Patna High Court
Rudra Pratap Dutta vs Manindra Nath Dutta & Ors on 23 February, 2012
Equivalent citations: AIR 2012 PATNA 78
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
FIRST APPEAL No. 106 OF 2007
Against the judgment and decree dated 22.02.2007 passed by
Sri Chandra Shekhar Pradhan, Subordinate Judge-II, Patna in
title suit No.385 of 1995 dismissing the plaintiff-appellant's suit
for declaration of title.
RUDRA PRATAP DUTTAA
................ Plaintiff-Appellant
Versus
SATENDRA NATH DUTTAA & ORS .................. Defendants-Respondents
********
For the Appellant : Mr. S.K. Majumdar, Sr. Advocate
Mr. Lala Sachindra Kumar, Advocate
Mr. Ashok Kumar Sinha No.2, Advocate with him.
For the Respondent : Mr. Keshav Srivastava, Sr. Advocate
Mr. Bhubaneshwar Prasad, Advocate with him.
Dated : 23rdday of February, 2012
PRESENT
THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO
JUDGMENT
Mungeshwar
1. Originally, Surendra Nath Dutta filed title suit No.385 of 1995
Sahoo, J.
praying for declaration that the plaintiff has got right title interest over Schedule I property of the plaint and for declaration that the defendants have no title to the property. During the pendency of the suit, the original plaintiff died. The defendant No.5, Rudra Pratap Dutta was transposed as plaintiff in the suit and, therefore, relief was added to the effect that after the death of original plaintiff, the present plaintiff has got right title over the suit property on the basis of registered will executed by the original plaintiff -2- dated 01.01.1996. By the impugned Judgment and Decree dated 22.02.2007, the suit was dismissed. Against the said Judgment and Decree passed by Sri Chandra Shekhar Pradhan, Sub Judge II, Patna in title suit No.385 of 1995 the transposed plaintiff has filed this appeal.
2. According to the case of the original plaintiff as pleaded in the plaint, he had got 6 brothers who had separated from the plaintiff before 1934. The plaintiff passed accountancy examination in 1934 and became Chartered Accountant. He started his practice by opening a firm known S.N. Dutta and Company. The plaintiff has got 4 sons who are defendant Nos.2 to
5. The wife, Dharm Kumari Devi, the original defendant No.1 was the wife of original plaintiff. Out of the 4 sons, the eldest is mentally weak, second son is Advocate, 3rd son is engineer settled in London and 4th son, the defendant No.5, Rudra Pratap Dutta is graduate and is engaged in radio advertising profession. The plaintiff's only daughter was settled with her husband in Muradbad. The plaintiff acquired two houses out of his own fund and nobody had contributed. The plaintiff acquired the suit property in the year 1953 when all his sons who are defendants were minor. He purchased for his own benefit without intending any benefit for wife. The plaintiff had purchased 11 katha 13½ dhur for consideration of Rs.51,827/- by registered sale deed dated 16.06.1953 out of his own fund paid by Bank draft or in cash but he took the sale deed in the name of his wife, defendant No.1 because to avoid possible claim by his brothers. The plaintiff became the absolute owner of the property. All the mutation and taxes were done in the name of his wife but the plaintiff remained absolute owner thereof. The defendant No.1 had no source of income and she was only a house wife. The defendants being the wife and sons are living in the house constructed by the plaintiff because they are family members. The plaintiff had constructed the building and the -3- shop premises in S.P. Verma road and is realizing the rent from the tenants inducted by him.
3. The defendant No.1 developed some weakness towards her two sons, Ranjeet Kumar Dutta and Manendra Nath Dutta and she went in their collusion. The plaintiff developed eye trouble and two years before institution of the suit, he became blind. The papers and other valuable things including the sale deeds were in the custody of defendant No.1 and the plaintiff was not allowed to be accessed to the said document. Therefore, the plaintiff filed the present suit for declaration of title. After transposition, the defendant No.5 claimed that the property devolved on him and Usha Dutta wife of Mahendra Naryan Dutta on the basis of the registered will executed by plaintiff on 01.01.1996.
4. It may be mentioned here that originally the defendant No.5 had filed supporting written statement. On the death of original plaintiff, he was transposed as plaintiff.
