BANS NARAIN Vs. MTCHANDRANI KUER

JUDGEMENT

(1.) These are two appeals against one and the same judgment of the learned Civil Judge of Cawnpore, dated 30 April 1940. Appeal No. 190 of 1940 has been filed by the plaintiff, while the other appeal No. 229 of 1940 has been filed by the defendant. It appears that the plaintiff Mt. Chandrani Kunwar brought a suit for a declaration that she was the owner in possession of the zemindari property, comprising 12 annas in mohal Bidhauna, tahsil and pargana Ghatanpur, District Cawnpore, and that the sale deed dated 3 February 1917 executed by Syed Mohammad Abdulla and others, in favour of her father Misri Lal, was fictitious and be-nami and was executed for her benefit. The allegations of the plaint was that she was married to Rameshwar Prasad alias Munna Lal as his third wife, while she was very young and only 14 years of age, and that her husband, in order to provide for herself and her children purchased the said property, with his money but as a litigation was going on in the family of her husband, her husband got the sale deed executed in the name of her father Misri Lal. The defendant Bans Narain who is the own brother of the plaintiff denied the allegations of the plaint, and asserted that the property in dispute was purchased by his father, with his own money and that he and his father had all along been in possession, e Certain legal pleas namely that the suit was barred by limitation, that the plaintiff was estopped from bringing the suit and that Section 42, Specific Relief Act, barred the suit were also raised. The learned Civil Judge found all the legal issues in favour of the plaintiff and on the question of fact, he came to the conclusion that the plaintiff was owner of half the property in dispute and gave a declaratory decree to the plaintiff in respect of one half holding that the sale deed in respect of only one half was fictitious and benami. Both the plaintiff and defendant being dissatisfied with this decree, have come in appeal. It is urged ; on behalf of the plaintiff that the entire suit ought to have been decreed while the contention of the defendant is that the entire suit was liable to be dismissed and ought to have been dismissed.

(2.) On hearing the learned Counsel for the parties it seems very clear that the findings of the learned Civil Judge are to a certain extent inconsistent and contradictory to each other. At p. 64 of the printed book the learned Civil Judge has remarked: I am decidedly of opinion that the sale deed was obtained by the plaintiff's husband benami in the name of her father Misri Lal. and then again at p. 68 it is stated : "The evidence as it is therefore proves that Mannu Lal paid the consideration and not Misri Lal." But in the latter part of the judgment the learned Civil Judge has modified his views and has come to the conclusion that the plaintiff was the owner of only half of the property in dispute.

(3.) The first question, that strikes itself to me, is whether in a suit for a declaration, that a certain transaction was benami, it was open to a party to contend or for a Court to hold that a part of it was genuine and the other part was benami. It is contended that it is always open to a Court to find out the truth between the two extreme cases as propounded by the parties. As an example it is cited that a plaintiff may sue to recover a sum of Rs. 5000 while the defendant might plead that nothing was due and it was open to the Court to hold that the sum due was something less than Rs. 5000. With all respect, I am of opinion that this does not hold good in a case where it has to be decided whether a transaction is benami or not. The only case on the point which I could discover is that of Appa Dhond Savant V/s. Babaji Krishnaji ( 22) 9 A.I.R. 1922 Bom. 107. In that case it was contended by the defendants that part of the transaction was benami. The following re-marks occur in the judgment delivered by McCleod J. which support my view: Benami transactions, it may safely be assumed, are generally effected in order to conceal some fraud, or in order to support some object of a discreditable nature. But though the Courts have in the past recognised that the ostensible owner in a benami transaction can be ordered to restore the property to its original owner, I for my part would certainly not be willing to extend that doctrine and to hold that a transaction can be partly genuine and partly unreal, unless there were very strong reasons for obliging the Court to come to such a conclusion. It is to be noted that in the case in appeal the point was not raised by the parties but was made out by the learned Judge himself.