SURENDRA NATH HALDAR Vs. RAMANATH BARMAN

JUDGEMENT

(1.) The suit that has given rise to the present appeal was one for declaration of title to and recovery of possession of some landed properties. The facts which are relevant for the purposes of the present appeal are briefly those : The plaintiff obtained a money decree against the predecessors of defendants 1 to 5 and defendant 6 and on 12 March 1903 in execution of that decree he attached the entire property in suit. On 18 April 1903 there were two claim cases tiled against that attachment. One was in respect of the one-third share of the property and the other was in respect of the remaining two-thirds. The first claim was rejected, but the second case that was brought by one Nanda Kumar Chatterjee was allowed on 11 May 1903 and the two-thirds share was thereupon released from attachment. During the pendency of the claim case however Nanda Kumar sold the two-thirds share to defendant 7. This was on 19 April 1903. On 19 May 1903 the one-third share was purchased by the plaintiff at an auction sale and this sale was confirmed on 16 September 1903. Thereafter in the year 1914 the plaintiff started an execution case (Case No. 45 of 1914) praying for sale of the two-thirds share on the allegation that defendants 1 to 5 ware the real purchasers at the sale of 19 April 1903 and defendant 7 was nothing but a benamidar for them. Some objections wore filed in this execution case by defendants 1 to 5 but the two-thirds share was ultimately purchased in auction by the plaintiff.

(2.) This was on 19 September 1916 and this purchase by the plaintiff was confirmed on 26 May 1917 and symbolical possession was given to the plaintiff. On the basis of this purchase as also the purchase of he one-third share on 16 September 1903 the plaintiff brought a suit for declaration of title to and recovery of possession, the suit that has given rise to the present appeal. Defendants 1 to 5 did not contest and the contest so far as it related to the two-thirds share was between the plaintiff on one side and defendant 7 alone on the other, the case of defendant 7 being that he was not the benamidar for defendants 1 to 5, but the real purchaser at the sale by Nanda Kumar on 19 April 1903. Both the Courts below dismissed the plaintiff's case as regards the one-third share on the ground that so far as this share was concerned plaintiff had no cause of action; and as regards this one-third share there is no appeal before us. As regards the two-thirds share the first Court dismissed the plaintiff's suit holding that defendant 7 was the real purchaser and not the benamidar for defendants 1 to 5. This decision of the Court of first instance as regards the two-thirds share was reversed by the Court of appeal below and the appellate Court gave a decree to the plaintiff in respect of the two-thirds share, finding that defendant 7 was the benamidar for the real purchasers-defendants 1 to 5 at the sale on 19 April 1903. Defendant 7 has appealed to this Court.

(3.) On behalf of the appellant it was in the first place contended before us that the lower appellate Court when it found that the evidence on the source of money that was actually paid for the purchase was not clear was wrong in law in holding that the ostensible purchaser was not the real purchaser at the sale. It is true that the source of money is a very important test in deciding a question of benami. But there is no authority for the proposition that unless the source is established there can never be any finding of benami however good and numerous other facts and circumstances there may be pointing to such a finding. In the present case the learned Judge although ha was of opinion that the evidence on the source of money actually paid for the purchase is not very clear, came to a number of clear findings bear-in;.; on the point. He found that about the time of the conveyance of 19 April 1903 defendants 1 to 5 had borrowed a substantial sum of money. He found that at the time of the transaction the defendants were in funds. He found further that the conveyance was for the real benefit of defendants 1 to 5. He further found that defendant 7 abstained from making any claim or taking any steps in the execution proceedings during the years 1914 to 1917.