the basis of other cogent evidence that she had any independent income. The defence case is that Bamapada, the maternal grand father of Sailendra, had supplied the major part of the money for the acquisition of the properties. But it remains inexplicable why Bamapada, in that case, would acquire the properties in the names of Sailendra and Sidheswari. !t is unlikely that Bamapada would introduced Sidheswari, if he had advanced the money for the benefit of Sailendra. This aspect of Sideshwari's capacity has not at all been explained by the defendants. As to the capacity of Sailendra himself, Ext. 9 series, the letters written by Nanilal, show that he was expressing the lack of capacity to earn on the part of Sailendra. Exts. 9(m) and 9(p) clearly bear out Nanilal's lack of confidence about the earning capacity of Sailendra. Ext 9(s), another letter dated /-12-28, written by Nanilal, indicates that he had to pay municipal taxes and spend a sum of Rs. 57/- for two tyres. Ext 9(t) indicates that Nanilal was taking active interest in the Palpara properties. The letters indicate that nobody other than Nanilal could have acquired the properties, as there was much of anxiety over Sailen's lack of capacity to earn. They also support the conclusion that Nanilal was taking active interest in the properties and exercised acts of possession. Then come the different Kobalas, Exts. 26 series and Exts. K series. Exts. M & Nare the Kobalas in respect of the suit properties, namely properties of Lovelock Street. They no doubt stand in the names of Sailendra and Sidheswari and that is exactly what we have to decide: whether these properties were purchased by Nanilal in the benami of these two persons. Ext. K is a Kobala dated 6-8-21 in favour of Sailendra alone in respect of the Palpara properties. Ext K(1) is another Kobala dated 15-10-28 by Jogeswarm favour of Sailen for Rs. 400/- in respect of some Palpara properties. Apparently, this deed also stands in the name of Sailen alone. But along with that, we have to look into Ext. 15, accounts dated 144 and 16-10-28 of Nanilal. In Ext. 15, it is clearly mentioned that Nanilal paid in cash Rs. 412/- on account of purchase of property from Jogeswar. That suggests that although Ext. K(l) stood in the name of Sailendara, it was Nanilal who furnished the consideration money. Exts. K(2) and K(3) are the Kobalas dated 18-9-23 and 14-11-29 respectively in the name of Sailendra. They are regarding some items of the 'B' Schedule properties, i.e. the Palpara properties. Now the interesting feature about these transactions is that it has not been explained how Sailendra could find the money to purchase the properties. All the explanations offered on his behalf have been with regard to the Lovelock Street properties, it is said that Bamapada had s applied the consideration money. But no explanation has been given about Ext. K series. It is true that when the properties covered by Ext. K series were acquired, Sailendra had attained majority. But still, as we would have occasion to refer, there is no clear indication that Sailendra had earning capacity. It has already been referred to that in the letters, Ext. 9 series, Nanilal was all along expressing his anxiety as regards the lack of earning capacity of Sailendra. Then again, it is noticed that although the documents in respect of some of the Palpara properties stand in the name of Sailen, there are many other documents relating to the Palpara properties, standing in the names of the others ons of Nanilal. Ext. 26 is a sale deed dated 30-8-24 by Jatish Chandra Chatterjee and others in favour of Sailendra Nath Mukherjee and the other sons of Nanilal Mukherjee, including some minor sons of the said Nanilal Mukherjee. Manindra, Sachindra and Girindra were all minors at the time of the sale deed, Ext. 26, was executed in their names and in the name of Sailen. The pertinent question remains who supplied the consideration money for the minor sons. Undoubtedly, nobody other than Nanilal could have paid the consideration money at least for the minor sons. Ext. 26(a) is another Kobala dated 13-6-22 in favour of Sailendra, Jatindra and Manindra, who was then minor.
Ext. 26(b) is a Kobala dated 29-6-22 in the names of Sailendra, Jatindra, Manindra and Sachindra Manindra and Sachindra were then minors and represented by their father. Ext. 26l ct is the Kobala dated 25-10-24 in the names of Sailendra. Jatindra. Manindra. Sachindraand Girindra Manindra. Sachindra and Girindra were then minors. Thus, these transactions. Ext. 26 series, furnished clear intrinsic evidence that Nanilal paid the consideration money for purchasing properties in the names of his minor sons: for it is nobody's case that Sailendra or Sidheswari paid the consideration money for the minors in respect of the Kohalas, Ext. 26 series. It is evident, therefore, that Nanilal was in the habit of purchasing properties in the names of his sons, including minor sons. It is also clear that Nanilal had the means to purchase the properties. Therefore, the contention on behalf of Sailendra that Nanilal had no means to purchase thepropert ies of Lovelock Street, cannot be sustained. That is why the Lovelock Street properties cannot be considered in isolation and the other transactions have also to be taken into consideration, in finding out whether Nanilal had the means to acquire the properties. The learned court below made this mistake that he considered the Lovelock Street properties in isolation, not considering the other circumstances, furnished by the other transactions, Exts. 26 series and K series. Coming back to the Lovelock Street properties again, it is found that Sailen was then only twelve years or, at most, fifteen years old. On the other hand, Nanilal was in service and had some means. The defence case that Bamapada supplied the consideration money, cannot be accepted forseveral reasons. Firstly, it is not explained why Bamapada would be supplying money for purchasing property in the joint names of Sailendra and Sidheswari. Secondly, the case in the written statement has been that Bamapada himself had furnished the consideration money. But at the time of trial, a case has been developed that Bamapada sold the ornaments of his deceased daughter, Sarojini to find the money for purchasing the properties. Moreover, there are documents on record going to indicate that Bamapada himself was not in affluent circumstances. Ext. 29(a) evidence that Bamapada mortgaged his property by a mortgage deed dated 5-11-08. Ext. 29(b) is another mortgage deed dated 8-3-11 by Bamapada. By Ext. 29(c), Bamapada was again mortgaging on 11-/-13. Ext. 29(d) dated 23-8-16 is another mortgage deed by Bamapada. Then there is Ext. 29{e), showing that Bamapada once again mortgage his propertyon 10-6-18. Ultimately, by Ext. 29(f) dated 10-/-26. Bamapada sold his property to Jogendra as he was deeply in debt. Thus we find that right from 1908 to 1918. Bamapada was all along mortgaging his property. And ultimately he sold out his property in 1926. Clearly, that makes out a picture of utmost distress. It is unacceptable that such a person would come forward during the relevant period to supply money to Sailendra. Evidence has no doubt been led that Bamapada was a renowned artist. But that is a different matter. The documents on record clearly make out that although he was a renowned artist, he was in distress himself.
