V VENKATARATNAM Vs. K MANIKYAMMA

JUDGEMENT

(1.) This is a petition to review the order of our learned brother Qamar Hasan J., made in C.M.S.A. No. 122 of 1958 on 7-12- 1961 mainly on the ground that particular ruling of the Supreme Court was not brought to His Lordship's notice by the Counsel appearing for the petitioner at that stage. The question arises in the following circumstances.

(2.) A Civil Miscellaneous Second Appeal was filed against the judgment and order of Addl. District Judge, Guntur dtd. 7/7/1958 made in A.S. No. 341 of 1957. The appeal arose out of an order under Sec. 47 C.P.C. passed by the Addl. Subordinate Judge. Guntur in E.A. No. 1327 of 1956 in S.C. No. 135 of 1956 on his file. The petitioner before the Subordinate Judge was the widow of the deceased Kancharla Narayana. The deceased had borrowed a sum of Rs.500.00 from the 1st respondent and executed a promissory note. After the death of Narayana, the 1st respondent filed a suit and obtained a decree on the foot of the note against the widow and the sons of the deceased. In execution of the said decree in E.P. No. 409 of 1956, he attached the house situated at Guntur. The widow pleaded that the house was her own absolute property but the decree-holder came forward with the contention that it was purchased by the deceased benami in her name. The matter was enquired into and on a consideration of the evidence the Subordinate Judge held that the money for the mortgage of the house and subsequent sale did not flow from the widow. Therefore, it was concluded that the purchase was benami in favour of the widow. The same view was upheld by the Addl. District Judge in appeal. At the stage of second appeal the learned Judge accepted the finding of the lower appellate court and that of the court of the first instance that the appellant had not been able to prove that the money for the mortgage or for the subsequent purchase flowed out of her pocket. He also observed that there was no proof on record to show that it was the 1st respondent's money which was employed in the mortgage and the subsequent sale. It was further observed that the onus of proving that the transaction was benami in her name was on the decree-holder and he had failed to prove positively that the purchase was made from the funds belonging to the let respondent. In that view, the appeal was allowed and the judgment of the lower court set aside. It is this order that is sought to be reviewed on the ground that the question of benami being a question of fact should not have been re-opened by this Court at the stage of second appeal. It is contended that if the Supreme Court ruling in Sree Meenakshi Mills Limited v. Income Tax Commissioner1, had been cited before the learned Judge, he would not have interfered with the concurrent finding of the lower courts. No doubt in the said case which arose in an income tax matter, it has been held that the question of benami is purely one of fact, following the decision of the Federal Court in Gangadara Ayyer v. Subramania Sastrigal1. But it is doubtful whether the production of this decision would have led the learned Judge to arrive at a different conclusion. It has been repeatedly held that questions of fact as determined by the lower courts should not be re-opened at the stage of second appeal. But the point for determination in this case is whether the non-production of this ruling can itself be a ground for review.

(3.) As stated above, in the instant case, the lower courts dealing with the evidence adduced by the widow-respondent had come to the conclusion that the money for the mortgage and subsequent sale of the house had not come out of the pocket of the widow and consequently held the transaction to be benami. The learned Judge while agreeing with this contention chose to differ mainly on the ground that the decree-holder had not proved by positive evidence that property was purchased from the funds belonging to the husband. Referring to the decision of the Privy Council in Gangadhara Ayyar v. Subramania Sastrigal1, the learned Judge held that the onus of establishing that a transaction is benami is on the person asserting benami nature of the transaction and it must be strictly made out. In the light of such authority, the conclusion was that the decision of the lower courts could not be sustained as they were based on suspicion and not on legal grounds or legal testimony.