HAZARIBAGH MICA MINING COMPANY LIMITED Vs. ASHALATA KAPOOR

JUDGEMENT

(1.) This appeal is presented on behalf of the plaintiff against the judgment and decree of the Additional Subordinate Judge of Ranchi, dated 31st May 1947.

(2.) The plaintiff, Hazaribagh Mica Mining Company, Limited, had instituted a money suit in the Court of the Subordinate Judge of Hazaribagh and obtained a decree for Rs. 24,540 inclusive of costix agamic Mr. G.C. Kapoor, deiendant No. 3. In the course of execution proceedings, the plaintiff attached two properties, (Ij a house and land appurtenant thereto located on the Peace Road, Ranchi ana (2) a plot of garden land, area 1.70 acre on Booty Road in Mahaila Morabadi. Defendant No. 1, Mrs. Ashaiata Kapoor objected to the attachment on the ground that half share of the house belonged to her ana that the entire garden land belonged. to her minor son, defendant No. 2, Motichand Kapoor. The executing Court allowed the objection ana set aside attachment of the properties. The plaintiff thereupon brought the present suit under Order 21, Rule 63, Civil P.C., asking for a declaration that the properties belonged to defendant. Mr. G.C. Kapoor and were liable to be sold in execution of the decree. Defendants I and 2 contested the suit but defendant no. 3 did not appear. Upon examination of the evidence, the learned. Subordinate Judge held that Mr. G.C. Kapoor had title only to hair share of the house on the Peace Road, that the other half share of the house belonged to Mrs. Ashaiata Kapoor and that the Morabadi garden was owned by Motichand Kapoor and defendant No. 3 had no share in it. The learned. Subordinate Judge accordingly granted a decree to the plaintiff in part.

(3.) As regards the Morabadi garden described in Schedule 2 of the plaint learned Counsel for the appellant argued that the purchase was made benami in the name of Motichand Kapoor, that Mr. G.C. Kapoor had really supplied the purchase money and hence the Morabadi garden was liable to be attached in execution of the decree obtained by the appellant. But, in my opinion, the circumstances proved in the case indicate that the purchase of the Morabadi garden was not made foe-nami in the name of Motichand Kapoor. It is not disputed that on 15th November 1942 a cheque for a sum of Rs. 6,500 was drawn by Mr. G.C. Kapoor and Budh Singh jointly in favour of Mrs. Ashaiata. Kapoor. This cheque was credited to the current account of Mrs. Kapoor on the same date. On 16th. of November 1942 the deed of sale, Exhibit J/1, was executed by Sheo Prasad Marwari in favour of Motichand Kapoor and a cheque for Rs. 6,500 was given by Mrs. Ashaiata Kapoor in favour of Ramrikhdas Mamraj, which was cashed on 18th November 1942. It was contended on behalf of the respondents that Mrs. Kapoor had lent Rs. 7,500 toner husband Mr. Kapoor for the purpose of partnership. Mr. Khosla, D.W. 1, has corroborated the evidence of Mrs. Kapoor on the point. For the appellant, it was pointed that it was improbable that Mrs. Kapoor should lend this amount to the firm without any document being executed. But. there is no evidence adduced on behalf of the plaintiff to show that Mrs. Ashaiata Kapoor in whose favour the cheque, Exhibit 3/A, was drawn was a mere benamidar for Mr. Kapoor. On the other hand, there is evidence that Mrs. Kapoor was in possession of the necessary funds at the material time. D.W. 3 stated that in 1943 Mrs. Kapoor was owner of a race-horse named Sublaw which was worth about Rs. 10,000 or thereabout. The witness added that the horse had won the Governor's Cup in the Tollygunge race. The evidence of J.N. Ray, Manager of the Bengal Central Bank, also shows that Mrs. Kapoor had purchased shares in the Bengal Central Bank in her own. name worth about Rs. 1,000. There is also no evidence adduced in the case that Mr. Kapoor had any motive for entering into a penami transaction, Budh Singh admitted that Mr. Kapoor paid off all the advances made by him for the partnership business to the extent of Rs. 1,13,000 before 24th of November 1942. There is in truth no evidence to suggest that Mr. Kapoor was heavily indebted at the time. On the contrary, D.W. 3, Kalicharan Poddar deposed that in 1942 Mr. Kapoor was owner of a separate race-horse. The letter Exhibit D/l shows that in September 1943 Mr. Kapoor had made a donation of Rs. 5,005 to the war fund. It is manifest that there was no motive for Mr. G.C. Kapoor to enter into any benami transaction at the material time. There are other facts to be taken into account. After the purchase of the Morabadi garden Mr. Kapoor granted a lease of it on behalf of her minor son to the military authorities. The first lease was executed on 12th of April 1945, Exhibit E/1, in which there is, a statement that Rs. 1,850 would be paid as rent to Mrs. Ashaiata Kapoor as guardian of Motichand Kapoor. 'The second lease, Exhibit E/l, was executed on 29th of October 1946 and there was a clause therein that Rs. 2,300 would be payable as annual rent to Mrs. Ashalata Kapoor as guardian of Motichand Kapoor. Mrs. Kapoor gave evidence that she had been realising rent from the authorities on behalf of her son. Upon a review of the evidence it is apparent that the plaintiff has not established that the Morabadi garden was purchased benami by Mr. G.C. Kapoor in the name of her minor son Motichand Kapoor.