20. It comes to this that Bamapada could not come forward to help Sailendra to acquire property. It is also not acceptable that Bamapada would help Sailendra to acquire property not only in his own name but in the name of Sidheswari. If Bamapada goes out of the picture, then Sailen's capacity to acquire the properties becomes the pre-eminent question. So far as Ext. M, that is the land of Lovelock Street is concerned, it was impossible for Sailendra to acquire the properties at the age of twelve, or at most, fifteen. Even regarding the other properties, it is not shown that Sailen had sufficient income. Ext. I shows that there was a trade licence in the name of Sailen for doing some business and Ext E furnishes that some rent bill is in the name of Sailen, proprietor of Chatterjee and Mukherjee and Company. But it is not clear for how long the business of Sailen continued and what profits he earned. It is obvious, however, that Sailen was not in a position to make much earning. Ext 9 series, the letters from Nanilal, already referred to, disclosed that he was always expressing his anxiety for lack of ability on the part of Sailen to eara Mr. Dasgupta, the learned Advocate, appearing for the respondents, has sought to demonstrate that Nanilal himself had not much income. But it is an admitted fact that Nanilal was in service and ultimately was promoted to the post of Manager, Jail Depot. Ext. 31 is the history of the service of Nanilal. It has been contended that at the outset, he had a meagre pay. And in or about the time when the land of Lovelock Street was acquired, his pay was something between Rs. 90/- and Rs. 150/-. It has been argued that Nanilal had to bear the burden of a big family and had to pay house rent. It was suggested that after meeting the family expenses Nanilal could not have such saving as to enable him to acquire the land. But it is to be noted that the very fact that Nanilal had himself to bear the burden of a big family indicates that he had some income. Sidheswari herself has staled that Nanilal used to do some other works and augmenied his income And Ext. It shows that Nanilal made some extra incomes by way of commissions. What KM. 10) shows may not be a big sum but it at least shows that Nanilal had some extra incomes. Undoubtedly Nanilal was earning and that is not disputed. As against that. Sailen could not earn anything as he was in 1912 a minor and a student. Such being the position, the case has to be decided on probabilities. The decisions , , cited by Mr. Dutta, have already been referred to. These decisions clearly lay down that in matters where benami question is raised, the most important test is from whom the purchase money came. The real test is the source whence the consideration came. It has also been laid down 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. In thiscase, it isadmitted that Nanilal had some income. It is also established beyond reasonable doubt that at least in 1912, Sailendra had no income. And it stands out that Sidheswari, at no point of time, had any independent income of her own. In such circumstances, the reasonable probability would be that it was Nanilal and none else who could acquire the properties. Mr. Dutta has also referred to some other decisions for establishing his case that Nanilal was the person who acquired the properties in the benamis of others. The case reported in 3 Indian Appeals 144 (sic) lays down that the guideline in suchcases in India is to consider from what source the money comes with which the purchase money is paid. The decision reported in 6 Indian Appeals 36 (sic), referred to by Mr. Dutta. lays down that where a purchase of a real estate is made by a Hindu in the name of one of his sons, the presumption of Hindu Law is in favour of its being a benami purchase and the burden of proof lies on the party in whose name tt was purchased, to prove that he was entitled to the legal and beneficial interest in such purchased estate. Again, in 13 Indian Appeals 232 (sic) cited by Mr. Dutta the same principle is reiterated. It is laid down that in India, the criterion is to consider from what source the purchase money comes. It is also pointed out that the doctrine of advancement does not apply in India.