5. The defendant No.1, i.e, the wife of original plaintiff, namely, Dhram Kumari Devi filed a contesting written statement. Her case in short is that the plaintiff is blind and in fact the suit has been filed by the defendant No.5 in the name of the original plaintiff. The original plaintiff was kept in confinement by the defendant No.5 and the others were not allowed to visit original plaintiff. Defendant No.5 was realizing the rent from the tenants on the instruction of the defendant No.1. The suit property was acquired by this defendant No.1 from own fund which she got by gift given by her husband from time to time and also the fund given to her at the time of her marriage. Mutation is in her name and she is paying the municipal tax also. The suit is bared by the Benami Transaction (Prohibition) Act, 1988. -4-
6. The defendant No.4 also filed contesting written statement in the same line as that of defendant No.1. According to this defendant, the defendant No.1 was the daughter of Jamindar and renounded Advocate. Out of stridhan the property had been purchased by defendant. No.1. It may be mentioned here that although contesting written statements were filed by the defendants, they did not examine any witness in support of the pleadings.
7. On the basis of the aforesaid pleadings, the learned Court below framed following issues :-
(i) Is the suit as framed maintainable?
(ii) Is the plaintiff got valid cause of action for the suit?
(iii) Is the suit barred u/s 34 of the Specific Relief Act?
(iv) Is the suit barred under Benami Transaction (Prohibition) Act,
1988?
(v) Is the suit property acquired by the original plaintiff from her
own fund?
(vi) Is the suit bad for want of necessary party?
(vii) Is the substituted plaintiff entitled for the decree as claimed for?
8. After trial, the learned Court below held that plaintiff failed to prove exclusive title and dismissed the suit. The learned senior counsel, Mr. Majumdar appearing on behalf of the appellant submitted that the learned Court below has wrongly relied upon pleadings of the defendants although none of the defendants came to the witness box for their examination and cross-examination and, therefore, practically, there was no evidence in support of the pleading, i.e, written statement of the defendant and it is well settled that the pleading is not the proof of what has been pleaded. In such circumstances, the pleading cannot be looked into but the learned Court below relied upon the statements made in the written statement and discarded the evidence of the plaintiff. According to the plaintiff, the property was purchased for his own benefit without intending any benefit for -5- wife and plaintiff is an absolute owner thereof. This is the specific pleading in paragraph 6 of the plaint. The plaintiff purchased the property in the name of his wife to avoid the possible claim that might have been made by his brothers. All the consideration amount were paid by the plaintiff and to prove this fact that the consideration amount was paid by the plaintiff, the bank passbooks were proved. The plaintiff also examined as many as 12 witnesses in support of the fact that the building was constructed by the original plaintiff and the tenants were inducted and the rents were realized by him. The taxes were paid to the municipality. Although the defence claimed that the sale deed with respect to the suit property was in their custody but they did not produce the same in the Court. The learned Court below had not considered the fact that all these evidences produced by the plaintiff remained uncontroverted. In other words, the evidence adduced by the plaintiff was ex-parte but then rejected the same on the basis of pleading in the written statement.
9. The learned counsel further submitted that all the documents, i.e., mutation paper, rent receipts payment of tax receipts have been produced from the custody of the plaintiff which indicate that defendant No.1 was only a name lender. All the witnesses examined by the plaintiff have stated that the property was purchased by the original plaintiff out of his own fund and the building has been constructed by the original plaintiff but the learned Court below wrongly dismissed the plaintiff's suit.
10. The learned senior counsel, Mr. Majumdar further submitted that the plaintiff had sold the valuable land of Lalji Tola for expansion of his professional work and accommodation of his growing children and for making addition / alteration in the old existing building to relocate his office C.A. firm. He made huge investment in the construction of 4 shops in the suit -6- property with a view to accelerate his own income and for his own benefit. The defendant No.1 did not induct any tenant nor ever did she collect rent from any tenant. The plaintiff got title suit No.362 of 1979 filed in the name of defendant No.1 for the eviction of Dena Bank. The defendant No.1 was living in the suit premises as one of the family members. All these natural conduct of the parties shows that the property was purchased by the original plaintiff in the name of defendant No.1 for the benefit of the plaintiff and not for the benefits of wife but the learned Court below dismissed the plaintiff's suit by approaching the case in wrong angle.
11. According to the learned senior counsel, Mr. Majumdar, purchase of the properties by husband in the name of his wife is not a benami transaction and, therefore, it will not hit by Section 4 of the Benami Transaction Act, 1988. The defence have not produced any evidence in support of the claim that the property has been purchased by the defendant No.1 within her stridhan and, therefore, the Court should have accepted the fact that in fact the plaintiff paid the consideration amount and purchased the property of his own benefit in the name of his wife and, therefore the original plaintiff is the exclusive owner of the property and the defendant No.1 was only a name-lender and was not the owner of the property. On these grounds, the learned counsel submitted that the impugned Judgment and Decree are liable to be set aside. The will in favour of the present transposed plaintiff has been probated and, therefore, on the death of original plaintiff the property of defendant No.1 devolved on the transposed plaintiff and in such circumstances, the suit be decreed in favour of the plaintiff with cost.
