LAXMI NARAIN Vs. SETH SRI RAM AND ANOTHER

JUDGEMENT

(1.) A sale -deed of the property in dispute was taken on March 7, 1948, in the names of Lachmi Narain and Ramesh Chandra; a minor son of Shri Ram. plaintiff -respondent. Shri Ram filed the suit which has given rise to this appeal for a declaration that the property was, in fact, purchased by him with his own money and that the names Lachmi Narain and Ramesh Chandra were benami. The courts below have concurrently found that the transaction was benami and that Shri Ram was the real owner.

(2.) IN this second appeal by Lachmi Narain the only point urged before us is that a transaction could not be real and partly benami. It is pointed out that since Ramesh Chandra was the son of Shri Ram and a member of a joint Hindu family with him, it could not be said that his name Was real and partly benami; and that, therefore, it was not possible to hold that qua the share of Lachmi Narain alone the transaction was benami. We find no force in this contention. There is nothing in law to prevent a sale -deed being taken in the names of two persons, one of whom is a benamidar for a third person. Our attention has been drawn to Bans Naiain v. Mb. Chandrani Kuer, 1944 A.L.J. 121 :, AWR (H.C.) 99 In that case there was a sale deed in favour of two persons Both the learned Judges who decided that case agreed that the two vendees were benamidars for a third person. The lower court had held that the sale -deed was fictitious and benami so far as one of the vendees We concerned but genuine so far as the other vendee Was concerned. Mathur, J. expressed the opinion that upon the pleadings it was not open to be contended, nor open to the lower court to decides that one of the vendees alone was a benamidar while the other was not The other learned Judge, Allsop, J. did not share this view. The question, however was not necessary to be decided, because the Bench held that both the vendees were benanmiars. inference was made to a decision of; the Bombay High, Court reported in Appa Dhond Savant v. Babaji Krishnaji A.I.R. 1922 Bom. 107 in which it was observed :

(3.) THE above quotation does not support the contention of the learned counsel. The learned Judge, in the Bombay case was dealing with a presumption of fact He was laying down that it would require a very strong case for holding that part of a transaction was genuine and part unreal. The last clause of the above quotation dearly shows - that the learned Judge did not hold that it was not legally possible to say that a part of a transaction was genuine and a part unreal.