Patna High Court
Sheikh Ahmed Husain Alias Muhammad ... vs Sheikh Ghulam Ali Ashgar on 9 August, 1919
Equivalent citations: 52IND. CAS.866, AIR 1919 PATNA 313
JUDGMENT Dawson Miller, C.J.
1. This is an appeal by the defendants from the decision of the Officiating District Judge of Muzaffarpur, dated the 24th September 1917, reversing a decision of the Additional Subordinate Judge, dated the 24th February 1917.
2. The suit was instituted by the plaintiff on the 10th June 1915 claiming a declaration of title to a 4 annas 13 gandas 1-cowrie 1-krant share of Mauaa Chak Kazi Nizim bearing Touzi No. 10005 recorded in the name of the defendants as proprietors, and confirmation of his possession. He further claimed a declaration that he was entitled to get his name registered in the mutation department in respect of the disputed share and the removal of the names of the defendants and an injunction restraining them from proceeding with a partition suit before the Collector in respect to the share in dispute. The plaintiff is admittedly the proprietor of the remaining II annas odd comprising 16 annas of the Touzi number in question. The entire property was originally an 8-annas pucca share of the said village and belonged to one Sheikh Kutubnddin, the ancestor of both the plaintiff and the defendants. Kutubuddin left three sons and one daughter, who upon his death succeeded to his 8-annas share of the property, each of the sons taking 2 annas 6 gandas 2 cowries 2 krauts and the daughter 1 anna. One of the sons, Kasim Ali, is the grandfather of the present plaintiff. Another of the sons, Zahur Hussain, is the grandfather of the defendant No. 1. The third son Athar Ali transferred his share to his widow Bibi Rihiman by a baimokasa deed in the year 1312. The plaintiff's case is that Bibi Rahiman acquired in addition to the share of her husband the 1-anna share of Bibi Bahorun, the daughter of Kutubuddin as well as the 2.annas 6-gandas odd share of Zahur Hussain by transfer from his son Bande Ali, the father of the defendant No. 1, that Kasim Ali's share passed to Muhammad Haji and Muhammad Makbul, his two sons, the father and uncle of the plaintiff, and the latter having died his share as well as that of Muhammad Haji devolved upon him, the plaintiff, that Bibi Rahiman transferred the whole share which she had acquired from her husband, her sister-in-law Bibi Bahorun and Bande Ali, amounting to 5 annas 13 gandas odd, to Muhammad Haji and Muhammad Makbul, the father and uncle of the plaintiff, in the year 1855. The uncle died childless and consequently in due course the whole 8-annas share originally held by Sheikh Kutubuddin thus cams into the possession of the plaintiff on the death of his father Muhammad Haji. This 8-annas share, which was part of Touzi No. 1162 of the village in question was in the year 1863 formed into a separate patti bearing Touzi No. 10005. This partition was made at the instance of the plaintiff's father Muhammad Haji, and the plaintiff's case is that his father and uncle remained in undisturbed possession of the whole property down to the year 1876. In that year the entire patti was brought to sale in execution of a decree obtained by one Mathura Das against the plaintiff's father and uncle and was purchased by one Nandan Lal. Before the sale objections were taken to the attachment of the property in the name of Bande Ali, claiming as proprietor of the 2-annas 6 gandas odd share which be had inherited from his father, and by two sisters of the plaintiff's father under Section 278 of the old Code of Civil Procedure. These objections were disallowed and two regular suits ware, instituted on behalf of the respective objector setting up a claim to portions of the property. Notwithstanding these suits, however, the sale proceedings were continued and the property was sold and purchased by Nandan Lal. The decree-holder Mathura Das was originally the principal defendant in these suits, but after the sale the auction-purchaser Nandan Lal was made the principal defendant. The judgment-debtors, the plaintiff's father and uncle, were also defendants in the suit. The suit brought in the name of Bande Ali was subsequently settled by the auction-purchaser confessing judgment in favour of the plaintiff Bande Ali and it was ordered that according to the confession of judgment by Nandan Lal, a decree for declaration of title in favour of Bande Ali should be passed. The plaintiff's case with regard to this suit and the circumstances attending it is that it was in the first instance an attempt instigated by his father and uncle to endeavour to save their property from attachment by setting up Binde Ali as a claimant to the 2 annas 6 gandas odd share which still remained recorded in his name, that the auction-purchaser Nandan Lal was under an obligation to the plaintiff's father who was a hakim and in the habit of attending Nanian Lal in that capacity, and that in order to discharge his obligation he consented to transfer the purchased property back to the plaintiff's father but that instead of executing a kobala in favour of the plaintiff's father for that purpose, he confessed judgment in the suits brought both by Bande Ali and the two sisters of the plaintiff's father in respect of the shares claimed by them and with regard to the remaining shares he executed a kobala in favour of one Akbar Ali, a friend of his, as benamidar for the plaintiff's father. The object of this was according to the plaintiff's case, that Muhammad Haji the plaintiff's father was desirous of keeping this particular property out of the hands of his creditors. The evidence shows, however, that there was in fact no fraud perpetrated on any of the creditors of Muhammad Haji as they were all paid off, and subsequently Akbar Ali transferred his share by a ladavi deed to the plaintiff in 1897 and about the same time the shares of the two aunts of the plaintiff were also recorded in the name of the plaintiff's wife. The share of Binds Ali, however, remained recorded in his own name, although it is the plaintiff's case that both he and his father, before him were in sole possession and control of the property and that Bande Ali was merely their benamidar, and it Was not until the year 1914 when ill-feeling arose between the plaintiff and the defendants that the latter endeavoured to get possession of the share recorded in their name by filing a petition for partition before the Collector. Hence the present suit claiming a declaration of the plaintiff's title.
