BISWESWAR RAY CHOUDHURI Vs. ABDUL DEWAN

JUDGEMENT

(1.) In this appeal by the plaintiff, the sole question which remains for consideration here is whether the Subordinate Judge of Paridpur, reversing the Munsif of Chikandi who had decreed the suit, was right in holding that the appellant had failed to prove that he was the beneficial owner of the suit property under a document of transfer which stands in the name of the landlord defendants 1-15 who are his agnates.

(2.) But before the appellant can even begin to discharge the more than usually heavy onus which he has taken on himself to prove the benami it was necessary for the Courts below to consider and decide whether the aforesaid document in fact achieved what it purports to achieve, namely a conveyance of the property from the original owners to the persons in whose favour it was executed, whether as benamdars or as actual beneficial owners under the document which has been marked Ex 1(a). The defence of the respondent here (I am treating defendant 24 as the hole contesting respondent at this stage), was that he was transferee of the suit property from the heirs of Sonaulla in whose name the jote originally stood. Defendants 1-15 are the landlords. The document Ex. 1 (a) was executed by two of the five daughters of Sonaulla in favour of 19 persons, who are now said to be the benamdars of the plaintiff. The defence further was that this document which was registered on 12-1-1932 was never acted upon - to use the phrase which appears in the judgments - that title remained with the executants who with other cosharers in 1938 transferred their entire interest to defendant 24 and others by one document and to defendant 24 Muchai Khan alone by another viz., Exs. B and N(1), registered in October 1938.

(3.) The first question which fell for decision, therefore, was whether the kabala Ex. 1(a) in fact transferred title to anyone or whether title continued to reside in the executants, in spite of of execution and registration. The landlord defendants 1-15 who appear as the claimants under this document have not entered contest in the present suit at any stage. Mr. Chakravarty contended in the first place that there was no meaning in the allegation that a duly executed and registered document was not acted upon and that as it was a matter between the parties to the document, or as the case now stands, between the executants and the plaintiff who now sets himself up as the real claimant under it, it is not for anyone else to challenge it. No authority was placed before me in support of the contention which in any case raises a question of fact not law. I see no reason why in the-circumstances disclosed here, defendant 24 anyhow having been impleaded by the plaintiff (leaving aside defendants 19 a daughter of Sonaulla and 22 husband of another deceased daughter who appear to have joined in the contest below), should not be allowed to set up at defence to such a suit as this where his interest, purporting to have been acquired by the kabalas Ex. B series, was in serious jeopardy.