LAWS(PVC)-1942-9-57

BISHWANATH S/O. KARUNA SHANKAR SHUKLA AND ANOTHER Vs. SURAT SINGH ALIAS CHHUTTUSINGH S/O. BHABHUTSINGH AND ANOTHER

Decided On September 09, 1942
Bishwanath S/O. Karuna Shankar Shukla Appellant
V/S
Surat Singh Alias Chhuttusingh S/O. Bhabhutsingh Respondents

JUDGEMENT

(1.) THE facts of this case are that one Mohbatsingh executed in 192S a bogus sale deed of the property in suit in favour of Darshansingh, respondent 2. Mohbatsingh died in 1929. The bogus sale deed was executed for the illegal purpose of cheating certain creditors. After Mohbatsingh's death the plaintiff purchased the property from Darshansingh in 1935, knowing that the sale deed was bogus, and has brought the present suit to eject Mohbatsingh's brother Suratsingh from the lands on-the strength of his sale deed. He has in the alternative asked for refund of consideration from Darshansingh, who admits that he is liable to pay Rs. 175 if the claim on the sale deed fails.

(2.) RESPONDENT 1, Suratsingh's plea was that the plaintiff knew the benami character of Darshansingh's title and had taken the sale deed simply to harass him. He did not set up a title in himself by succession to his brother but claimed that the property was his own before his brother ever purported to dispose of it to Darshansingh, and relied on a registered deed dated 20th July 1900. It has been found by the trial Court that the question Whether the property originally belonged to Mohbatsingh owing to partition or belonged to Surat singh in view of the document of 20th July 1900 is concluded by res judicata based on the following facts. In a former suit Surat singh was sued by the plaintiff as heir and legal representative of Mohbatsingh and the property in suit was attached in execution by the plaintiff as the assets of Mohbatsingh in the hands of his legal representative, and it was decided on the objection of Suratsingh that the property was an asset of Mohbatsingh in his hands. The first appellate Court has dismissed the suit and the first contention of the appellants is that respondent 2, Darshansingh and his successor could maintain a successful suit against the vendor (if he were alive) to recover the property on the strength of a bogus sale deed for the reason that a defendant who has to plead fraud in such a case must fail. Further it is said that a transfer in fraud of creditors stands unless and until it is avoided by the creditors. A third contention is that a benamidar can give good title to his vendee and that a title so obtained will not be liable to attack at any rate by a "trespasser like Suratsingh who has not established his title."

(3.) THE next contention of the learned advocate for the appellants is that the benamidar can give a good title which cannot in, any case be questioned by a "trespasser, like Suratsingh." Reliance is placed on Narainrao v. Hanumantram What was decided in that case was that a benamidar could pass a good title in view of Section 41, T.P. Act, and moreover, if the benamidar has assigned a mortgage deed, to another person and the latter transaction is also benami, the latter person can sue on the mortgage. The facts of the case were that a mortgage in favour of A was assigned to B, a benamidar, who in turn assigned it to the plaintiff K. It was found as a fact that K took the assignment in good faith after reasonable enquiry. One ease relied on was the Privy Council case, Gur Narayan v. Sheolal Singh A.I.R. 1918 P.O. 140 where it was laid down that an action may be maintained by a benamidar who represents the real owner and is a mere trustee for him. Ravji v. Mahadev 22 Bom. 672, also relied on, lays down that a benamidar can sue, Bhola Pershad v. Ram Lall 24 Cal. 34, lays down that a benamidar may sue and Yad Ram v. Umrao Singh 21 All. 380, lays down the same proposition. But I am quite sure that these decisions were never intended to suggest that when a real owner of the property had died, a benamidar under a bogus sale deed could transfer a valid title to a third person, aware of the bogus nature of the benamidar's sale deed with a view to the purchaser's suing a relative who had entered on the property when the original owner died.