BRIJESH KUMAR Vs. SMT. CHAWALI DEVI

JUDGEMENT

(1.) THIS second appeal was heard and allowed by me ex parte against the defendant -respondent, by my judgment dated 11th August, 1982. That was recalled inasmuch as Dr. Gyan Prakash, learned counsel for the defendant respondent did not have an opportunity of being heard on account of his name not been shown in the cause list. Having heard learned counsel for the defendant -respondent, I am satisfied that the judgment dated 11th August, 1982 does not suffer from any error and must be restored. It is accordingly unnecessary for me to restate or to repeat the reasons given by me for arriving at the conclusion that I did, namely, that the appeal should be allowed, I direct that the judgment dated 11th August, 1982 shall be deemed to be a part of this judgment. However, I must refer to the argument addressed to me by Dr. Gyan Prakash for the defendant -respondent and give my reasons for not agreeing with him.

(2.) THE question which arose between the parties was whether the fact that the entire consideration for the purchase was paid by Lata Battu Mal made the plaintiff a mere Benamidar for him and whether on the facts and in the circumstances. Lala Battu Mal purchased the property in the joint name of himself and the plaintiff with the intention of making the plaintiff an equal owner of the property with him. Dr. Gyan Prakash relied heavily on a Division Bench decision of this Court in Mt. Siddiqa Begam v. Abdul Jabbar Khan and other : A.I.R. 1942 All. 308, wherein it was held that the burden of proof that a transfer is Benami lies in the first instance upon the person asserting it to be so, but that burden is discharged upon the said person showing that the purchase money was provided by him or by some -one other than the person in whose name the purchase was taken. It was urged by Dr. Gyan Prakash that it is un -disputed in the present case that the purchase money came from Lala Battu Mal and that being so the burden of proof lay not on the defendant but on the plaintiff to establish that the transaction was not Benami. Reference was also made to a Division Bench decision of the Orissa High Court in Nandipalli Appalaraju v. G. Pannalal Sowcar and others : A.I.R. 1982 Ori 131, wherein it was held that in order to determine whether a transaction is Benami or not the source of consideration is almost the deciding factor. I had found that apart from proof of payment of the entire sale consideration by Lala Battu Mal, and the fact that the purchase was made by him in the joint names of himself and the plaintiff as evidenced by the sale -deed, the evidence on the point, that is on the question whether purchase in the name of the plaintiff was Benami or not, is scanty and unreliable. Lala Battu Mal was dead. The only evidence which we had on the point, is that of Shambhu Saran (P.W. 1) who was the plaintiff's natural father; Kishan Lal (P.W. 2) who was the scribe of the sale -deed; and Om Prakash (D.W. 1), who was a witness of the sale -deed and related to Lala Battu Mal as his wife's brother's son, probably the defendant's brother's son. The defendant, who might have known some thing about the intention or the circumstances, in which Lala Battu Mal, her husband, joined the plaintiff as a co -purchaser with him, refrained from appearing in the witness box. Shambhu Saran (P.W. 1) stated that the plaintiff lived with Lala Battu Mal ever since he was four years old, and that Lala Battu Mal purchased half the property for the plaintiff for the reason that he had great love and affection for the latter. The scribe of the sale -deed, Kishan Lal (P.W. 2) did say that he scribed the sale -deed on the instructions of Lala Battu Mal who told him that he was purchasing half the property for himself and the other half for the plaintiff, but he could have hardly deposed, anything different from that which was written in the sale -deed itself. Om Prakash (D.W. 1) admitted that the plaintiff was living with Lala Battu Mal. He, however, said that the plaintiff's name was entered 'by the way' his cross -examination shows that he could not have known what the intention of Lala Battu Mal was in joining the plaintiff's name as a co -purchaser of the property with him. Under these circumstances I observed that:

(3.) THIS is a plaintiff's Second Appeal in a suit for partition.