Bhrigurashram Missir v. Surendra Nath Mitra — 1961 DIGILAW 124 (PAT)

Judgment H.Mahapatra, J. 1. This is an appeal by the defendants 2 and 2(a) arising out of a suit for declaration of title, recovery of possession and partition of the plaintiffs 4/5th share "in the properties given in Schedule 1 of the plaint. 2. One Ram Chandra Mitra had five sons, of whom plaintiffs are the four sons and Satya Das Mitra, defendant No. 4, is the other son. They are governed by the Dayabhag School of Hindu Law. Father Ram Chandra advanced Rs. 2,997/-on a mortgage bond (Exhibit 1) to Jagdambika Pd. Narain Singh on the 8th of February, 1923, on the security of about 19 bighas out of the suit properties and another 10 bighas and two milkiat properties. He instituted a mortgage suit (No. 34 of 1928) and obtained a decree on the 22nd of May, 1929, which he executed in Execution Case No. 54 of 1930, and brought the mortgaged properties to sale, which he purchased on the 4th of August, 1930. That sale Was confirmed on the 13th of September, 1930, and possession was taken through Court on the 15th of June, 1931. Subsequent to that, the landlord, Bettiah Raj Estate, filed a rent certificate against the recorded tenant Jagdambika Pd. Narain Singh for default of payment of rent for the suit properties including the 19 bighas which Ram Chandra had purchased in execution of his mortgage decree. In that rent certificate proceeding, the land in suit was brought to sale and purchased in the name of one Janki Singh on the 20th of June, 1934, Plaintiffs alleged that this purchase was really by the plaintiffs and defendant No. 4 in Janki Singhs name and they came in possession since then. On the 14th of August, 1939, the plaintiffs and defendant No. 4 got a nominal sale deed executed by Janki Singh in favour of defendant No. 6, Pulin Chandra Sarkar; but in spite of that, the plaintiffs continued their actual possession. It was their further case that their brother, defendant No. 4, Satya Das, was working as a treasurer in the Motihari Treasury in the district of Champaran, and while working in that capacity, he defalcated a large sum of money, for which he was convicted and sentenced to imprisonment. It was their further case that their brother, defendant No. 4, Satya Das, was working as a treasurer in the Motihari Treasury in the district of Champaran, and while working in that capacity, he defalcated a large sum of money, for which he was convicted and sentenced to imprisonment. For realisation of the misappropriated amount, a proceeding under the Public Demands Recovery Act was instituted against Satya Das, and the suit properties, along with some other items of properties, were attached. As there was a sale deed in the name of Pulin Chandra Sarkar, he filed a claim case in that certificate proceeding alleging that the properties belonged to him and couid not be attached as belonging to Satya Das. His objection was overruled and the properties were brought to sale and defendant No. 2 purchased the same in the name of defendant No. 5. Possession was taken of the same on the 16th of August, 1942, through Court. 3. Later on, defendant No. 2 leased Out those properties to defendant No. 3 who in collusion with the lessor cut away valuable fruit find other trees from the land. On that account the plaintiffs asked for a decree for Rs. 7,296/- by way of damages in the present suit along with past mesne profits of Rs. 4,920.00 and future mesne profits. 4. Detendant No. 6, Pulin Chandra Sarkar, instituted a title suit, after being unsuccessful in his claim case in the certificate proceedings, against Satya Das for declaration of his titte and recovery of possession of the suit properties. That was numbered as Title suit No, 14 of 1942 and was ultimately dismissed. A first appeal (No. 172 of 1946) was brought to this Court, but that was also dismissed on the 3rd of March, 1949. The present suit was instituted on the 27th February, 1952, for the reliefs stated above. 5. Plaintiffs case in brief was that the lands in suit did not exclusively belong to Satya Das and the attachment and sale of the whole of that, in execution of a certificate against him, was illegal and invalid, and the plaintiffs having 4/5th share in that property were entitled to have a partition of the same. The remaining one-fifth share belonging to Satya Das could only go to the auction purchaser, defendant No. 2, or his co-purchaser defendant No. 2a. 6. The remaining one-fifth share belonging to Satya Das could only go to the auction purchaser, defendant No. 2, or his co-purchaser defendant No. 2a. 6. The suit was resisted mainly by defendants 2 and 2a, Brigursharam Missir and Devabrat Shastri. They contended that the plaintiffs had no cause of action and their suit was not maintainable and was barred by limitation, estoppel and res judicata. As the plaintitrs did not prefer any claim case or objection in the certificate case, the suit was barred. The property in dispute belonged only and excuisively to Satya Das Mitra, defendant No. 4, and Janki Singh and Pulin Chandra Sarkar were the benamidars of Satya Das alone. Though the plaintiffs filed Title suit No. 18 of 1952 against the attachment of other properties in that certificate case, they did not claim the suit property in that suit, and, as such, a fresh suit in respect of the suit property was barred under Order 2, Rule 2 of the Code of Civil Procedure. The title of defendant No. 2 as auction purchaser, which was unsuccessfully challenged in the suit of Pulin Chandra Sarkar, defendant No. 6, cannot now be assailed, after the final judgment in that suit, in favour of the defendant No. 2. 