SARADINDU MUKHERJEE Vs. SMKUNJA KAMINI ROY

JUDGEMENT

(1.) This appeal is on behalf of defendant 1 and it arises out of a suit for recovery of arrears of rent. Defendant 1 and three other persons took a mokarari lease of a large quantity of land in the Sundarbans from the predecessors of the plaintiffs, under a registered potta, dated 16th July 1928. The rent reserved was Rs. 5600 a year, payable in four instalments, in the months of Poush, Magh, Falgoon and Chait, every year. Besides this yearly rent, the lessees undertook to pay revenues and cesses payable in respect of the property and also rents due by the lessors to their superior landlords. Defendant 1 subsequently acquired the interest of his other three cosharers in the tenure and became the sole owner thereof. In 1932 there were certain litigations between the lessors and defendant 1 and as a result of these the rent was reduced from rupees 5600 to Rs. 5100 a year, all the other terms of the potta being kept intact. On 27 January 1936, corresponding to 13 Magh 1342 B.S., defendant 1 sold his interest in the tenure to defendant 2. The present suit was brought by the plaintiffs lessors on 12 April 1938 and they claimed arrears of rent for the period commencing from the Poush kist of 1342 B.S. and ending with the Falgoon kist of 1344 B.S. The claim was laid at Rs. 18027 odd. The plaintiffs case was that defendant 2 was a relation and benamdar of defendant 1 and the transfer in her favour was a collusive and sham transaction. They therefore claimed rents from both the defendants.

(2.) The trial Judge came to the finding that defendant 2 was not a benamdar of defendant 1 and in his opinion the question of benami could not be raised by the plaintiffs, who were no parties to the conveyance. The conclusions of the Subordinate Judge therefore were that defendant 1 was tenant up to 27 January 1936 and for the subsequent period in suit, defendant 2 was the tenant. The learned Judge however refused to apportion the liability of these two defendants, being of opinion that this was neither easy nor proper. Defendant 1 has come up to this Court on appeal and the only contention put forward on behalf of him by Mr. Gupta is that on the findings arrived at by the Subordinate Judge himself, the appellant should not have been made liable for rents that fell due after the date of the transfer of the tenure to defendant 2 and that for the subsequent period defendant 2 alone should have been made liable. It seems to us that if the conclusions of law and fact arrived at by the Subordinate Judge be accepted as correct, his decision cannot possibly be supported. According to the Subordinate Judge defendant 1 ceased to be a tenant on and from 27 January 1936 and he was further of opinion that he was not personally liable under the terms of the Potta for any rent that accrued due subsequent to the transfer. In these circumstances it is difficult to see why there was a joint decree made against both the defendants, when their liability could have been easily apportioned on the materials appearing on the face of the record.

(3.) Mr. Das who appears on behalf of the plaintiffs respondents, has appreciated the difficulty in his way and he has attempted to support the decision of the Subordinate Judge on grounds other than those upon which the latter relied. The contentions put forward by him are of two- fold character. In the first place, he says that the Court below should have held on evidence that defendant 2 was a mere benamidar of defendant 1 and it erred in law in holding that the plaintiffs were incapable of raising the question of banami in the present litigation. The second ground taken is that even if defendant 2 was not a benamidar of defendant 1, defendant 1 as one of the original lessees, was bound by the personal covenant in the Potta to pay the rent in spite of the fact that he had assigned his interest to another person. These are the two points that require consideration in this case. So far as the first point is concerned we agree with Mr. Das that the Court below was wrong in holding on the authority of the decision in Lala Achalram V/s. Raza Kazim Hussain Khan ( 05) 27 All. 271, that the plaintiffs not being parties to the deed of transfer were not competent to raise the question of benami in the present litigation. As was held in Kamini Kumar Deb V/s. Durga Charan Nag ( 23) 10 A.I.R. 1923 Cal. 521, the principle enunciated by the Judicial Committee in Lala Achalram V/s. Raza Kazim Hussain Khan ( 05) 27 All. 271 that a stranger to a deed which is intended to be real and operative between the parties thereto cannot dispute the payment or non-payment of the consideration or its adequacy or inadequacy has no bearing in a case where the deed is challenged as fictitious and never designed to operate as real deed or to effect transfer of title. We think however that the evidence which has been adduced on behalf of the plaintiffs in the present case falls short of what is necessary to establish a case of benami. The only witness who has been examined on behalf the plaintiffs is his officer Jogesh Chandra Dey. This witness in his deposition states as follows: Saradindu Babu said that he had made the benami transaction in his relation's name and that defendant 2 was his relation and mother-in-law... We learnt on enquiry that Nanda Rani has no means to purchase properties for Rs. 4000 and Saradindu Babu himself maintains her.