21. Mr. Dasgupta has referred to a number of decisions on the point of burden of proof as regards benami transaction. He has first referred to the decision, reported in 31 Cal WN 252 : (AIR 1926 PC 771. The principle enunciated is that the burden of establishing benami is difficult to discharge, but still the person who alleges that the property conveyed to another really belongs to him must prove his allegation and prove it beyond reasonable doubt. Undoubtedly that is the legal position. Again, the decision lays down that the burden of proving that a particular transaction is benami always rests on the person who asserts it and this burden has to be strictly discharged by adducing legal evidence of definite character. Still, Mr. Dasgupta has referred to other decisions on the same point: they are AIR 1977 SC 7%, (1866-67) 11 Moo Ind App 28 and 25 Cal WN 409 : (AIR 1921 PC 69). In all these cases, it has been laid down that the burden of proving that a particular transaction is a benami transaction, is on the person who alleges the same. This undoubtedly is the established principle of law and even the decisions cited by Mr.Dutta, lay down the same principle. It is a cardinal principle of law and nobody has ever disputed that principle throughout ages. But that does not mean that in considering whether a particular person has discharged the burden, the probabilities of the case would not be considered. This principle that the burden of proving the benami nature of a transaction lies on the person alleging the same, is not intended to be a technical or a rigid formula but a rational principle. It is a common sense view that has crystallised into legal dictum. We see that the plaintiff, Manindra has led sufficient evidence about Nanilal's capacity to acquire the properties. We see that Sailen, Sidheswari and the other sons of Nanilal, who were minors at the relevant times, could not have any means to acquirethe properties. The question of burden of proof is to be decided in these circumstances prevailing. We feel that on the evidences and circumstances placed by the plaintiff, it has been shown beyond reasonable doubts that it was Nanilal only, who could acquire the properties. These transactions must be held to be benami transactions, unless it appears that Nanilal made the purchases for the benefit of the others or that he intended such others to be the owners from the very beginning.
22. Having found, therefore, that Nanilal made the purchases with his own money, it is now necessary to consider whether he intended to make the persons in whose names the purchases were made to be the real owners. It has been pointed out before that the doctrine of advancement does not apply in India. Still, if the person supplying the money intended that the persons in whose names the purchases were made should be the real owners, there should be no reason to refuse to recognise that. Mr. Dasgupta has referred to the decision for the principle that though consideration for sale transaction proceeded' from the husband, is subsequent conduct, showing his admission that title to the property vested in wife cannot be brushed aside. In that case the purchase by the wife cannot be held to be benami for husband but it must be held that she herself was the owner of the property. That undoubtedly is the position. If the wife herself purchased the property with the help of the fund supplied by the husband, then the question of benami would not come in. But once it is found that-a property was purchased with the money supplied by one in the name of another, it must be shown clearly that the person .supplying the money clearly intended the person in whose name it is purchased to be the real owner. In this case, we do not notice any such clear intention on the part of Nanilal. Several mortgage deeds executed by Sailendra and Sidheswari have been referred to for the purpose of showing that Nanilal intended that the persons would become the real owners. Ext. V is a mortgage deed dated /-/-27, executed by Sailendra, Sidheswari and Nanilal. Ext. V(l) is another mortgage deed executed by Sailendra. Nanilal had signed the deeds as a confirming party. He was declaring that Sidheswari and Sailendra were the real owners. In Ext. V(1) it is recited that the money was needed for meeting the marriage expenses of the sister of Sailen, Hiransashi. Then Ext. HH is another mortgage deed dated 9-12-35, executed by Sailen, Sidheswari and Nanilal. Now it is not normal that Nanilal would be regardless about the marriage of his daughter and it would be the anxiety of only the brother or the mother. It should be Nanilal's anxiety to see that the marriage expenses of his daughters would be met. It is most probable that Nanilal himself was raising the money for meeting the marriage expenses of his daughters. It may be noted that Ext. HH coincides with the marriage of Umasashi, as would be evident from Ext. 9(i). The conclusion imposes itself that it was Nanilal who was in fact mortgaging the properties to raise the moeny for the marriage expenses of his daughters through Sailendra and Sidheswari. Nanilal had to sign the deeds of mortgages, to assure the creditors. And the deeds had to be executed by Sidheswari and Sailendra, because the original title deeds stood in their names. These mortgage deeds could not be otherwise, because once a benami colour comes in, that colour is transferred to subsequent instruments in respect of the said property. Ext. U is another mortgage deed dated 31-5-36. That was executed by Sailen, Sidheswari and Nanilal. Once again, there are recitals that Sailen and Sidheswari needed money and took a loan of Rs. 4,000/- from one Haridas Dey. Being in need of money for the purpose of the marriage of the sister of Sailen and the daughter of Sidheswari and for paying off other debtsand for meeting the household expenses, they again were mortgaging the property. Nanilal was admitting that Sailen and Sidheswari were the owners of the property. It has already been observed that once it is found that Nanilal acquired the property in the benamis of Sailen and Sidheswari, in subsequent transactions he had to take stands in accordance with that apparent colour. The statements of Nanilal in such documents cannot be taken to be his admissions that Sidheswari and Sailendra were the real owners. It is also to be observed that if indeed Nanilal had no interest in the properties, there could not be any occasion for his signing the deeds. The mortgage deeds, executed by the three persons, cannot go to show the intention of Nanilal. , - .
