SHAMSHER ALI Vs. SHIRIN BAI

JUDGEMENT

(1.) THIS appeal under clause 10 of the Letters Patent is directed against a reversing order of the learned single Judge by which he held that an assignment of a decree for the payment of money was not really in favour of one of the judgment -debtors and the assignee was, therefore, not disentitled to execute that decree under the second proviso to Order 21, rule 16 of the Code of Civil Procedure. On account of damages sustained by a tort, one Hifazat Ali, a prominent lawyer of Khandwa, obtained against Ahsan Ali. a pleader of Burhanpur and others, a decree for Rs. 9.223 -6 -0. Hifazat Ali executed that decree against Ahsan Ali and attached his bungalow and a house. Thereupon Ahsan Ali prayed for instalments and also subsequently asked for time to compromise the claim. At this stage, on 14th August 1956, Hifazat Ali assigned the decree to Hidayat Hussain, a brother of Ahsan Ali's wife residing at Durg, for a sum of Rs. 8,500. When Hidayat Hussain initiated proceedings in execution against the judgment -debtors, some of them urged that, since the real assignee was the judgment -debtor Ahsan Ali, the decree could not be executed against them.

(2.) DURING the pendency of the appeal before the learned single Judge Hidayat Hussain and one of the judgment -debtors died and their legal representatives were brought on record. For convenience we would refer only to Hidayat Hussain, the original assignee. The Additional District Judge, Khandwa, held that Hidayat Hussain was only a benamidar and the real assignee was Ahsan Ali himself on the basis of the following facts and circumstances : (a) That the original decree -holder Hifazat Ali, who is a prominent lawyer of the Khandwa Bar, had taken out execution of the decree against Judgment -debtor Ahsan Ali alliance, the latter being also a leading lawyer but of the Burhanpur Bar, and had attached a house and a bungalow of his in consequence. (b) That the judgment -debtor Ahsan Ali had prayed for instalments and the application for the purpose was pending. (c) That he had also been praying for adjournments from time to time to arrive at a compromise with the decree -holder. (d) That the person most interested in the compromise was Ahsan Ali and the final settlement of the consideration to be paid for the alignment was also made by him, who had further stipulated with the decree -holder that he (the decree -holder) would execute the deed of assignment in the name of a person whose name he (the judgment -debtor) had agreed to furnish later on: [See the evidence of Subbarao (3 N. A. W. 1) and Kikabhai (3 N. A. W. 3), Hifazat Ali (C. W. 1) and Kamruddin (A. W. 2)]. (e) That the assignment (Exh. A -1) was taken on 14 -8 -1956 by Hidayat Huswain, who is a merchant at Durg. (f) That the assignee was the brother of the wife of the judgment -debtor Ahsan Ali. (g) W That according to the evidence of Imam Khan (3 N. A. W. 2), the consideration for assignment was paid to Hifazat Ali (C. W. 1) by Kamruddin (A. W. 2) in two instalments of Rs. 5,000 and Rs. 3.500 respectively and that when the amount of Rs. 5,000 was paid, the amount was handed over by Ahsan Ali to Kamruddin who in turn paid it to Hifazat Ali; (ii) That the evidence of Kamruddin (A. W. 2) to the contrary that the amount came from Hidayat Hussain was not reliable; and (iii) That the whole consideration for the assignment in favour of Hidayat Hussain was paid by Ahsan Ali. (h) That the reason given by the assignee for the purpose of the decree, e. g. that he had a grudge against the judgment -debtor Ahsan Ali, as he used to instigate his wife (who was the sister of the assignee) to demand her share from her brother in their father's property, appeared it to be very farfetched, unreal and unreliable. (i) That the assignee made no enquiries if the debt could or could not be recovered from the other judgment -debtors. (j) That judgment -debtor Ahsan Ali did not enter the witness -box to contradict the allegation that the assignment was benami. (k) The conduct of judgment -debtor Ahsan Ali subsequent to the assignment in not pressing his application for instalments also suggested that the assignment was benami.

(3.) IT is firmly settled and is not also disputed that, in establishing the benami nature of a transaction, the cardinal point to be proved is the source of money. In considering the onus of proof of source of money, the learned single Judge relied upon the following observations of the Judicial Committee in Manna Po Kin v. Maung Po Shein, ILR 4 Rang. 518 (PC) : : AIR 1926 PC 77: The burden is no doubt a difficult one to discharge, because in all benamidar transactions the very object of the parties is secrecy; but still the person who alleges that property conveyed to another belongs to him must prove his allegation and prove it beyond reasonable doubt. That was an ordinary case of benami dispute in which the person claiming to be the real owner was on one side and those who were claiming the property by attacking the transactions made in favour of the former as benami were on the other. Different considerations arise where the dispute is not between the benamidar or his representative on one side and the real owner or his representative on the other. In such a case, lack of evidence, particularly about the source of money, does not tell against the person attacking the transaction as benami. So, in Uman Parshad v. Gandhara Singh, 14 1A 127 at p. 132 the Judicial Committee observed : Therefore, the absence of evidence certainly does not tell against the plaintiff, but it rather tells against the defendant, who might have produced both witnesses and documents which would throw light upon the case. In Dalip Singh and others v. Chaudhari Nawal Kunwar and Another, 35 IA 104 the Judicial Committee considered another case of benami transaction and observed that where the evidence on neither side was wholly convincing, the Court must rely largely upon the surrounding circumstances, the position of the parties and their relation to one another, the motives which could govern their actions, and their subsequent conduct. Where commission of fraud is the object of a benami transaction, it is rarely possible to establish it by "conclusive evidence" of a positive character. Since fraud is secret in its movements, circumstantial evidence is the only recourse in dealing with it. Finally, in Gangadara Ayyar and Others v. Subramania Sastrigal and Others : AIR 1949 FC 88 at p. 92 Federal Court stated :