KISHAN RAM MARWARI Vs. GODAWARI DEVI

JUDGEMENT

(1.) This is a plaintiff's appeal from a decree of the learned Subordinate Judge of Dhanbad dismissing his claim for a declaration. The plaintiff in the year 1925 obtained a decree for about Rs. 10,000 against defendant 4 who was the manager of the Katras Encumbered Estate. On 3 December 1926, this claim was admitted by the manager at Rs. 9924. In the year 1927 one Bansidhar brought a suit against the plaintiff for Rs. 3800, and on 9 June 1927 this suit was compromised by the plaintiff agreeing to pay the said Bansidhar Rs. 3000 within a month. It is now the plaintiff's case that he took steps to prevent the attachment of the decree which he held against the Katras Encumbered Estate. According to the plaintiff, he executed a registered deed of assignment on 16 August 1927 of the decree for Rs. 9924 in favour of Nagarmall, husband of defendant 1. In this deed, it is said, that the consideration for the sale was Rs. 4000 but according to the plaintiff no money passed, and this transaction was a purely benami one, the purpose being to put this decree of Rs. 9924 out of the reach of Bansidhar who held a decree for Rs. 3000 against the plaintiff.

(2.) Later Nagarmall assigned the decree to his adopted son Saligram, defendant 3, and the present suit was brought for a declaration that these two deeds of assignment were inoperative and were benami transactions. The defence was that the assignment to Nagarmall was a genuine and valid assignment for good consideration and that Nagarmall had become the owner of the decree in every sense of the word. Accordingly, it was contended that Nagarmall could do what he liked with the decree and assign it to Saligram if he so desired. The learned Subordinate Judge came to the conclusion that the assignment to Nagarmall was a genuine and valid transaction and accordingly dismissed the plaintiff's claim in its entirety. It has been strenuously argued by Mr. R.S. Chatterji on behalf of the appellant that the decree of the lower Court cannot be sustained. The lower Court, in the first place, held that there was no real motive for this transaction. The Court has found that at the date of this assignment to Nagarmall the plaintiff had considerable house property and shop property which could have been attached by Bansidhar in execution of his decree for Rs. 3000. The plaintiff admits that he had this property, and that being so there appears to have been no purpose whatsoever in executing a benami assignment of this decree against the encumbered estate.

(3.) Decrees against encumbered estates are often very difficult to realize, and Bansidhar would be far more likely to execute his decree against the plaintiff's house or shop property than against this decree for Rs. 9000 odd. According to Mr. Ghatterji, however, the plaintiff executed the assignment in order to prevent Bansidhar attaching the decree held by the plaintiff. In other words, he has to admit that the assignment was made with a view to defrauding Bansidhar, one of the plaintiff's creditors. According to the plaintiff, Bansidhar eventually accepted Rs. 1000 in full satisfaction of his decree for Rs. 3000, and if that be so it would appear that the fraud was successful. The learned Subordinate Judge was not satisfied that Bansidhar had received anything; but in any event according to the plaintiff's own case, the fraud, if not wholly successful, had at least been partially successful. That being the case, the plaintiff cannot possibly ask this Court to declare this transaction in favour of Nagarmall to be a benami one. The plaintiff in putting forward such a case would be asking this Court to relieve him from the consequences of his own fraud which this Court would never do.