23. As regards other acts and conducts of Nanilal, we find that indeed he indicated the intention' that the properties would remain his properties during his lifetime. Ext. 9 series, the different letters, have already been referred to. But once again some of these letters may be referred to for finding out the intention of Nanilal. From Ext. 9(m) it appears that some grievance was made about Aswini's not rendering any account in respect of the property at Palpara. It has" earlier been mentioned that Aswini was said to have been an employee under Nanilal for looking after his properties, And P. W. 5 was appearing to confirm that his father. Aswini, was a Naib under Nanilal. From Ext. 9(s), we find that Nanilal said he had to pay taxes. Ext. 9(t) also indicates that Nanilal was taking interest in the Palpara Properties. Ext. 45 is a receipt in favour of Nanilal for the rent of one room above the garage. Exts. 45(a), 45(b) and 45(c) are other receipts for rent of rooms. Ext. 4 is a letter from Jatin to Nanilal. It discloses that Jatin was looking after the Palpara properties on behalf of Nanilal. All these clearly demonstrate that Nanilal himself was taking active interest in the properties. It is indicated nowhere that Nanila! intended that Sailen and Sidheswari would be the owners of the properties. Once it is found that Nanilal had paid the consideration money, it should be presumed, unless a contrary intention is shown, that he acquired the properties for his own benefit. That contrary intention is not indicated anywhere. Rather, the documents and records go to indicate that Nanilal treated the properties as his own.
24. Mr, Dutta, appearing For the appellant, has referred to the decisions and for showing that the doctrine of advancement was not applicable in India However, it is not the question of advancement strictly. Even if the doctrine of advancement does not apply in India, it is open to a party to show that the person supplying the money intended another to be the owner of the property. And in that connection, the case , cited by Mr. Dasgupta, has already been referred to.
25. We have, however, found that Nanilal himself purchased the properties with his own money. We have also found that Nanilal did not express any intention to the effect that Sidheswari and Sailendra should be the real owners of the properties. On the contrary, there are pieces of evidences going to indicate that Nanilal himself asserted his title and possession. Therefore, the test of intention on the part of the person supplying the consideration money does not go in favour of Sailendra,
26. Mr, Dasgupta has next contended that the subsequent conduct of Sidheswari and her sons also indicates admissions on their part that Sidheswari and Sailendrawere the real owners, to the exclusion of the other sons of Nanilal. And, in that connection, he has placed much reliance on Ext. L the partition deed dated the 28th of Sept., 1957. By this partition deed, Sidheswari and Sailendra purported to divide the Lovelock Street properties in half and half shares. Sidheswari was thefirst parly and Sailendra was the second party. Jatindra. Manindra, Sachindra and Girindra were described as the third and confirming parties. However, Manindra was not a signatory to the deed After dividing the properties in half and half shares, another allotment in favour of Sailendra was made out of the allotment in favour of Sidheswari, in lieu of the amounts said to be due to Sailendra from her on account of I he money paid for the mortgage decrees and municipal taxes. The third parties declared that they had no rights, ownerships and interests in the properties. They further declared that Sailendra and Sidheswari had each eight annas shares. Mr. Dasgupta has contended that this document itself should be treated as conclusive evidence that the properties belonged to Sailendra and Sidheswari. Several decisions have been cited by Mr. Dasgupta in support of his contention. Firsi he has referred to the decision . It enunciates the principle that when documents arc 'marked an admission without reservation, the contents are not only evidence but are taken as admitted, the result being, the contents cannot be challenged either by way of cross-examination or otherwise. Next the decision has been cited. It has been pronounced in that decision that admissions are substantive evidence by themselves, though they are not conclusive proof of the matters admitted' Admissions, duly proved are admissible in evidence irrespective of whether the party making them appeared in the witness box or not and whether such party when appearing as witness was contradicted with those statements. The next decision cited by Mr. Dasgupta is the case . That decision is authority for the principle that an admission clearly made is the best evidence against the party making it and though.not conclusive, shifts the onus on to the maker. The case reported in (1906) 34 Ind App 27, also cited by Mr. Dasgupta, lays down the principle that on proof of admission contained in a deed of gift and a power of attorney, to which the plaintiff, but not the defendant, was a party, that the plaintiff had described himself as such adopted son, the adoption must be taken to be established in the absence of satisfactory proof by the plaintiff that the admissions were untrue in fact. In connection with Ext. L, it has been sought to be made out by Sidheswari and the other sons that they signed the document without knowing what it was about. Sidheswari herself has deposed that she had no knowledge of the partition deed of 1957 and that Sailcn and Durga obtained her signatures without letting her know its contents. Further, according to her, the document was not read over or explained before her. Girindra, D.W. 1, has also deposed that himself and the defendants 2, 3 and 5, i.e. Jatindra, Sachindra and Sidheswari signed a deed of partition without knowing its contents and relying fully on the representation by Sailendra to the effect that their signatures would do them good and no harm. But it is hard to accept that Sidheswari and her sons signed without knowing the contents of the document. The Engineer Commissioner, D. W. 4, has deposed that Sidheswari and her sons attended the proceedings. Sidheswari might be an unsophisticated lady but her sons were educated. Both Sidheswari and Sailendra signed the letter, Ext. UU, for appointing Sri B. K. Banerjee, the Chartered Engineer, for drawing up the partition proceedings. After all these, it cannot be contended that Sidheswari and her major and educated sons were unaware of the purport of Ext. L, though they might have had misapprehension about the legal position. We can proceed on the -basis that Ext. L was voluntarily signed by Sidheswari and her sons. It is now to be considered what legal effect it has. Now, the decisions cited by Mr. Dasgupta clearly lay down that admissions are substantive evidence of the facts admitted and that they are the best evidence against the party making it. But it is also to be noticed that these .decisions are about the effect of admissions of facts. It has never been held: that admissions can change the course of law. Once it is found that Nanilal acquired the properties himself and he was the ownerl thereof, on his death, by