7. Defendant 3 pleaded that he had taken settlement from defendants 2 and 2a on the 50th of July, 1946, and he subleased the same to defendant No. 3 and that they never cut any trees from the suit land. 8. On these pleadings the parties went to trial. The Additional Subordinate Judge, Motihari, decreed the plaintiffs suit on contest against the contesting defendants and ex parte against defendant No. 4. He directed that the plaintiffs would get costs from defendants 2 and 2a, the main contesting defendants. Plaintiffs title to 4/5th of the property in suit was declared and they were held entitled to get the same partitioned and to recover possession of the same from defendants 2 and 2a. Plaintiffs were also held entitled to damages and mesne profits past and future, which are to be determined in a separate proceeding under O. 20, Rule 12, Civil Procedure Code. In these terms, a preliminary decree was drawn up, against which, the present appeal, by defendants 2 and 2a, has been preferred. 9. Plaintiffs were also held entitled to damages and mesne profits past and future, which are to be determined in a separate proceeding under O. 20, Rule 12, Civil Procedure Code. In these terms, a preliminary decree was drawn up, against which, the present appeal, by defendants 2 and 2a, has been preferred. 9. It was urged on behalf of the appellants that defendant No. 2s purchase of the entire suit properties at the sale, held in the certificate case against defendant No. 4, Satya Das, the certificate debtor, under the Public Demands Recovery Act, conferred on him a good title. The property belonged to Satya Das, although, it stood in the name of Janki Singh and later, Pulin Chandra Sarkar. 10. (After discussing the evidence in the rest of this Para, and Para 10, His Lordship concluded:) On a consideration of all the circumstances and the evidence, there is no escape from the conclusion that Janki Singh was the benamdar of the plaintiffs and Satya Das in the purchase of the suit properties at the rent sale, and Satya Das was not the exclusive owner of the entire property, but he along with the plaintiffs, were the real purchasers. Defendant No. 2 thus purchased at the certificate sale only one-fifth share in the suit properties belonging to the certificate debtor Satya Das. 11. It was also urged for the appellants that the defendant No. 4 was all along in possession of the suit properties in his own right to the exclusion of the plaintiffs right, from the date of the purchase in execution of the mortgage decree, and the same condition continued after the purchase in Janki Singhs name at the rent certificate sale. (After considering the evidence, the Judgment proceeded:) The trial Court did not accept the testimony of any of these witnesses about the possession of Satya Das and 1 see no reason to differ from it. Even if Satya Das was in possession and was looking after the management of the property, that would not be to the exclusion of the plaintiffs. He, being the eldest member of the family, would be deemed to be in such possession on behalf of the family, unless there was any overt act on his part to indicate in an open manner that his possession was to the denial of any interest of the plaintiffs. He, being the eldest member of the family, would be deemed to be in such possession on behalf of the family, unless there was any overt act on his part to indicate in an open manner that his possession was to the denial of any interest of the plaintiffs. But the oral evidence, considered as a whole, does not substantiate either that or the defendants case that all through, Satya Das, the certificate debtor, was in possession in his own exclusive right, and, as such, defendant No. 2, by his purchase at the sale, obtained a full title for the entire suit lands. 