BIJOY KANT DEY Vs. RADHA KANT DEY

JUDGEMENT

(1.) This appeal was first placed before a Division Bench consisting of Mr., Justice S.S. Hasan and Mr. Justice Satyeshwar Roy. The question involved in the appeal was as to whether the house in question was acquired by the plaintiff-respondent in the Benami name of his son, the defendant-appellant Mr. Justice Hasan held that the plaintiff-respondent failed to prove that it was he, who acquired the property in the Benami name of his son, the defendant-appellant. Mr. Justice Roy, on the other hand, was of the view that the house in suit was acquired by the plaintiff-respondent in the Benami name of his son, the defendant-appellant. The appeal was, therefore, allowed by Mr. Justice Hasan but was dismissed by Mr. Justice Satyeshwar Roy. In these circumstances the appeal has been placed before me.

(2.) Shortly stated, the plaintiff-respondent filed a suit for declaration that the property standing on plot No. 579 belonged to the plaintiff and that the defendant was his Benamidar. According to the plaintiff, the lands in question were acquired by him under two sale-deeds dated 24-11-1940 and 24-11-1940 in the Farzi name of his son (the defendant) who was a minor at that time. According to the plaintiff, he was in remunerative employment and had means to pay the price of the land and was also in a position to construct a house thereon. Further according to the plaintiff, the defendant was a minor and had no income of his own, the consideration money for the purchase of the lands was paid by the plaintiff. The defence, inter-alia, was that the defendant was not a minor and that he had started earning small amount and had saved some money. Out of his savings, it is said, he purchased the land in question from Amiya Mitra and Rup Narain Choudhary for Rs. 47 and Rs. 216 respectively under the two sale-deeds (Exts. 1 and 1/f). The allegation of the plaintiff that he was in possesession of the suit property was also denied. According to the defendant, the plaintiff was living in the house being his father.

(3.) In support of their respective cases, parties led evidence, both oral and documentary. The trial Court on appreciation of the evidence so adduced came to the conclusion that the appellant was not a minor in the year 1940 when acquisitions were made. It also held that the two sale-deeds (Exts. 1 and 1/f) came from the custody of the plaintiff but according to it, that was of no consequence on the facts of this case. It further held that both the plaintiff and the defendant were in possession of the House. With regard to motive, the trial Court was of the opinion that there was no motive as such for the plaintiff to acquire the lands in the name of his son. But it found as a fact that the consideration money for the purchase of the land under Exts. 1 and 1/f was paid by the plaintiff. It, therefore, held that the defendant was a Benamidar of the plaintiff. On these findings, the suit was decreed.