the ordinary law of devolution, his heirs would become the owners of the properties. Therefore, on the death of Nanilal. Sidheswari and his five sons automatically became the owners of the properties. Each acquired l/6th interest in the properties. Any subsequent admission of the persons could not change the legal position. So far as the admissions of the sons of Sidheswari in Ext. L are concerned we do not see of what effect they have. If they had no interest whatsoever, their statements of declaration could not be considered strictly as admissions within the meaningof CL (1) of Section 18 of the Evidence Act. And if they had interest, by their declarations, they could not be divested of their title. Admissions cannot put back the current of events or nullify .the effect flowing therefrom. That is the position : admissions have serious impact upon the facts in question, but they cannot affect the law. It is well known principle that title cannot he founded on admissions. Mr. Dutta, appearing for the appellant, has referred to the decision reported in AIR 1966 SC605 for making the position clear that title cannot pass by mere admission. The case reported in(1912) 16CalLJ436, also cited by Mr. Dutta is regarding the effect of release. It has been observed that no title vested in the plaintiffs in that case by admissions. Then again Mr. Dutta has referred to the decision in 22 Cal LJ 380 : (AIR 1915 Cal 819), The principle enunciated is the same and it is that a release does not operate as a conveyance. Yet another case has been cited by Mr. Dutta and it is reported in 23 Cal LJ 26 : (AIR 1916 Cal 136). It is laid down that a release cannot operate to transfer title, because title to land cannot pass by a mere admission. The decisions reported in (1906) 4 Cal LJ 22 and AIR 1951 Nag 327. cited by Mr. Dutta, are to the same effect. The position is clear : admissions cannot create title, though admissions may have a great bearing on the factual aspect. Therefore, whatever admissions may be contained in Ext. L, the legal position cannot be affected, once it is found that the properties belonged to Nanilal and Nanilal alone. The title that accrued in favour of the wife and the sons of Nanilal could not be liquidated or cancelled by Ext. L. whatever may be the recitals therein.
27. There is another aspect of the matter. It has been noticed before that Manindra, the original plaintiff, was not a signatory to the deed, Ext. L. There are no admissions of his and he could not be bound by the recitals of Ext. L. The matter was liable to be reopened at his instance. He, not being bound, could show that he acquired l/6th interest in the properties as an heir to Nanilal. If the matter could be reopened at his insfance, the whole matter was liable to be reopened There cannot be one result for him and a different and contrary result for the rest The truth, once arrived at, could not be mutated and divided That would lead to a mathematical fallacy also. Therefore, as Manindra at least was not a party to Ext. L. the whole matter is to be considered, notwithstanding Ext. L.
28. Ext. ZZ is the certified copy of, the previous deposition of Sachindra in a previous case. There, Sachindra admitted during cross-examination that his mother got eight annas undivided share in the disputed property and Sailendra got the other eight annas share in the same. For reasons already discussed, this admission would be of no consequence. It would not affect even Sachindra's interest, if already accrued, and undoubtedly the other persons would not be bound by his statement. So, neither Ext. L nor Ext. ZZ can have the effect of nullifying the interests acquired by the respective heirs of Nanilal Mukheriee.
29. Mr. Dasgupta has next argued that Sidheswari and her other sons would be estopped from denying the eight annas interest of Sailendra. We do not see how the plea of estoppel can be set up against the claim of Manindra, Sidheswari and her other sons. Section 115 of the Evidence Act presupposes that a person was induced to change his position on the basis of any declaration, act or omission on the part of another. Whatever might have been stated by Sidheswari and others, Sailendra was not induced to change his position. And obviously, estoppel has reference to facts and cannot have any impact upon law. Mr. Dasgupta has referred to the decision in support of his contention that Sailendra's opponents must be estopped from denying his eight annas title. The decision cited does not render any help to Mr. Dasgupta. There, a mortgage of a house was executed by a wife in her own capacity as owner thereof and it was attested by her husband. It was held that the husband was estopped from denying the title of the wife and from claiming any share in the mortgaged property. That was a decision rendered with reference to the facts of the particular case. It has not been laid down that even though the legal position was otherwise, the person was estopped from setting up his legal title. Another case cited by Mr. Dasgupta is . That case was. however, on a different point: it was the case of promissory estoppel. The decision cited by Mr. Dasgupta has no application to the facts of the present case. On the other hand the cases cited by Mr. Dutta on the point are quite apt. He has first referred to the decision . It us observed there that there must be a representation, that the party believing it must have been induced to act on the faith of it and the latter must have acted to his prejudice. It has already been pointed out that no case is made out that Sailendra was induced to change his position (o his prejudice, The case ), next cited by Mr. Dutta, also makes the point clear that it must be shown that the position of a party was allered by reason of the representation or conduct of the other. Last of all. Mr. Dutta has referred to the decision . It is very clearly settled that a man is not to be estopped from asserting a right which he had said that he would not assert. Eight tests have been laid down in that decision : (i) there must be a representation by a person or agent to another in any form; (ii) the representation must have been of the existence of a fact and not of promises de futuro or intention which might or might not be enforceable in contract; (iii) the representation must have been meant to be relied upon; (iv) there must have been belief on the part of the other party in its truth; (v) there must have been action on the faith of that declaration, act or omission: (vi) the representation or conduct or omission must have been the proximate cause of leading the other party to act to his prejudice; (vii) the person claiming the benefit of estoppel must show that he was not aware of the true state of things: (viii) only the person to whom the representation was made or for whom it was designed can avail himself of it. These tests are not satisfied in our ca.sc in hand. The representation, in this case, we like a promise and not with regard hi the existence of a fact. Sailendra knowing the facts that theproperties belonged to Nanilal. could not have been misled by the representation, if any. And undoubtedly, he was not induced to change his position by that representation. We think that the plea of estoppet is completely out of way.
