MARIAM BEEVI Vs. ABDURASAK

JUDGEMENT

(1.) The plaintiff filed the suit from which the second appeal arises to declare his title to the suit properties, two in number, item 2 being the building on item 1 property, to evict the defendant, his wife, from item 2 and for recovery of possession of item 1 also, in case she came into possession of it during the pendency of the suit. Ext. A dated Kanni 16, 1119 is the sale deed, for item 1, and a shop building thereon which was then in existence, in the name of the defendant. The plaintiff and the defendant lived together till the year 1124 when they fell out and the plaintiff left her. He filed the suit on the ground that Ext. A was taken in the defendant's name benami for him. The Trial Court held in favour of the defendant, and in appeal the Subordinate Judge held against her. Hence this second appeal by the defendant.

(2.) Ext. A was for a consideration of Rs. 200/-, of which Rs. 150/- was reserved for future payment and the balance was recited as paid by the plaintiff on behalf of the defendant. Ext. B dated Idavam 10, 1120, is the receipt in the name of the defendant for the consideration reserved in Ext. A and interest thereon, and it recited prior receipts from the defendant totalling Rs. 100/- and a cash receipt of Rs. 62/- including interest as paid by the plaintiff on behalf of the defendant. On the recitals in Exts. A and B alone, it is difficult to sustain a case of benami, for, whatever was paid by the plaintiff was stated to be on behalf of the defendant. In Ext. B, the distinction between the two recitals is obvious. If the plaintiff paid the sum of Rs. 100/- also, there was no reason for not saying so as in the case of the payment of Rs. 62/-. No explanation was forthcoming for this distinction between the two recitals and all that the learned counsel could urge was that the defendant had no means to pay. Though her evidence that she made the payment in full did not find acceptance, the finding of the Trial Court is, that the plaintiff has not proved that he paid the consideration. However that be, the distinction between the two recitals in Ext. B has not been satisfactorily explained. The two courts did not notice this distinction. If, as is the plaintiff's case, he wanted to screen the suit property from the reach of his creditors, it looks very odd that his name has been associated with Exts. A or B, least of all, with the recital of consideration which is sufficient by itself to give a handle to his creditors. The plaintiff attested Ext. B which has recited payment of Rs. 100/- by the defendant. On the recitals of consideration, the inference must be that whatever was paid by the plaintiff was paid on behalf of the defendant. After all what his intention was in making payment, is the real question and this has to be ascertained from all the facts. Raman v. Pankajakshi (AIR 1952 T. C. 426) and Aravala v. Ramayi (AIR 1952 T. C. 559).

(3.) The motive for taking a benami document in a case like this is of very great importance. I attach greater value to it than to circumstances, such as the possession of the property or the custody of the title deeds and like matters. The plaintiff's case is, that in the course of his trade he sustained loss, and incurred debts to the extent of Rs. 1,000/- to Rs. 1500/-. At the same time, as would seem, he wanted to purchase property and according to him he did so in the name of his wife benami for him, after consulting P. W. 1, an advocate, who said he knew the plaintiff for over twenty years. As for his debts, Ext. C is the only documentary evidence, which is the plaint in a suit against the plaintiff filed on Thulam 30, 1119, to enforce payment of about Rs. 120/-. The other evidence as to his debts, is his own deposition, where he referred to one or two creditors by name. He has not produced any document, either to prove that he had such debts or that his creditors exerted pressure on him or even that he discharged any of them. It is impossible to conceive, that if he was in such embarrassed circumstances as he pretended, or discharged the whole or part of his debts, no documentary evidence would be forthcoming. True, P. W. 1 said, that his debts amounted to Rs. 1,200/-but this was wholly on the representation made by the plaintiff to him. Going by the evidence of P. W. 1, the plaintiff consulted him at or about the time Ext. A was taken as to the desirability of making an acquisition, when he was told that he had better do it in the name of someone he can trust. This is all the evidence. This does not mean, that Ext. A was so taken. On the admission of the plaintiff as P. W. 5, he still owned three items of properties at least one of which he acquired in the year 1120. If he was so immersed in debts that even a fresh acquisition could not be made in his name, it passes one's understanding why he still continued to keep the other properties with him. I am therefore convinced that the evidence to prove the motive pleaded by him is of the weakest, and does not support the case of the benami.