PROMODE KUMAR ROY Vs. KALI MOHAN SAHA PRAMANICK

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for partition of land upon establishment of title. The subject-matter of the litigation is described in the plaint as 6 gds 2k. 2kr. share in sikimi taluk Mohammad Amiruddin including, amongst others, released Mouzas Champaknagar and Kalai Gobindapur known as Budhiamara re-formed after diluvion of Alinagar. The case for, the plaintiffs is that the disputed property belonged at one time to a wealthy Muhammadan lady of Dacca, by name Akikannessa Bibi, and that by successive devolution, the share mentoned has vested in them. The case for the first four defendants, who alone contested the claim, is that the interest has devolved on them, and that this litigation. has been engineered by the fifth defendant, Lolitmohan Ray, a Pleader at Dacca, because he was unsuccessful in his effort to secure the property for his own benefit. The lands in controversy have a long and complicated history; but upon an examination of the evidence and a review, of the relevant facts, the Subordinate Judge has come to the conclusion that the plaintiff had no vestige of a title and that they had failed to establish their possession within 12 years antecedent to the suit. In this view, the Subordinate Judge has dismissed the suit with costs. On the present appeal, the arguments have been directed towards two fundamental questions, namely, first, whether, successive purchases of the interest of Akikannessa by Abdul Majid and Abdul Azith were genuine or fictitious transactions; and, secondly, whether one Asmatannessa had a share in Champaknagar and Kalai Gobindpur, known as Budhiamara Khalasimahal, and, if so, how much. A subordinate point has also been argued with regard to the title to an indigo factory and lands appertaining thereto.

(2.) As regards the first point, it is not disputed that one Kalachand Mukerji obtained a decree for money against Akikannessa in 1891, and in execution brought the disputed properties to sale on the 9 March 1892 when Abdul Majid became the purchaser of three lots, two for Rs. 45 and a third I for Rs. 42 making an aggregate of Rs. 87. The sale was confirmed on the 13th May 1892. The plaintiffs contend that the purchase was made by Akikannessa herself in the name of Abdul Majid. In support of this conclusion, reliance is placed upon the surrounding circumstances, and it is urged that as Akikannessa was heavily indebted at the time, she had a motive to place her properties in the name of an ostensible owner. Our attention is drawn to the fact that on the 3 February 1882, she borrowed Rs. 30,000 on mortgage from Ruplal Das and Raghunath Das, two well known bankers of Dacca, and that the mortgagees sued on the 9 April 1891 to enforce their security, which resulted on the 30 June 1892 in a decree for over Rs. 88,000. Besides this, in 1890, Nawab Asanullah of Dacca obtained a decree against her for more than Rs. 4,000 and when he attempted to realise his dues in execution, claims were preferred by her relations who had taken from her three deeds of gift or release on the 5 March 1891. These claim cases were unsuccessful, and the suits which were thereafter instituted by the disappointed claimants on the 22nd January, 1892, were all ultimately dismissed on the n January, 1913. There can, we think, be little doubt that Akikannessa was pressed by her creditors in 1891 and was in considerable embarrassment at or about the time when Kalachand Mookerjee obtained his decree against her. There is also little doubt that she had) recourse at the time to fictitious transfers as is sufficiently indicated by the result of the claim cases mentioned. The defendants urge, however, that it does not necessarily follow that the purchase by Abdul Majid was fictitious, merely because the judgment-debtor was involved in litigation and made ineffectual efforts to place her estate beyond the reach of her creditors. But we are pressed to take into consideration also other events which happened immediately afterwards. In 1895 one Ayesha Akhtar Khatun, a co- sharer Zemindar, obtained a rent decree against Akikannessa and others. The decree was executed and the disputed properties were purchased on the 15 December 1896 by one Chandrakumar Ray, on behalf of the fifth defendant, Lalitmohan Ray, for-a sum of Rs. 500. This sale was confirmed on the 24 February 1897. At the same time, a similar decree was obtained by the same plaintiff against Golamulla and others, with the result that, at the