30. Last of all Mr. Dasgupta bus tried to invoke the principle of res jutheata. Ext. II(d) is the order of t lie learned subordinate Judge decireeing Sailendra's suit against Sidheswari for contribution. Two decisions have been cited by Mr. Dasgupta in connection with the point of res judicata. The first decision is . It is to the effect that even in an ex parte decree, it will operate as res judicata in respect of all grounds of defence against the actual claim in the suit as also all matters inconsistent with such claim which might and ought to have been raised. It has not been shown that Sidheswari had raised the plea that the properties belonged to Nanilal. Whether or not the properties belonged to NanilaL was also not involved directly. The other case cited by Mr. Dasgupta in this connect ion is reported in (191I) 13 Cal LJ 38. It is observed there that when an issue has been raised on a disputed point in a rent suit and has been heard and finally decided, the decree, even though it has been passed ex parte, operates as res judicata in a subsequent suit. As said earlier, it has not been shown in this case what were the defences of Sidheswari or even what might have been the defences involved. The cases cited do not establish the point of res judicata in this case. And. after all. all these are academic questions in view of the fact that the other persons were not parties to any such earlier proceedings. Manindra and the sons of Sidheswari were not parties and there cannot be any question of res judicata. so far as they are concerned.
31. All the points raised by Mr. Dasgupta as against the claim of the original plaintiff, Manindra. in Title Suit No. 65 of 1971 for partition fail. On the death of Nanilal, Manindra. Sailendra. Jalindra Sachindra, Girindra and Sidheswari each got 1/6th share. Manindra's claim for partition with respect of his l/6th share in the properties was irresistible. The suit, so far as the claim for partition is concerned, should have been decreed. V. A. No. 528 of 1974 against the judgment and decree in T. S. No. 65 of 1971 dismissing the suit entirely, must be allowed to that extent. 1 here is a prayer for accounts also in that suit. We feel that that prayer cannot be allowed in the circumstances of the case. The evidenee of Manindra himself (P.W. 4) has been that after the death of his father he managed the property. It is also stated by him that his younger brother also managed the properues but it long with Sailendra. In his evidence, Manindra did not claim for a decree for accounts. Last of all Exts. 13(a) to 13(g) series, the receipts show that Sachindra also exercised acts of possession. In such state of uncertainty, the plaintiff cannot get any decree for accounts against Sailendra on the footing that he alone managed the properties. The claim for accounts in Title Suit No. 65 of 1971 must be disallowed.
32. Now we turn to the other suit, i.e. Title Suit No. 66 of 1971. That was a suit by Sailendra against Sidheswari Her sons were made pro forma defendants. Sailendra claimed for a decree for specific performance of the contract contained in the partition deed against Sidheswari, the defendant No. 1. There was an alternative prayer for partition and for certain specific amounts. The learned trial Court has decreed Sailendra's suit i.e., Title Suit No. 66of 1971 in part. The plaintiff's got a decree for specific performance of contract contained in the partition deed dated 28-9-57 and the defendant No. 1 was directed to execute and register a conveyance in respect of the portion marked 'C in the plan attached to the said deed of partition. The defendant No. 1 was further directed to deliver possession of the same to the plaintiffs within three months from date, failing which the plaintiffs were given liberty to get the conveyance executed and registered through Court by executing the decree. The plaintiffs' alternative prayer for a decree of partition and recovery of some amounts from the defendant was dismissed.
