TMI Blog1955 (2) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... athas 8 chhataks with the Burmah Shell Oil Storage and Distributing Company of India Limited on a monthly rental of ₹ 25. On the 4th September, 1945, he made a gift, as per registered deed, of all the properties which he had taken in lease from the District Board in favour of the plaintiff, his wife. The plaintiff's case is that she accepted the gift and came in possession of the gifted property, she realised rent from the Burmah Shell Oil Storage and Distributing Company from month to month, got her name mutated in the office of the District Board, paid rent to the said District Board and had also settled a portion of the land with one S.K. Thacker of Dhanbad on a monthly rental of ₹ 100. Vijoy Shankar Juthabhai Pandit had been assessed by the Income- tax Department with income-tax to the extent of ₹ 51,295-3-0 for the year 1947-48. He had paid a portion of this income-tax, and, before the could pay the balance, ₹ 39,572-13-0, he died on the 13th August, 1948. Thereafter, the Income-tax Officer sent a certificate, under section 46(2) of the Income-tax Act, to the Deputy Commissioner, Dhanbad, for realising this amount of ₹ 39,572-13-0 as land r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d was not given effect to. In these circumstances, the plaintiff has come up to this Court in appeal. The only point, therefore, which arises in this appeal is, whether the judgment of the Court below holding that the gift is a benami transaction can be sustained by this Court. Mr. Bahadur, appearing on behalf of the respondent, has challenged the findings of the Court below on three points, namely:- (1) that the Union of India was a necessary party, (2) that the suit was not maintainable for want of notice under section 80 of the Code of Civil Procedure, and (3) that the Court below was wrong in holding that the certificate proceeding was void and illegal. He has, however, supported the judgment of the Court below on the issue on the benami nature of the gift. I would like first to deal with the main point raised in the appeal. Before I consider the matter on merits, I would like to mention the facts admitted, proved or not challenged, before this Court. The plaintiff is the third wife of the deceased Vijoy Shankar Juthabhai Pandit. She was married in 1937, her husband died in 1948, the deceased was in affluent circumstances at the time of his death, and from the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s:- It is plain that in a suit under Order XXI, rule 63 (Code of Civil Procedure), as in all other suits, the onus lies on the plaintiff of proving the facts upon the proof of which only the relief sought by him can be granted. It follows therefore that where the plaintiff in such a suit is the creditor, it is for him to prove that the property sought to be seized by him in execution belongs to his judgment debtor and not to the person whose claim to the property has been upheld by the executing Court ; and if he is the claimant whose claim has been rejected by the executing Court, he has to show that the property belongs to him and not to the judgment debtor. A difficulty, however, arises when the plaintiff happens to be the ostensible owner of the property whose objection has been dismissed under Order XXI, rule 58. In such a case the question arises as to how far he is entitled to the benefit of the presumption that the apparent state of things is also the real state of things. Now, the view which has prevailed in Courts in India is that in such a case the onus is upon the plaintiff to show affirmatively that not only the ostensible, but the real title is in him. This view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he official reference number of the correspondence. These letters were put in evidence without objection, that is to say, the formal proof was dispensed with. One of the witnesses for the plaintiff, namely, PW. 2, also proved these letters which was not at all necessary because they were admitted into evidence without objection. It has been contended by Mr. Bahadur, as was contended in the Court below, that this witness had admitted that none of the documents which he proved had been signed in his presence, but he had said that he had known the writing of the persons whose signatures he had proved because he had always correspondence with them. In my opinion, a witness can be a quite competent witness to prove one's handwriting if he has been in correspondence with that person although the witness who proves the handwriting may not have actually witnessed the writing. The letters, therefore, in my opinion, were duly proved. It has, however, been contended, which contention had found favour with the Court below, that these letters were suspicious because nobody has been examined from the office of the Burmah Shell Oil Storage and Distributing Company and, in the absence of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... false and fictitious documents. It has been contended that the plaintiff did not examine herself, and, therefore, adverse inference should be drawn against her. I find from some of the petitions, which are in the paper book that the plaintiff was anxious to examine herself in the case. There is a petition dated 12th January, 1951, which says that the evidence of the plaintiff was absolutely necessary and as she was not at Dhanbad, some time may be given to her. The case was then adjourned. There is another petition dated the 13th February, 1951, which says that the plaintiff was at Rajkot, and a prayer for adjournment of the case for a month was made. The hearing of the case started on the 21st June, 1951, and it appears that for some reason or other the plaintiff could not come to Dhanbad from Rajkot. The Court below appears to doubt the fact that she was at Rajkot and according to the Court below she was at Dhanbad and she deliberately refrained from going to the witness box. I do not take the same view. The Court below says that from exhibit I, a certified copy of the petition filed by the plaintiff under section 21 of the Public Demands Recovery Act, it appears that she was at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever since as the done under the gift. It is contended by Mr. Bahadur that the Union of India should have been made a party to this suit because, he says, the Income-tax Officer was merely an agent of the Union of India for realising the income-tax dues from the deceased, Vijoy Shankar Juthabhai Pandit. Whatever the position of the Income-tax Officer may be, it is certain that in the column meant for the name and address of the certificate holder, the Income-tax Officer, Special Circle, Charge I or III, Patna, has been mentioned. The plaintiff, who had failed in the claim case and had filed the suit, was, therefore, not obliged to go beyond the records of the certificate proceeding and implied anybody else other than the person named in that proceeding. The Court below was, therefore, right in holding that the Union of India was not a necessary party. It is said that the suit is not maintainable because notice under section 80 of the Code of Civil Procedure has not been given as required by law. It is true that no notice has been given. It is also true that a notice under section 80 is imperative if a suit is instituted against the Union of India or against a public officer i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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