12. On the contrary, the learned senior counsel, Mr. Keshav Prasad Srivastava submitted that the presumption that the property has been purchased by the husband for the benefit of the defendant No.1 is in favour -7- of the defendants and, therefore, it is for the plaintiff to prove the fact that the property was purchased by the original plaintiff not for the benefit of the defendant No.1. Since the plaintiff is seeking for declaration of title against the statutory bar, he has to prove this fact by producing strict reliable evidence. It will not suffice only to say either in paragraph 6 of the plaint or in the evidence that the plaintiff purchased for his own benefit and not for the benefit of defendant No.1. The plaintiff is required to displace the presumption by adducing further evidence that in fact the defendant No.1 or the defendants were not benefited ever. All the documents are in the name of defendant No.1 since for last more than 40 years and still today also. The name of defendant No.1 was mutated, the rent receipts were paid in the name of defendant No.1, the title suit was filed by the defendant No.1 against Cenara Bank. All the documents produced by the plaintiff himself shows that those documents are in the name of defendant No.1. During this long period, that is more than 40 years prior to institution of the suit, no action was ever taken by the plaintiff for transferring the property in his name nor he ever claimed to be the exclusive owner thereof. This case has been filed only when the original plaintiff became blind two years prior to institution of the suit which indicate that in fact original plaintiff had not filed the suit rather the suit had been filed by the defendant No.5 in the name of his father the blind old man. According to the learned counsel, the original plaintiff was examined as witness in the present case and he has admitted in the cross-examination that he has not filed this suit against his wife rather he has filed written statement in the case filed by his wife. Since the burden is on the plaintiff to prove his title in view of Benami Transaction Act, 1988, the weakness of the defendant will not help to the plaintiff. The plaintiff will stand or fall according to his own case and he cannot derive benefit from the -8- weakness of the defendant. According to the leaned counsel, the witnesses who have been examined on behalf of the plaintiff and the documents produced by the plaintiff, all are in favour of the defendants and, therefore, it was not necessary for the defendant to produce any evidence because the burden was not on the defendant to prove her any case as admittedly all the documents are in the name of defendant No.1. Considering all these facts and evidences, the learned Court below has rightly dismissed the plaintiff's suit. The learned senior counsel further submitted that the appellant is such a cunning man that to grab the property fraudulently obtained the will from the original plaintiff in the year 1996 after institution of the suit. In other words after institution of the suit, prior to declaration of his title, the plaintiff could not have executed the will in favour of defendant No.1. In the plaint, the plaintiff categorically admitted that he was completely blind two years prior to institution of the suit. This clearly indicates that the defendant No.5 got manipulated so called will from a blind man and, therefore, on the basis of that will, he is claiming exclusive title on the suit property. There was no reason as to why the original plaintiff could have executed the will with respect to the entire property dislodging the natural inheritance. Nowhere, it is stated by the original plaintiff that he had got strain relationship with his wife and other sons. These facts clearly indicate that this story has been cooked up by the defendant No.5, the present appellant. There was no reason as to why the plaintiff could have purchased the property in the name of his wife in the year 1953 as it was admitted by the plaintiff himself that his other brothers were separate from him prior to the acquisition of the property. So far production of the mutation paper or the tax receipts and municipal tax receipts are concerned, it is quite natural that the defendant No.1 being the lady was not expected to visit the public offices as has been -9- admitted by the plaintiff himself that she was a house wife and, therefore, everything was done by her husband on her behalf which is natural conduct and after his death, one of the son, i.e., defendant No.5 was doing all these words but only because these documents had been produced from the custody of the plaintiff, it cannot be said that the title of defendant No.1 extinguished or the property was not purchased for the benefit of defendant No.1 or that title has been created in favour of the plaintiff. On these grounds, the learned counsel submitted that the plaintiffs appeal is liable to be dismissed with exemplary cost. Both the parties have filed their written arguments elaborating in details the points raised by them.
13. In view of the rival contentions of the parties, the points arises for consideration in this appeal is as to whether :-
(i) The original plaintiff had purchased the suit property in the name of original defendant No.1 his wife but not for the benefit of his wife and, therefore, he is the exclusive owner of the property.