33. The decree for specific performance of contract is liable to be set aside at once, as a consequence of our decision in F. A. No. 525 of 1974 arising from Title Suit No. 65/71 (No. 107 of 1957). Specific performance of contract was claimed on the basis of the partition deed dated 28-9-57. It has been found in connection with the other appeal that the partition deed, Ext. L, cannot survive and cannot have any binding effect. By the partition decree, the property was first divided between Sailendra and Sidheswari in half and half shares and out of the shares of Sidheswari some portion was again agreed to be transferred to Sailendra in lieu of the expenses incurred for payment of Municipal taxes and for liquidating the mortgage decrees. The question of second allotment in favour of Sailendra out of the allotment in favour of Sidheswari cannot arise, because the whole basis of this process of allotment is knocked out. If the partition contemplated by Ext. L itself fails, there cannot be any question of further allotment on that basis. The plaintiff, Sailendra, could not get any decree for specific performance of contract. That prayer was liable to be dismissed. The learned Subordinate Judge was wrong in passing the decree for specific performance of contract. As regards the alternative prayers for partition and for certain amounts, the learned Subordinate Judge disallowed the same. So far as the prayer for partition is concerned, there will be a decree for partition in accordance with the findings in Title Appeal No. 525 of 1974. But that partition will be according to the shares of the parties determined in that appeal and not according to the claim of Sailendra in Title Suit No. 66 of 1971. That disposes of the matter of partition. So far as the decrees for specific amounts are concrned. we do not find what is the basis of the claims. First, there is a pray er for a decree of Rs. 6,506/-, then there is a prayer for a decree for such amount as the plaint iff would be entitled to recover by way of contribution. Again there is a prayer for decree of contribution for Rs. 6,506/-. There is no clarity about the prayers and their basis. Sailendra could not get any decree against Sidheswari alone for the amounts paid in connection with the mortgage decrees. Sidheswari alone would not be liable for the amounts, if the property belonged to all. Therefore, the claim of Sailendra for certain amounts against Sidheswari alone on account of sums paid to liquidate the mortgage decrees and to meet the corporation tax cannot be accepted. Even if Sailendra paid such sums, that would be the liability of the whole estate and not of Sidheswari alone. But Sailendra was entitled to get one amount in respect of the decree in his favour in contribution suit. Ext. 111(1) is the ex parte decree against Sidheswari in contribution suit, money suit No. 21 of 1955. From the copy of the order sheet, it appears that the suit was decreed ex parte. That ex parte decree was taken into consideration in Ext. L, the partition deed, containing some agreements. That part of the contract in respect of the decree in the contribution suit is separable and enforceable in law. The rest of the contract, as contained in Ext. L, is separable and unenforceable in law. When there is a solemn decree of the Court against Sidheswari. and when a contract was made in respect of that part as well, it would be unfair to deprive Sailendra of the fruits of that decree. Although the suit was decreed on 1/-8-57, Sailendra did not claim relief by executing the same. Instead, Sailendra made it a subject-matter of a fresh contract, Ext. L. It is true that the learned Court below dismissed the alternative prayer of Sailendra for partition and for recovery of the amounts. There is no appeal against that dismissal and there is no cross-objection too. Sailen possibly could not file any cross-object ion, because his first prayer itself was allowed. But when the first prayer for specific performance Ls being dismissed by this Court, .that part of the alternative prayer, which is sustainable in law, can be allowed by this Court under Order 41, Rule 33 of the C.P.C., because one is involved in the other. Under Order 41, Rule 33, C.P.C., the appellate Court shall have power to pass any decree notwithstanding that the appeal is as to part of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have failed any appeal or objection. So a decree for an amount of Rs. 4,494/- is to be passed on the basis of Sailendra's suit against Sidheswari. Ext. III(l) has been referred to to show that the ex parte decree was passed against Sidheswari. As regards the amount, para 3 of Sailendra's suit has not been denied by the defendant. Thus the amount of Rs. 4,494/- is settled. Both Sailendra and Sidheswari are dead. There will be a decree for this amount in respect of Sailendra's suit, represented by his heirs, against Sidheswari's heirs, to the extent of the assets of Sidheswari that have come into their hands. F. A. No. 555 of 1974 is to be allowed accordingly.
34. The cross-objections against the findings of the learned Court below that Nanilal purchased the properties with his own money must be dismissed, since we are in agreement with the learned Court below that Nanilal himself had purchased the properties with his own money.
35. The net result is this that F. A. No. 525 of 1974 is to be allowed in part of contest without costs. The judgment and decreeofthe learned Court below, dismissing the Title Suit No. 65 of 1971 are to be set aside and the suit is to be decreed in part for partition, in accgrdance with the shares of the parties. Here, it is necessary to settle the shares of all the parties. We have found that the properties belonged to Nanilal. On his death Sidheswari, Sailendra, Jatindra, Sachindra, Girindra and Manindra each got 176th interest in the property. That is to say, the original plaintiff and the original parties acquired 176th interest each in the properties. Now after the filing of the suit many of the original parties thed. Their interests must have devolved upon their heirs. It is necessary to settle the position, as obtaining on the present day, instead of driving the parties to settle their matters again by other proceedings. Sidheswari, the original defendant No. 5 in the partition suit thed, leaving several heirs. Sidheswari left