BENOY KRISHNA SADHUKHAN Vs. PANCHANAN SADHUKHAN

JUDGEMENT

(1.) The plaintiffs who were unsuccessful in a suit; for declaration of title and recovery of possession with mesne profits and for accounts in respect o? a karbar which was a business in oil have preferred this appeal. In the sixties of the last century we first hear of a family consisting of a man named Mohesh Chandra Sadhukhan, his mother Parbati and his wife Muktamani. The family were oilmen by caste and they earned their living by a caste-business, namely a business in oil. In 1864 a plot of land, 1 bigha 12 cottahs in area which then bore Holding No. 67 in a subdivision of Panchannagram in the District of 24-Parganas was acquired by Parbati by purchase and in 1867 she transferred it by way of gift to Muktamani. In 1873 Mohesh took mourashi mokarari settlement of a holding bearing No. 68 and lying adjacent to the west o? Holding No. 67 and he transferred this holding along with some other lands which he appears to have also acquired by then to Muktamani by a kobala in 1878. Mohesh died in 1892. In 1920 Muktamani made a gift of the lands of Holdings Nos. 67 and 68 and the structures which she in the meantime had erected on them to one Hari Charan Sadhukhan and his two sons. Hari Charan was a mamato cousin of Muktamani, and had been for a long series of years putting up with Mohesh and, as stated in the plaint had been appointed by Mohesh to supervise the business and conduct the shop in which it was carried on. And in 1889 Mohesh who had then apparently fallen into debts, had sold to Hari Charan the ghurs which then stood on Holding No. 67 as also the business itself together with all fittings, appliances etc. Muktamani died in 1927. Hari Charan also is dead and his two sons are the defendants in this suit.

(2.) The plaintiffs claim and have been found to be the heirs of Mohesh and also of Muktamani in respect of her stridhan properties. As heirs of Mohesh they alleged that Holding No. 67 belonged to Mohesh, the purchase in the name of Parbati and the gift in favour of Muktamani by her being both benami; and that the sale by Mohesh to Muktamani of Holding No. 68 was also an unreal transaction. On that footing they claimed title as reversionary heirs of Mohesh on Muktamani's death to the two holdings, which are now numbered 40 and 44 and comprise an area of 3 bighas 5 cottahs, together with the pucca structure thereon. The entire property goes by the description of premises Nos. 6-7 Gariahat Road, Ballygunge. In the alternative and as heirs of Muktamani, they impugn the validity of the gift made by her in favour of the defendant and their father Haricharan and claim title to the property as such heirs., The karbar ceased to exist some long time ago, and the claim to it has been given up by the plaintiffs, as appellants in this appeal, and so need not be considered. The defence was that all the transactions referred to above were real and that the defendants have acquired a title which is indefeasible. The usual difficulties which a Court feels in dealing with the question of banami are present in the case. Added to those difficulties the danger of an unconscious leaning on the part of the Court to regard as benami a transaction in the name of a woman when her resources are not apparent, though as a matter of law there is no such presumption. On the top of all this is the fact that the transactions that have to be judged are such in respect of which by reason of the time that has elapsed since then, no direct evidence is available and such little of it as has been produced is obviously untrustworthy.

(3.) The safest course in cases of this kind is to keep in view the principles of onus, such as have to be applied from point to point. (After referring to the several documents executed before the gift in question, the judgment proceeded.) We now come to the deed of gift Ex. 6 which Muktamani executed in favour of Haricharan and his two sons, the two defendants. The document sets out the relations between the parties, such as they had been ever since, since the death of Mohesh. Its recitals make it perfectly clear, and there is not a particle of evidence to the contrary that she had become a part of Hari Charan's family. It was Hari Charan and her sons who were looking after her, catering to her needs and ministering to her comforts. Prompted by affection and in recognition of and as a reward for their services, she gave them by this document this property which was only one item out of several properties that she had. (Compare the properties described in Ex. 5). The donees were the only people who had ever cared for her since she had become a helpless widow, though she had properties of her own, and it was only natural that having grown old she should be anxious to do them a good turn. The validity of this transaction has been severely challenged on behalf of the appellants, and a large number of judicial decisions have been cited in which the legal position as regards transactions of this nature has been discussed. The principles bearing on the question are firmly established.