AUTO SALES Vs. SHUSHILA SINHA

JUDGEMENT

(1.) THIS is a revision by the plaintiff against the order of the Civil Judge dated the 18th of September 1963, releasing the house from attachment under the provisions of Order 38 Rule 8 of the Civil Procedure Code.

(2.) THE plaintiff had filed a suit on the 19th of March 1963, for recovery of a sum of Rs. 69,000 against Mr. J. N. Sinha opposite party No. 2. On the same date an application under Order 38 Rule 5 of the C. P. C. was filed praying for attachment of the only house possessed by the said opposite party No. 2 in Tagore Town. THE house was attached and a notice issued. On the 5th of April 1953, Mrs. Sinha, the wife of the opposite party No. 2 filed an objection to the attachment on the ground that she was the owner of the said house in possession. THE reply of the plaintiff applicant was that she was only a benamidar for her husband. THE opposite parties did not go into the witness box. Evidence was given only by the brother of Mr. Sinha to order to prove the source of the purchase price for the impugned and which was purchased on the 2nd Septem-ber 1960. THE trial Court was not inclined to believe this evidence and observed:-- "I agree with him that had this been a suit there was a strong presumption of these transactions being Benami." But he went on to hold that the proceedings under Order 38 Bule 5 being summary proceedings the question of benami could not be gone into in these proceedings. A finding was given that as the title deeds were in favour of Mrs. Sinha, she had established that she had some interest in the house at the time of attachment as required by Order 21 Rule 59 C. P. C. On the question of possession it was found that the house in dispute was occupied both by the objector and her husband and that as the title deeds were in favour of the claimant it will be deemed that it is the claimant who is in possession unless it is held that the defendant opposite party was the real owner and the objector was only a Benamidar. He, accordingly, held that the objector Mrs. Sinha had proved her prima facie title and possession and the house was, therefore, released from attachment. Hence this revision.

(3.) RELIANCE was also placed on a decision of the Judicial Committee in Gopeekrist Gosain v. Gunga Persaud Gosain, (1854) 6 Moo Ind App 33 (PC), for the proposition that the practice of purchasing property benami in the name of a member of the family is very widely prevalent in India and that once it is established that the transaction is benami the circumstance of the receipt being in the name of the benami-dar proved nothing. They would be only in accordance with benami usage.