(ii) Whether the transposed plaintiff has got title over the suit property on the basis of the Will executed by original plaintiff and whether the impugned Judgment and Decree are sustainable in the eye of law.
14. Since both the points are interrelated, both the points are decided together.
15. According to the original plaintiff, Surendra Nath Dutta, he has purchased the suit property in the name of his wife defendant No.1. At paragraph 6 of the plaint, it is stated that the plaintiff purchased the suit property for consideration of Rs.51,827/- by a registered sale deed dated 16.06.1953. Entire consideration money was paid out of his own fund and account either by bank draft or in cash in several installments but the plaintiff took the sale deed in the name of his wife but entirely for his own benefit. He took the sale deed in the name of his wife simply because he had
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other brothers. Although, they were separate just to avoid all possible claim from the side of brothers, he thought it safer to take the deed in the name of his wife but without intending any benefit to the wife and the said property always remained in possession of the plaintiff as absolute owner thereof. Admittedly, although the defendants have filed written statement as discussed above but they have not contested the suit. No evidence had been adduced by them.
16. The plaintiff had examined 12 witnesses. P.W.1 is the original plaintiff Surendra Nath Dutta. He stated that his wife is solely dependent on him and she is illiterate. She has no money of her own nor she had source of income. All these addition and alteration in the house has been made by him and he has purchased the property for his benefit and for the benefit of the family. He was collecting the rent from the tenants. In the cross- examination at paragraph 53, this witness has stated that he had lost his eye sight prior to 1990-91. He cannot see anything and he learnt from others. His operation was not successful. In paragraph 70, he admitted the fact that since the year 1982-83, he was blind. In the examination-in-Chief at paragraph 3, the P.W.1 has stated that the wife, Dhram Kumari Devi had filed this present suit for partition. He has filed the reply in the suit. This indicates that he was not knowing even the fact that the suit has been instituted in his name.
17. In the cross-examination, he has further stated that he did not know the fact as to who had filed the present suit. He did not know the contents of the plaint and also did not know the contents of the written statement filed by him. He is unable to say for what reliefs he had filed the suit. He is unable to say who are the parties in the suit. From reading of paragraph 104, 106 onwards upto paragraph 119 of his cross-examination, it
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appears that this plaintiff had no knowledge about the facts of the present suit. He is entirely dependent on the Advocate. He has categorically admitted that the property was purchased for his own benefit as well as for the benefit of his family vide paragraph 13 of the examination-in-chief.
18. The learned senior counsel, Mr. Majumdar, appearing on behalf of the appellant submitted that the Commissioner who was appointed to record the evidence has wrongly recorded in favour of the defendants and, therefore, many applications were filed in the Court. So far this point that the Advocate Commissioner who recorded the evidence of P.W.1 committed the mistake is concerned, it is not reliable. In view of the fact that P.W.1 himself admitted that he was blind since 1982-83. There is no case that it is not the fact that he is not blind. In such circumstances, it is quite natural that he was dependent on somebody. He in his evidence has stated that he was fully dependent on Shashi Babu, his Advocate. It is not his case that on his instruction, Shashi Babu was acting. His evidence shows that this plaintiff was acting according to the advice of Shashi Babu. The question arises as to who was giving instruction to Shashi Babu.
19. All the other witness P.W.2, Dharmesh Dutta P.W.3, N.P. Verma, P.W.6 S.K. Sinha, P.W.8 V.N. Dutta, P.W.12, the transposed plaintiff- appellant all have stated that the property is the self-acquired property of original plaintiff out of his own fund and that defendant No.1 had no source of income.
20. The plaintiffs have also proved various documentary evidence. Ext.1 series are the letters from tenant. Ext.2 series are the rent receipts and counterfoil of the rent receipts issued to the tenants. Ext.4 series are the pass book of the banks in the name of original plaintiff. These documents had been filed to prove that the consideration money was paid by
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the original plaintiff. Likewise ext.5 series are the cheque books. These cheques have been filed to show that the electric bills, municipal taxes bills, bills of construction work etc. were paid by the original plaintiff. Likewise, Ext.6 series are electric bills, ext.7 series are municipal tax payment receipts which have been filed to show that the electric bills and municipal taxes were paid by the original plaintiff. Ext.10 series are letters of plaintiff brothers. Ext.11 series are the documents relating to loan taken by the plaintiff from Insurance Companies and Banks. These documents have been filed to show that for purchasing the property the plaintiff had obtained loan from the Insurance Companies as well as from banks. Ext.12 is the letter and telegram which has been filed to show that Dena Bank, Bank of Baroda admitted that the plaintiff is the owner. Ext.13 series is daily expenses book which has been filed to show that the original plaintiff was making payment to the laboures who are involved in making construction and ext.15 is the probated will of the transposed plaintiff.
