APPA DHOND SAVANT Vs. BABAJI KRISHNAJI GHOGLE

JUDGEMENT

(1.) These are two companion appeals in original Suits Nos. 302 and 325 of 1913 filed in the Court of the Subordinate Judge of Malvan. The claims were rejected in the trial Court, but were decreed by the lower appellate Court. The property in suit belonged in 1857 to two brothers, Dhond and Vithal Savant. They conveyed the property by a deed dated the 9th February 1857, together with two other Thikans, to their sister's husband Raghoji Ghogle for Rs. 225. The defendants who resist the claims of the plaintiffs, as the descendants of Raghoji, are the widow and children of Dhond Savant. They alleged that, with regard to the Thikan in suit, Babaji which was called Thikan Modapa, the transaction with the Ghogles was benami, and they rely on certain transactions with that Thikan after 1857 to show that it was intended, when all the three Thikans were conveyed, that Raghoji should hold the Modapa Thikan benami for the vendors. The contention, therefore, is that the Court, upon considering the evidence, can split up the contents of a document relating to a transaction regarding immoveable property in order to hold that part of it was genuine, while the other part was benami. Considering the time that has elapsed since these lands were conveyed to Raghoji, it seems in any circumstances a difficult task for the vendor's descendants to prove that that transaction was either wholly or partially benami.

(2.) But a question arises at the threshold whether a Court can entertain a contention of this description, which certainly would be, in my opinion, an extension of the law with regard to benami transactions. Benami transactions, it may safely be assumed are generally effected in order to conceal some fraud, or in order to support some object of a discreditable nature. But though the Courts have in the past recognized that the ostensible owner in a benami transaction can be ordered to restore the property to its original owner, I for my part would certainly not be willing to extend that doctrine and to hold that a transaction can be partly genuine and partly unreal, unless there are very strong reasons for obliging the Court to come to such a conclusion. I should say, therefore, that in this case we should not allow the defendants to set up this particular contention that the transaction of 1857 was benami so far as the Modapa Thikan was concerned.

(3.) Undoubtedly the facts proved support the contention that there was some secret arrangement between these two families which were so closely connected. But I do not think that there is anything on the record to satisfy me beyond all doubt that there was an understanding between the parties in 1857 which can be at the present day reduced into words.