ABDUL SATTAR Vs. MLRANI HIRA DEI

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for declaration that a pucca house, described in the plaint, is his property and is not liable to be attached and sold in execution of decree No. 32 of 1926 obtained by defendant 1 against the plaintiff's father, defendant 2. The plaintiff's objection to attachment under Order 21, Rule 58, Civil P.C, was dismissed. He then filed the present regular suit for the relief above mentioned. The Court of first instance decreed the suit. On appeal by defendant 1 the lower appellate Court upheld the defence that the house in dispute belonged to defendant 2, the judgment-debtor. Accordingly it dismissed the suit; hence this appeal. The house in dispute stands on the site of an old kachcha house which was purchased in the name of the plaintiff on 25 January 1891, for a small sum of Rs. 140. It is common ground that the whole construction was pulled down and the house that now stands was erected at a cost of nearly Rs. 2,000. The plaintiff's case is that the sale-deed was not benami, and that the present house was built with funds belonging to him. In elaborating his claim the plaintiff alleged in his plaint that his maternal grandfather, Ghulam Sarwar, had supplied the consideration of the sale-deed, and that the subsequent construction of the house was likewise made with funds supplied by Ghulam Sarwar. It is not disputed that the plaintiff was 7 years old when the house was purchased in his name. The defence, on the other hand, was that the sale-deed had been taken by Abdul Samad, defendant 2, benami in the name of his son, the plaintiff, and that it was defendant 2 who erected the present building. The lower appellate Court has discussed the evidence bearing on the question of ownership thus raised in the pleadings and arrived at a finding that: the plaintiff has failed to prove that his maternal grandfather, Ghulam Sarwar, supplied the money for purchase of the site or construction of the building. It is more natural under the circumstances to hold that it was Abdul Samad who defrayed the costs. The mere fact that the land was purchased in the name of the plaintiff does not mean that the plaintiff became the owner of it.

(2.) This finding of fact would have been conclusive in second appeal and not open to discussion, but the appellant has seriously challenged it on the ground that the burden of proof has been wrongly thrown on the plaintiff. It is argued that the sale-deed of 25 January 1891 being in favour of the plaintiff he is ex facie the owner of the property conveyed thereby, and that the burden of proving that it was benami for defendant 2 lay on defendant 1 who impugns the ostensible character of the deed. As regards the building subsequently erected on the site of the kachcha house acquired under the aforesaid sale-deed, it is contended that the ownership of the superstructure follows the ownership of the land on which it stands, and that prima facie the owner of the land also owns every thing permanently attached to it. On behalf of the respondent we have been referred to a number of decisions of various High Courts in which it was held that the ordinary rule as regards burden of proof does not apply where the plaintiff who unsuccessfully objected to attachment under Order 21, Rule 58, Civil P.C, institutes a suit for the establishment of his right to the attached property relying on a deed of transfer which is impugned by the successful decree-holder on the ground that it is benami for his judgment-debtor. It is said that in such a case the plaintiff ought to establish not only the due execution of the deed of transfer in his favour, but he should go further and establish that the ostensible transferee under the deed is also the real transferee. In other words, it should be presumed after the plaintiff's objection to attachment has been dismissed that the deed is benami for the judgment-debtor unless the contrary is proved by the plaintiff. This contention finds support from the case of Govind Atmaram V/s. Santai (1888) 12 Bom 270, in which a Division Bench of the Bombay High Court held, relying on two earlier cases of that Court that: the defendant-having obtained an order maintaining an attachment it was incumbent on the plaintiff, who impugns that order to prove her case by establishing that the purchase money had been paid by him and that he had been since in possession.

(3.) This case was followed in Nanhi Jan V/s. Bhuri (1908) 30 All 321, in which a Division Bench of this Court held: that a party intervening in the execution department, and failing in his objection to an attachment, and consequently being obliged to bring a suit under Section 283, Civil P.C. (Order 21, Rs. 63, Civil P.C, 1908), must, give prima facie evidence to establish the genuineness of the document upon which he relies.