TMI Blog1973 (10) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... son-in-law, Abdul Latif (Defendent No. 3), husband of Mst. Bibi Hazra (Defendant No. 2). Abdulkarim (Defendant No. 1), in order to clear the mortgage dues and for meeting other necessities, agreed to sell the house to Plaintiff No. 1 for a consideration of ₹ 20,000/-. Pursuant to this agreement of sale, Plaintiff No. 1 paid a sum of ₹ 10,209-4-0, by installments to Defendant No. 1. Another sum of ₹ 2,990-12-0 was left with Plaintiff No. 2, for payment of the mortgage debts of Defendant No. 3, ₹ 6,800/-, the balance of the price, was paid in cash to the vendor at the time of the registration of the sale-deed on 25-5-1951. Thereafter Plaintiff No. 2 got this house mutuated in the Municipal records in her favour. Despite the sale, defendants Nos, 1 to 3, acting in collusion, continued to be illegal possession of the house. Defendant No. 1, while admitting the exception of the sale deed dated. 25-5-1951, pleaded that it was without consideration. He however, asserted that the house had been purchased by him, and that Mst. Hakimunnissa was only his benamidar. The suit was registered by Bibi Hazra, Defendant No. 2, on the ground that the house had been purchas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deed is a solemn document prepared and executed after considerable deliberation and the ,person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state ,of affairs is the real state of affairs. Though the question, whether a particular sale is Benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid tests, uniformally :applicable in all situations, can be laid down; yet in weighing the pro- babilities and for gathering the relevant indicia, the courts are usually guided by these circumstances : (1) the source from which 'the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami color; (4) the position of the parties and the relationship, if any between the claimant and the alleged benamidar; (5) the cus- tody of the title-deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale. The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless no. 1, viz. the source ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a petty shop of tobacco, tikia, hardly earning Re. 1/- or ₹ 2/- per day. Then there was the documentary evidence furnished by the sale-deed (C-1/11) dated 1-4-42, executed by Mst. Hakimunnissa whereby she sold a house to Chaudhary Kishan Chand. It was recited in this deed that in order to purchase the house in dispute she (Hakimunnissa) had to incur certain debts for payment of a part of toe consideration for the sale-deed (Exh.D/1). The sale in ques- tion was effected about 11 months earlier on May 10,1941. This recital being ante litem motam, was a valuable piece of evidence to. show that the consideration of the sale was paid by Mst. Hakimunnissa, the apparent purchaser of the house, from her own resources. Mr. Desai next contended that the recitals in the sale-deed (Ex.D/ 1) not only neutralise the effect of the recitals in the sale-deed (Ex.C(1)-II) but also show that the money for purchasing the house must have been paid by Abdul Karim from his own pocket. Learned Counsel invited our attention to two recitals in Exh.D/1 which are to the effect : 1. I, the executant negotiated with Abdul Karim the tenant aforesaid regarding the sale of the said house. The said ten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h motive, if any, did not say a word on this point. There was not even an oblique suggestion that Abdul Karim was heavily under debt and in order to avoid payment of such debts, he thought it fit to acquire the house in the name of his wife. No capital can be made out of the circumstance that the negotiations for the purchase of the house were earned out by Abdul Karim and a sum of ₹ 1700/- towards the part of the price was paid before the Sub-Registrar by him. It is in evidence that Hakimunnissa was a Pardanishin lady, and naturally therefore it was her husband who used to look after her affairs. Neither the actual delivery of ₹ 1700/- before the Sub-Registrar by Abdul Karim, nor the recitals made in Ex.D/1 could be accepted as evidence of Abdul Karim being the real purchaser. He was acting only as an agent of his Pardanishin wife. For the same reasons, no significance can be attached to the fact that the sale-deed remained in the custody of the husband. Learned Counsel next referred to the two mortgage deeds, Exhs. C-1 and C(1)-1, dated 6th January, 1948 and 26th July, 1948, respectively, executed by Abdul Karim in favour of Abdul Latif (Defendant No. 3). Emphas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the attached house in plot 216 was her exclusive property and her husband had no right or interest in it. Her application was dismissed by the Munsiff on 22-11-1943 with the finding that Mst. Hakimunnissa was only a benamidar of the judgment debtor, Abdul Karim. Her appeal against that order was disallowed by the Appellate Court on 21-2-1944 vide Ex. 10. Mr. Desai very fairly conceded that this order, dated 22-11- 1943, did not operate as res judicata because the Munsiff was not competent to decide the subsequent suit from which the present appeal has arisen; but he urged that this order had become final because no suit under Order 21, Rule 103 of the Code of Civil Procedure was filed by Mst. Hakimunnissa to establish her right, and, as such, this order, even if not conclusive, was a very efficacious and presumptive proof of the fact that Mst. Hakimunnissa was merely a benamidar in respect of the house in dispute. The contention is attractive but does not stand a close examination. It,is to be borne in mind that Mst. Hakimunnissa died only a few months after the dismissal of her appeal before the limitation for filling the suit under Order 21, Rule 103 had run out. Assuming thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