21. Admittedly, the documents of title, i.e., the registered sale deed is in the name of defendant No.1. The plaintiff in the plaint categorically stated that the documents are in the custody of defendant No.1. Now, it is admitted fact that the title deed is not in possession of the plaintiff nor it was filed in the case to show that the plaintiff is in possession of the title deed. It is also admitted fact that the name of defendant No.1 is mutated in the Municipal Corporation, Patna office. The rent receipts and the tax receipts are in the name of defendant No.1. The suit was filed for eviction of the tenant wherein the defendant No.1 was the plaintiff. In other words, the documents produced by the plaintiff which are revenue records or rent receipts all are in the name of the defendant No.1. Nowhere the plaintiff
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claimed to be the owner of the property. This suit has been filed in the year 1995.
22. Section 3 of the Benami Transaction Act, 1988 reads as follows :
"3. Prohibition of benami transactions - (1) No person shall enter into any benami transaction.
(2) Nothing in sub-section (1) shall apply to -
(a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter;
(b) the securities held by a -
(i) depository as registered owner under sub-section (1) section 10 of the Depositories Act, 1996.
(ii) participant as an agent of a depository.
Explanation - The expressions "depository" and "participants" shall b the meanings respectively assigned to them in clauses () and (g) of sub-section (1) of section 2 of the Depositories Act, 1996.) (3) Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under this section shall be non-cognizable and bailable."
23. In view of the above provision of the Benami Transaction Act, it shall be presumed that the property had been purchased for the benefit of the wife. Therefore, the presumption is in favour of the person in whose name the property stands. In the present case as stated above, the property is standing in the name of defendant NO.1 and, therefore, according to statute, it shall be presumed that the property has been purchased by the original plaintiff for the benefit of the wife. At paragraph 13 of the Evidence of P.W.1 original plaintiff he has specifically and in clear terms has stated that the property has been purchased by him for his own benefit and for the benefit of the family. Now, therefore, this statutory presumption is being confirmed by the original purchaser in his evidence at paragraph 13.
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24. Section 4 of the Benami Transaction (Prohibition) Act, 1988 reads as follows :
"4. Prohibition of the right to recover property held benami : - (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.
(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any of it, claim or action by or on behalf of a person claiming to be the real owner of such property.
(3) Nothing in this section shall apply-
(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the comparceners in the family; or
(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity."
25. In view of the above provision of Benami Transaction (Prohibition) Act, 1988, no suit claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held shall lie by or on behalf of a person claiming to be the real owner of such property. Therefore, Section 4 creates a bar regarding the maintainability of the suit. However, in the present case since the property has been purchased by the husband in the name of wife, it is saved under Section 3 of the said Benami Transaction Act. However, since presumption is in favour of the defendant No.1, the contrary has to be proved by the plaintiff to the effect that the property has not been purchased for the benefit of wife. So far this proof is concerned only one line statement made in paragraph 6 of the plaint or statement made in the evidence in support of that will not do. It is not the requirement of law that the mandatory presumption provided
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under the Act will be disproved if it is pleaded that the property was not purchased by the plaintiff for the benefit of the defendant No.1.
26. In the case of Nanda Kishore Mehra Vs. Sushila Mehra AIR 1995 SC 2145=1995(4) SCC 572, the Apex Court in similarly situated cases while deciding the effect of Section 3 and 4 of the Benami Transaction Act 1988 held that since the plaintiff is the husband who had the right to enter into a benami transaction in the matter of purchase of property in the name of his wife or unmarried daughter, as we have held earlier, he is entitled to enforce his rights in the properties concerned, if he can succeed in showing that he had purchased them benami in the name of his wife. But in view of the statutory presumption incorporated in sub-section (2) of Section 3 of the Act, he can get relief sought in the suit only if he can prove that the properties concerned had not been purchased for the benefit of the wife, even if he succeeds in showing that the consideration for the purchases of the properties had been paid by him.