12. Learned Counsel raised another contention. The sale deed which was executed in the name of defendant No. 6. Pulin Chandra Sarkar, by Janki Singh on the 14th August, 1939, was admitted in the plaint, as a benami transaction, in paragraph 4, and it was asserted that, in spite of that document, the plaintiffs temained in actual possession of the properties. In evidence, P. W. 11 (plaintiff No, 3) said that Pulin Chandra was the farzidar of the five brothers and the sale deed in his favour was executed with their consent The defendants* case was also that transaction was a nominal one, the common case being that Pulin Chandra Sarkar, defendant No. 6 was a benamidar. The claim case filed by him in the certificate proceeding, after attachment of the suit properties and on his failure in that case, the suit instituted by him for declaration of title and recovery of possession over the suit land, would be deemed to be an action by the real owner, and if the plaintiffs and the defendant No. 4 were the real owners, then all of them would be bound by the decision, in that suit and that would operate as a bar of res judicata against the real owners. In support of this contention, learned counsel relied upon the case in GopiNath Chobey V/s. Bhugwat Pershad, ILR 10 Cal 697. Plaintiffs in that case brought a suit for establishing their right to a ccrtain malikana money in respect of their sharein a tauzi. The previous owner of that share had executed two conveyances, one in favour of one-Rowshun Ali and another in favour of one Behari Lal. Plaintiffs in that case brought a suit for establishing their right to a ccrtain malikana money in respect of their sharein a tauzi. The previous owner of that share had executed two conveyances, one in favour of one-Rowshun Ali and another in favour of one Behari Lal. Rowshun Ali had sued Behari Lal for possession of 5 annas share and for reversal of the order of the Revenue Authorities settling the same with Behari Lal. The Court, on that occasion, found that Behari Lal had not purchased any interest in the suit properties, and that, Rowshun Ali had acquired a title under his conveyance. That suit was accordingly decided in favour of Rowshun Ali. Later on, On the occasion of another temporary settlement the question as to the right to receive malikana again came before the Collector, and he, relying upon the previous Civil Court decision, refused to recognise Behari Lals right to malikana and allowed Roshun Alis right to that share. The right and interest which Behari Lal had acquired under his conveyance were brought to sale in execution of a decree and the plaintiffs of the reported ease purchased the same. On the strength of that, the plaintiff presented an application for registration, of their names in respect of the share of the malikana. He was opposed by the defendant, Gopi Nath Chobey The dispute was referred to the Civil Court and the plaintiffs application was disallowed. Thereupon the suit was instituted by the plaintiff. The defendant, Gopi Nath Chobey, alleged in that suit that Rowshun Ali was his benamidar, and he relied upon the decision in the previous civil suit in favour of Rowshun. Ali against Behari Lal to operate as res judicata against the plaintiff, who had purchased only Behari Lals interest in auction sale. He also raised the plea of limitation. The trial court dismissed the plaintiffs suit but, on appeal, the District Judge reversed that, holding that there was no bar of res judicata. Against that, appeal was taken to the Calcutta High Court. The concurrent finding was that Rowshun Ali was the benamidar of the defendant; Gopi Nath, in the purchase of the disputed properly which was the subject-matter of the previous and present civil suit. Against that, appeal was taken to the Calcutta High Court. The concurrent finding was that Rowshun Ali was the benamidar of the defendant; Gopi Nath, in the purchase of the disputed properly which was the subject-matter of the previous and present civil suit. In that view, the High Ccurt held that, so long as the benami system way to be recognised in this country, the proper rule was that, in the absence of any evidence to tho contrary, it was to be presumed that the benamidar institutes the suit with the full authority of the beneficial owner, and if he does so, any decision come to in his presence would be as much binding upon the real owner as if the suit was brought by the real owner himself. On that basis the plaintiffs suit was dismissed. 13. To tho same effect, their Lordships of the Judicial Committee observed in the case of Gur Narayan V/s. Sheo Lal Singh, 46 Ind App 1: (AIR 1918 PC 140) in the following words: "The system of acquiring and holding property and even of carrying on business in names oilier than those of the real owners, usually called the benami system, is and has been a common practice in the country. There is nothing inherently wrong in it, and it accords, within its legitimate scope, with the ideas and habits of the people. The rule applicable to benami. transactions was stated with considerable distinctness in a judgment of this Board delivered by Sir George Farwell (Mt. Bilas Kunwar V/s. Desraj Ranjit Singh, 42 Ind App 202 : (AIR 1915 PC 96)). Referring to a benami dealing, their Lordships say: it is quite unobjectionable and has a Curious resemblance to the doctrine of our English Law that the trust of the legal estate results to the man who pays the purchase money, and this again follows the analogy of our common law that where a fcoffment is made without