sale which followed, Chandrakumar Ray became the purchaser as before for Rs. 805 and the sale was confirmed, on the 24 February 1897. Before confirmation of the sales, Chandra kumar Ray and Lalitmohan Ray, however, jointly executed a conveyance, in favour of, Abdul Azim on the 13 January 1897 for a sum of Rs. 1,605, that is, upon a profit of Rs. 300 on the purchase-money actually paid at the execution sales. Meanwhile, Jabinda Khatun and others, another set of co-sharer Zemindars had obtained two rent-decrees in 1895 against Golamulla and others. The decree-holders took out execution, whereupon Abdul Azim preferred two claims. On the 4 January 1898, the claims were allowed, except in respect of the share of Akikannessa in taluk Muhammad Amiruddin. On the 24 February, 1898 Abdul Aziz, whose claim had thus proved abortive in part, took a conveyance from Abdul Majid for a sum of, Rs. 199. The substance of the transaction was that Abdul Aziz, who had failed in his claim, in respect of the share of Akikannessa, acquired the outstanding title from Abdul Majid, so that he might be able to rely thereupon in the event of future dispute. The decree-holders, Jabinda Akhtar Khatun and others, proceeded with execution of their decree in so far as the claim order allowed, and on the 14 March 1898, Tarinicharan Saha became purchaser for Rs. 625 of the share of Akikannessa in taluk Muhammad Amiruddin. On the 24 April 1902 Abdul Azim executed a conveyance in favour of Nurennessa, the daughter-in-law of Akikannessa, in respect of the taluks together with arrears of rent, for a sum of Rs. 6,000. On the 2nd June 1902 Nurennessa granted a mirash tenure of the properties to Abdul Azim and his brother Abdul Halim on receipt of Rs. 2,500 as bonus and on a net annual rental of Rs. 600, the lessees undertaking to pay in addition the head rent direct to the Zemindars. On the 17th March 1904 Nurennessa conveyed her right to receive rent under the lease of 2 June, 1902, to the fifth defendant Lalitmohan Roy for a consideration of Rs. 6,000. Thereafter, on the 3rd December 1909, Tarinicharan Saha and his brother, Chandranath Saha, conveyed their interest to the present plaintiffs and others for a sum of Rs. 500. On the 27 September 1913 the plaintiffs instituted this suit on the strength of their purchase. The history outlined above makes it plain that the title of the plaintiffs is dependent upon the true effect of the purchase by Tarinicharan Saha on the 14 March 1898. That "title is ineffectual against the contesting defendants, if a real interest had already vested in Abdul Azim by virtue of his purchase dated 24 February 1898, from Abdul Majid, who had acquired the interest of Akikannessa under the sale which was held on the 9 March 1892 in execution of the decree obtained by Kalachand Mukherjee, and was confirmed on the 13 May 1892. The plaintiffs are, consequently, driven to assert that the purchase by Abdul Majid on the 9 March 1892, as also the purchases by Abdul Azim on the 13 January 1897 from Lalitmohan Ray and on the 24 February 1908, from Abdul Majid were fictitious transactions, which left the title of Akikanessa wholly unaffected and free to vest in the defendants through the purchase of Tarinicharan Saha. The Subordinate Judge has held that the purchases by Abdul Majid and Abdul Aziz were all genuine transfer. In our opinion, no good grounds have been established to justify our dissent from this conclusion.

(3.) It is important to bear in mind in this class of cases that, as pointed out by lord Phillimore in Maniklal Mansukbhai V/s. Bijoy Singh 62 Ind. Cas. 356 : 25 C.W.N. 409 : (1921) M.W.N. 80 (P.C.) the decision of the Court should rest not upon suspicion but upon legal grounds established by legal testimony. This recalls the earlier pronouncements to the same effect by Lord Westbury in Sreemanchnnder Dey V/s. Gopaulchunder Chuckerbutty 11 M.I.A. 28 at p. 43 7 W.R. 10 (P.C.) : 2 Sar. P.C.J. 215 : Suth P.C.J. 651 : 20 E.R. 11 (P.C.) and by Sir Lawrence Jenkins in Mina Kumari Bibi V/s. Bijoy Singh 40 Ind. Cas. 242 : 44 I.A. 72 : I.P.L.W. 425 : 5 L.W. 711 : 32 M.L.J. 425 : 21 C.W.N. 585 : 21 M.L.T. 344 : 15 A.L.J. 382 : 25 C.L.J. 508 : 19 Bom. L.R. 424 : (1917) M.W.N. 473 : 44 C. 662 (P.C.). But we are not unmindful that, in the words of lord Hobhouse in Uman Parshad V/s. Gandharp Singh 14 I.A. 127 : 15 C. 20 : 5 Sar. P.C.J. 71 : Rafique and Jackson's P.C. No. 98 : 11 Ind. Jur. 474 : 7 Ind. Dec. (N.S.) 599. (P.C.) and of lord Shaw in Muhammad Mahbub Ali Khan V/s. Bharat