NIL KANTA GHOSAL Vs. RAM CHAND ROY

JUDGEMENT

(1.) This is an appeal by one Nilkanta Ghosal who sought to execute a decree against the respondents which was obtained by his deceased wife Kanchan Barani Debi. The lady brought the suit against the respondents in which the decree was obtained, and it appears that the respondents took the plea that the lady was the benamidar of the present appellant. In that suit the appellant evidently for the purpose of preventing the suit being dismissed on the ground of its being brought by a benamidar (as the law then understood was that a benamidar could not sue for recovery of possession of landed property) gave evidence that the lady was the real owner. Kanchan Barani died after having left a will and in her will she stated that the property in question was her husband's property and as she had no interest in it her heirs would not succeed to it. After her death her husband as executor of the will of Kanchan Barani took out probate. He applied for execution of the decree on the allegation that he was the real owner of the property and Kanchan Barani his late wife, was his only benamidar. The Subordinate Judge was doubtful whether a true owner could execute a decree which was obtained by another person as benamidar. I do not see that there is any difficulty in holding that the true owner can execute such a decree. If one really considers what a benami transaction is and what the position of the benamidar is there should be no difficulty. It is well settled that the benamidar is a mere name, and as it has been called, a mere mask. Behind the name of the fictitious owner there is the real owner and also behind the mask is the Derson who is the real owner of the property. That being so I do not see that there is anything which prevents the person behind the mask to take off the mask and to appear in proper person before the Court. The principle is supported by the case of Abdul Kureem V/s. Chukkhun [1880] 5 C.L.R. 253 decided in 1879. This case was no doubt dissented from, as pointed by the learned advocate for the respondents, in Palaniappa Ghettiar V/s. Subramania Chettiar A.I.R. 1925 Mad. 701. But with great respect to the learned Judges the reasons stated by them do not commend themselves to me. I prefer to follow the case of our own Court. There is no reason therefore why a true owner cannot execute a decree obtained in the name of his benamidar.

(2.) The learned advocate for the respondents contends that the question whether the appellant is the true owner or not cannot be decided under Section 47, Civil P.C., by the executing Court. His argument might have required consideration if there was dispute between the person who was alleged to be the benamidar and the person who alleges himself to be the true owner. But when the judgment-debtor raises the question that the person who seeks to execute the decree was not the true owner, I do not see why that question cannot be decided under Section 47, Civil P.C.,

(3.) It is next argued on behalf of the respondents that the Subordinate Judge was right in his view of the fact that the lady was the real owner of the property for which she obtained the decree. The Subordinate Judge was of opinion that the lady made the statement in her will under some misapprehension. This is an assumption which the Subordinate Judge was not entitled to make without any evidence, It is quite clear that the appellant stated in the suit itself that the lady was the real owner in order to avoid the suit being dismissed on that ground. The money for acquiring the property came undisputedly from his fund and there is no reason why he should not be considered to be the true owner. The appellant therefore is entitled to execute the decree in his right. He was also entitled to execute the decree as executor of the will of his wife. The Subordinate Judge held that he could do so. But there is no reason why his right to execute the decree should be restricted by stating that he should report to the Court which granted the probate or to the Collector and pay additional Court-fee. It is not the duty of the Subordinate Judge to collect probate duty with regard, to the will of any person. It is the duty of the probate Court and the revenue authority under the Succession Act. The Subordinate Judge is therefore wrong in limiting the right of the appellant to execute the decree as executor under the will as he has done.