consideration the use results to the feoffor. . . . the benamidar has no beneficial interest in the property or business that stands in his name; he represents, in fact, the real owner, and so far as their relative legal position is concerned, he is a mere trustee for him. . . . the benamidar has no beneficial interest in the property or business that stands in his name; he represents, in fact, the real owner, and so far as their relative legal position is concerned, he is a mere trustee for him. Their Lordships find it difficult to understand why, in such circumstances, an action cannot be maintained in the name of the benamidar in respect of the property although the beneficial owner is no party to it. The bulk of judicial opinion in India is in favour of the proposition that in a proceeding by or against the benamidar, the person beneficially entitled is fully affected by the rules of res judicata. With this view their Lordships concur. It is open to the latter to apply to be joined in the action; but whether he is made a party or not, a proceeding by or against his representative in its ultimate result is fully binding on him." On this basis, it was argued that according to the case of the plaintiffs, Pulin Chandra Sarkar, defendant No. 6, being their benamidar, the finding in the previous civil suit between him and defendant No. 2, to the effect that he (defendant No. 6) had no interest in the suit properties, could operate, as res Judicata against the plaintiffs of the present case. This contention assumes that defendant No. 6 was the benamidar of the plaintiffs, and this assumption is based upon the plaintiffs statement in the plaint and in evidence, amounting to, according to the argument, an admission on their part. 14. The word Benami is a Persian compound word consisting of (i) Be which means "Without and (ii) Nam", which means name. It literally means without a name, that is, nameless or fictitious, and is used to denote a transaction which is really done by a person without using his own name (i. e., Benami), but in the name of another (Williams Glossary of Indian Terms). The simple and real meaning of Benami is that the purchaser desires to buy property but does not desire to buy in his own name and therefore buys it in the name of some one else. In every such Benami transaction, there are three persons concerned: the vendor, the real purchaser and the name lender. The simple and real meaning of Benami is that the purchaser desires to buy property but does not desire to buy in his own name and therefore buys it in the name of some one else. In every such Benami transaction, there are three persons concerned: the vendor, the real purchaser and the name lender. A suit by or against the Benamidar or the ostensible owner is maintainable, and the result of that is binding against the real owner. Sec. 41 of the Transter of Property Act lays down that a transfer by such a Benamidar is not voidable on the ground that the transferor was not authorised to make it. On the facts of the present case, when the purchase at the rent certificate sale was made by the plaintiffs in the name of Janki Singh, it was clearly a benami transaction, as the real purchasers-were the plaintiffs and the namelender was Janki Singh, tho third party being the certificate debtor. But when the sale deed was executed by Janki Singh in the name of Pulin Chandra Sarkar, though at the instance of the real owners, the transaction was not intended, by any of the parties, to be given effect to and that was a sham deed. This is the admitted case of both the sides. Defendant No. 6 is the son-in-law of defendant No. 4. In paragraph 4 of the plaint, it was clcarly stated that in spite of the execution and registration of that document, the plaintiffs, as before, remained in actual possession of the land, which, in other words, means that the sale deed was not given effect to and there was no intension to do so. In evidence, plaintiff No. 4 said: "Janki later on executed a sale deed in favour Of Pulin Chandra Sarkar. This was a sham and. showy deed. Pulin got no title by virtue of it-The lands remained in our possession. .... .Pulin Chandra was the Karzidar of we the five brothers". The defendants admitted this nature of the sale-deed but only differed from the plaintiffs about who were the real owners through Janki Singh. If a transaction is not intended to be given effect to, or if a document of title is executed only as a sham and showy deed, there is no real purchaser and far less a benami purchaser. The defendants admitted this nature of the sale-deed but only differed from the plaintiffs about who were the real owners through Janki Singh. If a transaction is not intended to be given effect to, or if a document of title is executed only as a sham and showy deed, there is no real purchaser and far less a benami purchaser. No doubt, the word benami" is sometimes loosely used to represent such a dealing, but that is not, in fact or in law, a benami transaction, and