3. Before the Subordinate Judge the main issues were, first, whether the 5-annas 18-gandas odd share transferred by Bibi Rihiman to the plaintiff's father and uncle in 1855 included the 2-annas 6'-gatndus odd share of Bands Ali and, secondly, whether the compromise in the suit of 1873 made between Nandan Lal and Bands Ali was really part and parcel of a benami transaction wherein Bande Ali was acting merely as the benamidar of the plaintiff's father. With regard to the first point there was no direst documentary evidence showing a transfer of Bande Ali's share to Bibi Rihiman before 1855, and the only documentary evidence in support of this was a petition in 1861 whereby the plaintiff's father applied for registration of his name in respect of the 5-annas 13-gandas odd share purchased from Bibi Rahiman, in which he recites that this covered, in addition to the 2 annas 6 gandas odd which she received from her husband, the 2 annas 6 gandas transferred by Bande Ali as well as the P-anna shara transferred to her by Bibi Babarun. As the whole share of the family was an 8-annas share and as Bibi Rahiman admittedly acquired 3 annas 6 gandas odd from her husband and Bibi Biharun, there was no other source from which she could have acquired the other 2 annas 6 gandas, odd making up the 5 annas 13 gandas, except from Bande Ali unless she acquired Kasim Ali's share, and there was no evidence to show that Kasim Ali ever parted with his interest. On the other hand, the oral evidence went to show that Kasim Ali's share descended by inheritance to the plaintiff's father and uncle and ultimately to the plaintiff, The Subordinate Judge found all issues in favour of the defendants and dismissed the suit.
4. The District Judge took a different view of the facts and came to the conclusion that the plaintiff had made out his title to the whole 8 annas share including that Originally -held by, Bande Ali, and that the transaction which took place at the date of the suit brought by Mathura Das in 1876 was a benami transaction in which Bande Ali merely represented the plaintiff's father.
5. It has been urged before us on behalf of the appellants that there is no real evidence to support these findings. It is contended that the recitals in the petition of 1861, when the plaintiff's father applied for registration of his name, are not admissible in evidence against Bande Ali and as no deed of transfer by Bande Ali to Bibi Rahiman has been produced, there is nothing from which it can be inferred that Bandi Ali ever did in fact part with his share. The plaintiff's case was that the deed of transfer had been lost but that nevertheless from all the circumstances of the case a legitimate inference might be drawn that his father had in fact acquired from Bibi Rahiman the shara which originally belonged to Bande Ali and as the transfer of a 5-annas 13 gandas odd share from Bibi Rahiman had undoubtedly been proved and as he acquired by inheritance the 2-annas 6-gandas odd share of his grandfather Kasim Ali, this accounted for the whole 8-annas share. The further fact that Muhammad Haji in 1853 without any intervention on the part of Bande Ali had applied for and obtained a bitwara rubakar whereby the whole 8-annaa share was divided into a separate patti supported this view. The learned District Judge did not come to any definite finding on this part of the case but based his decision upon the fact that when Mathura Das obtained his decree against the plaintiff's father and uncle in 1876 and got an attachment of the whole 8 annas share which was purchased by Nandan Lal, the arrangement then come to where by Nandan Lal confessed judgment in the suits brought against him was an arrangement whereby it was intended to transfer the property to the plaintiff's father in the benami name of Bande Ali and others.
6. It is unnecessary to deal in detail with the evidence relied upon in support of this conclusion. These was undoubtedly evidence to support it to which the learned Judge refers. The only real attack made by the appellants against this part of the judgment was first that it was net competent to the plaintiff to contend that Bande Ali was acting as his benamidar, as the plaintiff's father admittedly lent himself to this transaction with a view to defeating his creditors, and secondly, that the decree in the suit brought by Bande Ali against Nandan Lal and the plaintiff's father and uncvle in 1876 was res judicata and binding on all parties to that suit including the plaintiffs predecessors-in-title. In support of the first contention the appellants rely upon the case of Yaramati Krishnayya v. Chundru Fapayya 20 M. 326 7 Ind. Dec. (n.s.) 231, where it was held under circumstances somewhat similar to the present that a plaintiff who had transferred his land to another in order to defeat an attaching creditor, the creditor subsequently consenting to a decree upholding the title of the transferee, was not entitled to a declaration that his name should be retained on the register as owner when the transferee had applied to be registered in his place. The authority of this case has been questioned and dissented from in the later case of Jadu Nath Poddar V. Rup Lal Poddar 33 C. 967 : 4 C.L.J. 22 : 10 C.W.N. 650, where Rampini and Moekerjee, JJ., held that where the mere intention to commit a fraud has not been carried into effect, a beneficial owner is entitled to sue for a declaration that a deed of transfer executed by him was, merely a benami transaction. Although there has been some diversity of opinion upon the question, I think the decision in the later case expressed the true view A, transfer which is merely colourable and made with the intention of defrauding creditors can always be sat aside by the transferor at any time before the fraud has actually taken place. Bat if the fraudulent intention has succeeded, the Courts will not assist either party claiming under such a transaction. In the present case it is shown that nobody in fact was defrauded and that the creditors of the plaintiff's father were all paid off. In my opinion the principle relied upon by the appellants on this part of the case has no application to the present circumstances.
7. With regard to the second paint the question whether Bande Ali was acting as benamidar for the plaintiff's father was not raised or decided in that suit. The decree was merely passed in favour of the plaintiff upon the confession of judgment by Nandan Lal, the principal defendant. There seems to be no reason why the present plaintiff should be estopped from contending that Binde Ali was merely his benamidar. In my opinion this appeal fails and, must be dismissed with costs.