Indu 53 Ind. Cas. 54 : 23 C.W.N. 321 : (1919) M.W.N. 507 (P.C.) as benami transactions are very familiar in Indian practice even a slight quantity of evidence to show that it was sham transaction may suffice for the purpose. The person who impugns its apparent character must not rely, however, solely on probabilities, as Lord Buck-master observed, in Irshad Ali V/s. Kariman 26 Ind. Cas. 217 : 22 C.W.N. 530 : (1918) M.W.N. 394 : 21 O.C. 86 : 5 O.L.J. 197 : 28 C.L.J. 173 : 20 Bom. L.R. 790 : 24 M.L.T. 86 (P.C.). He must show something definite to establish that it is a sham transaction on the principle that the burden of proof, lies upon the person, who claims contrary to the tenor of a deed and alleges that the apparent is not the real state of things; Nawab Azimut Ali Khan V/s. Hurdwaree Mull 13 M.I.A. 395 : 14 W.R.P.C. 14 : 5 B.L.R.P.C. 578 : 2 Suth P.C.J. 343 : 2 Sar. P.C.J. 571 : 20 E.R. 599; Faez Buksh Chowdhury V/s. Fukeeroodeen Mahomed 14 M.I.A. 234 : 9 B.L.R. 456 : 2 Suth P.C.J. 490 : 2 Sar. P.C.J. 733 : 20 E.R. 755; Suleiman Kadr Bahadur V/s. Mehndi Begam 25 C. 473 : 25 I.A. 15 : 2 C.W.N. 186 : 7 Sar P.C.J. 254 : 13 Ind. Dec. (N.S.) 313 (P.C.); Nirmal Chunder Banerjee V/s. Mahomed Siddik 25 A.I. 225 : 26 C. 11 : 7 Sar. P.C.J. 383 : 13 Ind. Dec. (N.S.) 611 (P.C.); Moti Lal V/s. Kundan Lal 39 Ind. Cas. 964 : 21 C.W.N. 920 : 32 M.L.J. 468 : 15 A.L.J. 329 : 1 P.L.W. 490 : 25 C.L.J. 581 : 19 Bom. L.R. 471 : 22 M.L.T. 10 : (1917) M.W.N. 464 : 6 L.W. 2 (P.C.)The most important test to be applied in these is, as observed by Mr. Amir Ali in Nityamoni Dassi V/s. Lakhan Chunder Sen 33 Ind. Cas. 452 : 43 C. 660 : 24 C.L.J. 1 : 20 C.W.N. 522 : 30 M.L.J. 529 : (1916) 1 M.W.N. 332 : 3 L.W. 471 : 18 Bom. L.R. 418 : 20 M.L.T. 10 (P.C.) the source whence the consideration came, Sir George Farwell formulated the same test in different language, when, he observed in Bilas Kunwar V/s. Desraj Ranjit Singh 30 Ind. Cas. 299 : 42 I.A. 202 : 37 A. 557 : 22 C.L.J. 516 : 19 C.W.N. 1207 : 29 M.L.J. 335 : 2 L.W. 830 : 18 M.L.T. 248 : 13 A.L.J. 991 : 17 Bom. L.R. 1006 : (1915) M.W.N. 757 (P.C.) that where it is asserted that an assignment in the name of one person is really for the benefit of another person, the principle applies that the trust of the legal estate results to the man who pays the purchase-money. To the same effect is the, decision of the Judicial Committee in Parbati Dasi V/s. Baikuntha Nath Das 22 Ind. Cas. 51 : 18 C.W.N. 428 : 15 M.L.T. 66 : (1914) M.W.N. 42 : 12 A.L.J. 79 : 19 C.L.J. 129 : 16 Bom. L.R. 101 : 26 M.L.J. 248 (P.C.) which re-calls the earlier pronouncements by Lord Campbell in Dhurm Das Pandey V/s. Musammat Shama Soondari Dibiah 3 M.I.A. 229 : 6 W.R.P.C. 43 : 1 Suth. P.C.J. 147 : 1 Sar P.C.J. 271 : 18 E.R. 484 and by Knight Bruce, L.J., in Gopeekrist Gosain V/s. Gungapersaud Gosain 6 M.I.A. 53 : 4 W.R.P.C. 26 : 1 Sar P.C.J. 493 : 2 Suth. P.C.J. 13 : 19 E.R. 20 where, however, from the lapse of time, direct evidence of a conclusive or reliable character is not forthcoming, as to the payment of consideration, the case must be dealt with on reasonable probabilities and legal inferences arising from proved or admitted facts. Sir Arthur Wilson emphasised this when, he observed in Dalip Singh v. Chaudhrain Nawal Kunwar 35 I.A. 104 : 30 A. 258 : 10 Bom. L.R. 600 : 12 C.W.N. 609 : 14 Bur. L.R. 151 : 4 M.L.T. 141 (P.C.) that if the evidence on neither side, is wholly convincing as to the fundamental criterion, namely, the source of the purchase-money, if the evidence given and withheld is open to adverse criticism, the Court must rely on 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, including their dealings with or enjoyment of the disputed property; see Upendra Nath Nag V/s. Bhupendra Nath Nag 32 Ind. Cas. 267 : 21 C.W.N. 280. We must further look to the substance of the transaction as evidenced in the deeds of the parties, not, permitting the real question to be obscured by what Knight Bruce, L.J., calls, in Hunoomanpersaud Pandey V/s. Musammat Babooee Munraj Kunweree 6 M.I.A. 393 : 18 W.R. 81 n. : Sevestre 253 n. : 2 Suth P.C.J. 29 : 1 Sar P.C.J. 552 : 19 E.R. 147 the form of expression, the literal sense nor by what Lord Macnaghten describes, in Lal Achal Ram V/s. Raja Kazim Hussain Khan 32 I.A. 113 : 9 C.W.N. 477 : 8 O.C. 155 : 47 A. 271 : 15 M.L.J. 197 : 8 Sar. P.C.J. 772 (P.C.) as exhibitions of the art of the conveyancer in the shape of recitals of obviously untrue statements introduced to impart some additional solemnity to an instrument.