DEVJI SHIVJI Vs. KARSANDAS RAMJI

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit in which a declaration was sought that a registered deed of assignment dated 7-8-1948, executed by the plaintiff in favour of the defendant No. 1 with regard to the assets and the goodwill of the business, which was carried on in the name and, style of Devji Shivji & Sons, was a mere benami document. The plaintiff had further prayed that a decree be passed in his favour against the defendants declaring that the sum of Rs. 52,308/10/6 standing to the credit of Devji Shivji & Sons in the Lloyds Bank Limited, Calcutta, belongs to him. The defendant No. 1 is the son-in-law of the plaintiff, and the defendant No. 2 is the Lloyds Bank with whom the money is in deposit.

(2.) The case put forward by the plaintiff was that under the advice of the defendant No. 1, who since May, 1947, had been looking after his affairs and managing his business known as Devji Shivji & Sons, he executed the deed of assignment and also a power of attorney dated 21-8-1947 constituting the defendant No. 1, one Mohanlal Odhabji Thacker and his wife Kamla, Bai as his attorney and authorising them to manage the affairs and the property including the business known as Devji Shivji & Sons. According, to the plaintiff's allegation, shortly before the institution of this suit he had come to know that the defendant No. 1 had opened an account in the name of Devji Shivji & Sons in the Bank of India Limited, Calcutta, and had deposited, with the bank some cheques which had been received from customers as the price of the coal business of the plaintiff which was carried on under the name and style of Devji Shivji & Sons and that after closing the said account he had opened another account with the Lloyds Bank Limited in the name of Devji Shivji & Sons and had deposited with them cheques received from the customers as the price of coal and had been operating the same account. A cheque for Rs. 42,637/10.00 had been received; from the plaintiff's customer Messrs. Indian General Navigation and Railway Company Limited, Calcutta, for the value of coal supplied to them in April, 1948, and this cheque had been deposited with the Lloyds Bank in the name of Devji Shivji & Sons by the defendant. The amount now standing to the credit of Devji Shivji & Sons in the said account in Rs. 52,308/10/6p. which the plaintiff seeks to recover in this suit. He has further prayed for an injunction restraining the defendant No. 1 from receiving the said amount and the defendant No. 2 from paying the said amount to the defendant No. 1.

(3.) The defendant No. 1 resisted the plaintiff's claim, and his contention was that the deed of assignment was not a farzi or a benami document and that it had been executed by the plaintiff as he had great affection for the wife of this defendant who was his daughter by his first wife. He alleged that he had paid a consideration of Rs. 1000.00 for this document and that it had been operative ever since the date of its execution. The amount sought to be recovered was alleged to be in deposit with the Lloyds Bank with whom the defendant, after the transfer in his favour, had opened an account in the name of Devji Shivji & Sons.