TMI Blog1920 (12) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... gards six of the properties, as being benami. As regards the seventh, No. 429, it fell under the same conditions, and there is no doubt that in the opinion of the Judge she was as much a benamdar for her husband in respect of this as in respect of the other six; but it happened that it was not within his district or his jurisdiction and therefore he could pronounce nothing upon it. In respect of the other six. Jamaher Kumari appealed to the High Court and her appeal was dismissed. The decision in the local Court way given on the 20th July 1903 and the decision in the High Court on the 4th January 1904. On the 30th July 1904, the decree-holder endeavoured to execute his decree in the proper Court against the Mahal No. 429, when be was met by a claim put forward on behalf of the father of the present Appellant. It is convenient to call the father the purchaser. Certain proceedings thereupon took place, the upshot of which was that the decree-holder was not allowed to execute his decree summarily, and had to bring the action which is the subject of the present appeal. 2. The case on behalf of the purchaser was simply that on the 6th July 1904, at a time when the property was not un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that was all. 6. In this state of things, it would have been perfectly open to the advocate for the purchaser to demand that the action against his client should be dismissed for want of proof; but a good deal of evidence had been taken on behalf of the purchaser on commission, and other witnesses were forthcoming at the trial including the purchaser himself; and after this evidence had been called it was contended that upon the true inference to be drawn front their evidence, the case for the decree-holder could be made out. The Subordinate Judge thought otherwise, and decided the issue in question in favour of the purchaser and dismissed the suit against him with costs. The High Court reversed this decision and gave judgment for the decree-holder with coots. Hence the present appeal. 7. The case has been very fully argued before their Lordships on behalf of the decree-holder. His counsel have relied not only upon the reasons expressed in the judgment of the High Court, but upon other considerations which they put forward; and their Lordships have given close attention to them. 8. It may be taken that Chhatrapat was in desperate straits, and was the sort of man who mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Giridhari Lal was sent to enquire, and went to inspect the property, enquire about its income and realisations, and the amount of revenue payable to the Government, etc. It is suggested that he was the real author of the mischief, as he had originally resided under the protection of the purchaser in his house for a number of years, and was afterwards in the service of Chhatrapat. It may be that he was the first to suggest the transaction; though there is some reason for believing that another wealthy co-religionist, with whom Chhatrapat stayed when on a visit to Bombay on the occasion of a great Conference of his religious sect, may have been the go-between. Be that as it may, nothing was elicited from Giridhari to show that he had not made enquiries or to affect his evidence except that he had at one time been in the service of Chhatrapat and his father. 12. There was, however, one matter on which their Lordships have been strongly pressed by counsel. There was a mortgage over the whole seven villages considered as one unit, and the claim of the mortgagee for the whole could be enforced against any part. It was therefore a somewhat rash transaction to buy such a property; and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seems to have found no reason for disbelieving him; and the purchaser himself was examined on commission. And after all, to no one witness was the suggestion made that money did not pass. There was proof that it was given in the presence of the Registrar to Jamaher Kumari, the actual numbers of the notes being given, and no suggestion was made in cross-examination that the money went hack again. There was no tracing of the notes back into the hands of the purchaser or his agents. Nor was there anything to balance the sworn evidence and the documents except the fact that Chhatrapat was likely to adopt any devices he could, and that the purchaser, or those who acted for him, were some what remiss or easygoing in the enquiries which they made and the precautions which they took. 16. There are some elements of suspicion. If is for these reasons that their Lordships have entered more minutely into the details of the case than they otherwise might have done; but upon the whole the decree-holder did not discharge the burden of proof which was upon him and the suit was rightly dismissed by the Subordinate Judge. 17. In a not dissimilar case [Sreemanchunder Dey v. Gopaulchunder Chuck ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