the principles of a benamidar representing the real Owner, are not applicable to such a case. There actually no title Passes under the deed of transfer. Where, in a dealing, title actually is transferred from one party to the other but the transferee remains behind the screen and allows another persons name to appear as the transferee, in whose favour ostensibly the title passes, the rules of representation of the real Owner by the ostensible owner, come into play. In that view, Pulin Chandra, Sarkar, defendant No. 6, on the admitted case of both the parties, cannot be said to be a benamidar of the plaintiffs, and, as such, the suit brought by him, for declaration of title and recovery of possession over the suit properties, on a previous occasion, would not offer the bar of res judicata against the plaintiffs in the present suit. 15. I would like to refer here to what their Lordships of the Supreme Court said in the case of Srce Meenakshi Mills Ltd. V/s. Commissioner of Income-tax, (S) AIR 1957 SC 49 : "In this connection, it is necessary to note that the word "benami" is used to denote two classes of transactions which differ from each other in their legal character and incidents. In one sense, it signifies a transaction which is real, as for example, when A sells properties to B but the sale deed mentions X as the purchaser. Here the sale itself is genuine, but the real purchaser is B,X being his benamidar. This is the class of transactions which is usually termed as benami. In one sense, it signifies a transaction which is real, as for example, when A sells properties to B but the sale deed mentions X as the purchaser. Here the sale itself is genuine, but the real purchaser is B,X being his benamidar. This is the class of transactions which is usually termed as benami. But the word benami is also occasionally used, perhaps not quite accurately, to refer to a sham transaction, as for example, when A purports to sell his property to B without intending that his title should cease or pass to B. The fundamental difference between these two classes of transactions is that whereas in the former there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none such, the transfer continuing to retain the title notwithstanding the execution of the transfer deed. It is only in the former class of cases that it would be necessary, when a dispute arises as to whether the person named in the deed is the real transferee or B, to enquire into the question as to who paid the consideration for the transfer X or B. But in the latter class of cases, when the question is whether the transfer is genuine or sham, the point for decision would be, not who paid the consideration [but whether any consideration was paid". 16. In the present case if the execution of the sale deed in the name of Pulin Chandra is taken to be, in the legal and real sense, as a benami transaction, it would mean a transaction by a benamidar in favour of another benamidar. In a case where the real purchaser takes the transfer in his own name but subsequently effects a transfer in the name of another person without intending to transfer any title to him and without any consideration, it may amount to benami transaction, inasmuch as the first transfer, in effect, comes to be made by the original owner in the name of the benamidar of the vendee; but the facts of the instant case are otherwise. I am, therefore, of the view that Pulin Chandra Sarkar, defendant No. 6, is not a benamidar of the plaintiffs, and the present suit is not barred by principles of res judicata. 17. I am, therefore, of the view that Pulin Chandra Sarkar, defendant No. 6, is not a benamidar of the plaintiffs, and the present suit is not barred by principles of res judicata. 17. Next, it was contended that the suit is hit by Article 11 of the Limitation Act, as the suit was not brought within one year from the date of the order passed in. Certificate case No. 240-M of 1937-38. That order was made on the 18th of December. 1941, on the objection made by Pulin Chandra Sarkar against the attachment of the suit properties. Plaintiffs were not parties to that proceding. That will not attract Article 11 against them. The present suit is one for recovery of possession and was instituted within 12 years from the dispossession of the plaintiffs in pursuance of the order passed in the certificate case. In order to apply the provisions of Article 11 of the Limitation Act, it is necessary that the claim made under Order 21, Rule 58 of the Code of Civil Procedure (corresponding to similar provision in the Public Demands Recovery Act) must be identical with the claim made in the suit, both in regard to the claimant and the nature and extent of the claim; (see Ramjee Ojha V/s. Chandradip Kahar, AIR 1959 Pat 449 .) 18. For all the reasons given above, this appeal cannot succeed and the same is dismissed with costs to respondents 1 to 4 (plaintiffs). The decree passed by the trial Court is affirmed. Tarkeshwar Nath, J. 19 I agree.