four sons. She had also daughters. Sudhasashi, Hiransashi, Umasashi and Sefali. On her death, therefore, each of the sons got 1748th share from her. The sons had acquired 176th share originally and then acquired 1748th share on the death of Sidheswari. That is to say, each of the sons acquired 3/16th share in the properties. So, Manindra, the original plaintiff in T.S. No. 65 of 1971 got 3716th share in the suit properties and a partition decree in respect of that share is to be made. It is noticed that Manindra claimed only 1/6th share, but now that share is found to have been augmented That is to say. he, or rather, his heirs would be getting more shares than claimed originally. But that would be no hindrance, since in a partition suit, all the parties are in the position of counter claimants. Moreover, the Court cannot fail to take notice of the subsequent developments. And again, under Order 41, Rule 33, C.P.C., the appellate Court can pass the appropriate decree for the ends of justice. Therefore, there would be partition in respect of Manindra's 3/16th share in the properties. Manindra is since dead and his brother, Girindra, has been substituted in his place. It has been submitted that Girindra succeeded Manindra on the basis of a Will. The learned Advocate for the respondent has submitted that the Will has not been probated That, however, poses no problem. Will or no will, Girindra has been substituted in place of Manindra as his legal representative. Under the definition clause of legal representative, as occurring in Section 2(11) of the C.P.C., legal representative means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased. Girindra is representing the estate of the deceased, Manindra. So the decree for partition can very well be passed in favour of Girindra, as representing the estate of Manindra. Then comes the branch of Sidheswari. It has already been observed that Sidheswari had four sons and four daughters. Of the daughters three are dead. Each of the daughters would have got l/48th share. Sefali Banerjee, the respondent No. 5(5) got l/48th share. Sudhasashi, the daughter of Sidheswari thed, leaving Reba Banerjee, Hindol Chatterjee, Kalyani Banerjee and Bishnu Chatterjee. As Sudhasashi had predeceased 'Sidheswari, they straightway got the proportionate share from Sidheswari. That is to say, Reba Banerjee, respondent No. 5(8), Hindol Chatterjee, respondent No. 5(6), Bishnu Chatterjee, respondent No. 5(7} and Kalyani Banerjee, respondent No. 5(9) each got I/192nd share from Sidheswari. Hiransashi left Animesh Banerjee, Asima Mukherjee and Anima Mukherjee. They were respondents Nos. 5(10), 5(11) and 5(12) respectively. They each got I/144th share. Animesh Banerjee, the respondent No. 5(10) again thed leaving Chhabi Banerjee and Orpita Banerjee. They are respondents Nos. 5(10)a and 5(10)b respectively. They got l/288th share each. Asima Banerjee, the respondent No. 5(11) also thed, leaving the respondents Nos. 5(11)(1) to 5(11)(4), i.e., Pradip, Prabir, Sulekha and Darika Mukherjee. They each got 1/576th share. Anima gets l/144th share. The respondent No. 5(13), Smritikana Ganguli, the daughter of Umasashi, also thed, leaving Sushama Ganguli, respondent No. 5(13) a, Ashoke Kumar Ganguli, respondent No. 5(13)b, Ananta Kumar Ganguli, respondent No. 5 (13)c, Amar Ganguli, respondent No. 5(13)d, Apurba Kumar Ganguli, respondent No. 5(13)e, Shyamali Mukherjee, respondent No. 5(13) f, Santi Banerjee, respondent No. 5(13)g and Dipali Das, respondent No. 5( 13)h, They would each get 1/384th share. Sailenclra, the original defendant No. 1 in Title Suit No. 65 of 1971 thed on 4-3-69, leaving the respondents Nos. l(a) to 1(f) as his heirs. They were substituted in his place. Of them, Umasashi, the widow of Sailendra, thed later leaving respondents Nos. 1(b) to l(f). So these respondents l(b) to l(f) each got l/30thshare out of the l/6th share of Sailendra. These would be the respective shares of the parties. Title Suit No. 65 of 1971 is to be decreed in a preliminary form for partition according to the shares. They prayer for accounts in Title Suit No. 65 of 1971 is to be dismissed
36. F. A. No. 555 of 1974 is also to be allowed. The judgment and decree of the learned Court below for specific performance of contract will be set aside and instead there will be decree for an amount of Rs. 4,494/-on account of contribution against Sidheswari's heirs, being respondents Nos. 5 series. They would be liable for this amount to the extent of the estate of Sidheswari coming into their hands. The other prayers in Title Suit No. 66 of 1971 would stand dismissed.
The cross-object kins are also to be dismissed.
37. Thus F. A. No. 525 of 1974 is allowed on contest. The judgment and the decree of the learned Subordinate Judge, 7th Court, Alipore, in Title Suit No. 65 of 1971, dismissing the suit on contest with costs to the defendants are hereby set aside. The suit of the original plaintiff, Manindra Nath Mukherjee, now represented by Girindra Nath Mukherjee, for partition is decreed on contest. The 3/16th share of the original plaintiff, now represented by Girindra Nath Mukherjee, in the suit properties, is hereby declared The parties do amicably partition the suit properties and the plaintiff (now Girindra) be given exclusive possession to the extent of the share declared in his favour within thirty days from this day. Failing that the substituted plaintiff will have the liberty to apply for theappointment of an Advocate Commissioner for effecting partition by metes and bounds and for making the decree final. The plaintiffs prayer for accounts in Title Suit No. 65 of 1971 is dismissed.
38. F. A. No. 555 of 1974 is also allowed on contest. The judgment and decree of the learned Subordinate Judge for specific performance of contract in favour of Sailendra and against Sidheswari in T.S. No. 66 of 71 are hereby set aside. Instead, a decree for an amount of Rs, 4,494/- is passed against the respondents 5 series, the heirs of Sidheswari. They would be liable to the extent of their shares acquired in respect of the estate of Sidheswari. The other prayers in Title Suit No. 66 of 1971 are dismissed on contest.
The cross-objections are also dismissed.
39. We make no order for costs at any stage and the parties are to bear their own costs up to this stage.
Sankari Prasad Das Ghosh,J.
40. I agree.