27. In view of the above settled principle of law laid down by the Apex Court referred to above, the husband even if succeeds in showing that the consideration for the purchases of the properties had been paid by him, he will not succeed for declaration of his title unless he proved the fact that the same was not purchased for the benefit of the wife. In the present case, therefore, even if it is held that the plaintiff has been able to prove that consideration amount was paid by him but in view of Section 4 of the Benami Transaction Act which has been interpreted by the Apex Court, he will not be able to claim exclusive ownership over the property unless he proved that he purchased the same not for the benefit of wife. Here, instead of proving the said fact in paragraph 13 of his examination-in-Chief, the plaintiff
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categorically admitted that he purchased the property for his own benefit and for the benefit of his family. It is well settled that family includes wife and, therefore, the plaintiff admitted that the property had been purchased by him for the benefit of wife and children.
28. The learned counsel for the appellant submitted that the constructions were made by the original plaintiff and he expanded his fund in the suit property and, therefore, it was for the benefit of plaintiff. The documents which have been produced were from the custody of plaintiff which indicates that the property was not for the benefit of defendant No.1. There is no such presumption that because the documents which relates to revenue record are in possession of the plaintiff, he will be presumed to be the real owner or that title of defendant No.1 is extinguished. Nowhere any cogent reliable evidence had been produced on the record on behalf of the plaintiff to say that in fact the property was purchased not for the benefit of wife. Here, by the statute, the burden has been given to the plaintiff to prove a negative thing. Since, this negative has to be proved by the plaintiff to dislodge the presumption of statute, the evidence must be strong cogent and reliable. As has been laid down by the Apex Court, it will not suffice to prove the payment of consideration by the plaintiff only or that by producing the revenue documents. On the contrary the plaintiff himself admitted that the property had been purchased for his benefit as well as for the benefit of the family which is contrary to the claim as exclusive owner thereof.
29. The learned counsel for the appellant relied upon A.I.R. 1999 SC 1441 and A.I.R. 2007 SC 2637 and A.I.R. 1962 Patna 168 Division Bench and submitted that if a person files a written statement and does not enter the witness box and state his own case a presumption will arise that the case set up by him is not correct and the statement in written statement
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is of no use. So far these decisions are concerned, there is no dispute about the above settled principle of law. Here, in the present case, the statutory presumption is in favour of the defendant No.1. Therefore, in view of Supreme Court decision referred to above regarding benami transaction, the plaintiff will succeed only if he will be able to prove that the property has not been purchased for the benefit of wife. Only because the defendants have not adduced evidence or that not contested the suit, the statutory presumption in their favour will not be ceased. As stated above the plaintiff is required to prove the negative. The burden is on the plaintiff and this burden cannot be discharged by the plaintiff by saying that the defendants have not contested the suit or that his evidence is ex-parte. So far the production of documents are concerned, the defendant No.1 being the lady is not expected to do all those official works by herself, particularly when it is specific case of the plaintiff that she was uneducated. The question is whether if the owner will not go to the revenue offices and will not keep the revenue records in her custody, her title will be extinguished?
30. On the other hand, the natural conduct is that either the husband or the son will do all these works on her behalf. Therefore, in my opinion, the production of the revenue records or tax receipts or rent receipts will not the decisive factor for giving finding on the question that whether the property was purchased not for the benefit of defendant No.1. Here, the plaintiff is not required to prove that it was purchased for his own benefit rather according to the statute, he is required to prove that it was not purchased for the benefit of wife. In the plaint, the plaintiff specifically pleaded that the title deed is in possession of the defendant No.1 and, therefore, admittedly, the plaintiff was not possessing the title deed.
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Therefore, merely because he was doing the work on behalf of the defendant No.1 whether title will be created in his favour, in my opinion, never.
31. In view of my above discussion, I find that the plaintiff has failed to prove that the property was purchased not for the benefit of defendant No.1 and, therefore, he is not entitled for declaration of title. Admittedly, the present plaintiff is claiming on the basis of probated Will, ext.15. When the original plaintiff himself was not entitled for declaration of title exclusively he could not have executed will with regard to entire property of which he was not the exclusive owner. Therefore, the present plaintiff also cannot claim declaration of his exclusive ownership over the entire suit property. In view of above facts and circumstances of the case as discussed above the finding of the learned Court below is, therefore, hereby confirmed.
32. In the result, this First Appeal is dismissed with cost of Rs.25,000/- to be paid by the appellant to the respondents within one month. The respondents are entitled to realize the said cost if not paid by the appellant through process of Court.
(Mungeshwar Sahoo, J.) Patna High Court, Patna The 23rd day of February, 2012 Sanjeev/A.F.R.