TMI Blog1957 (11) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... f 1948) on the averment inter alia that the attached properties belonged to her and were in her possession in her own right at all relevant times. That claim was allowed by the court and the attached properties were directed to be released from attachment upon a finding of possession and prima facie title in favour of the appellant, the Court refusing to go into the question, raised by the respondent Bank that the appellant was the benamdar of her husband, to whom the suit properties belonged, upon the view that the question of benami could not be gone into in the claim proceeding, the Bank's remedy, if any, lying in a suit under Order 21, Rule 63 of the Code of Civil Procedure. Thereupon, the present suit was filed by the respondent Bank. 4. In the suit, the appellant was made the principal defendant (No. 1) and the appellant's husband Syed Sakhawat Hossain, pro forma defendant (No. 2), and the prayer was inter alia for a declaration that the disputed properties were the latter's properties and as such liable to attachment for recovery of debts, due from him, the appellant having no title thereto or possession but being merely her husband's benamdar in respect t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ument that the Court's decision must rest not on suspicion and surmise but on legal evidence. He maintained, however, that the Court is entitled to base its decision on both actual and circumstantial evidence and it is free to take into consideration the circumstances of the case and view the evidence in the light and context of those circumstances and its inference, deduced from such examination of the materials before it cannot be rejected. Indeed, Mr. Gupta contended that, in these cases of benami, while the law of onus, as stated above, will have to be borne in mind and while the Court should not indulge in suspicion and surmise, it is entitled -- and that, indeed, is its duty -- to take into consideration the whole bundle of facts and circumstances, as proved or disclosed in the case, to form its proper conclusion and it will not do to examine merely the evidence, adduced by the party, pleading benami, or, for the matter of that by one or other of the parties only, and to say from that evidence that the onus has or has not been discharged and benami has or has not been proved. That will be deciding the case on a part of the evidence, disregarding the rest, and so it will n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, as they do not purport to lay down any principle, different from or not covered by our statement of the law, as made above and accepted by both parties. Indeed, there is no dispute and the parties do not differ on principles, relevant for purposes of our present enquiry, but the point that arises is how to apply them and what is the effect of their application or, in other words, what conclusion should follow in the present case in the (sic)ght of those principles. 10. Having stated the law, let us now apply it to the facts before us in the light of the evidence on record and the circumstances of this case. As usual in these cases, where the question is whether the wife is the real owner or the benamdar for her husband, possession of the property or custody of the title deed seldom gives any clue to the real position. There is also no clear evidence of motive in the present case for creation of the benami, but the absense of motive, it must be remembered, does not necessarily exclude benami. Naturally, then, source of the consideration money assumes paramount importance and the material enquiry seems to be as to who supplied the money for the acquisition of the disputed land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t No. 1 made the definite case that she spent the money from funds, obtained by her from her father and from the husband as prompt dower. It is, however, impossible to accept the first part of the story, namely, that ₹ 5000/- or any substantial cash amount was obtained by the defendant No. 1 from her father. The amount is said to have been paid by the father to defendant No. 1 when she was coming to her husband's house for the first time after her marriage. The payment is alleged to have been made to her when she was a girl of about 16 years without any intimation to the husband and we are asked to believe that it was kept secret from the husband until the Kobala (Ext. A) which was in 1932, that is, about 20 years later or until the construction of the building which was still later. The defendant No. 1's father, again, as Ext. G and D. W. No. 7's evidence show, was not in very affluent circumstances and he had to sell many properties for liquidating debts. Defendant No. 1 has also alleged receipt of various other sums from the father and from the brother who was examined as D. W. 7. The evidence, however, in support of the story is extremely unconvincing. Accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iticism is justified. Of the remarks pointed out, none appears to be basically wrong, although one or, two may not have been happily worded of properly expressed and may not have been put in pro-per sequence. We do not think that the learned Subordinate Judge really suffered from a wrong approach or led himself to be unduly influenced by suspicion and surmise. His judgment, on the whole is based on the legal evidence in the case, the sub-stance of which we have endeavoured to set out above, in the context of relevant circumstances. His inference from that evidence as we have shown above, is a proper inference, amply justified by the materials on record and quite within the legitimate scope and powers of a Court, and we have not the slightest justification for interfering with the same. 16. A minor point was raised by Dr. Sen Gupta that, in these proceedings, the learned Subordinates Judge was not justified in declaring the right of the plaintiff to attach before judgment the disputed 'Ka' schedule property. The argument may be technically correct, if it means, as apprehended by Dr. Sen Gupta, that, by this declaration, the learned Subordinate Judge was affirming the lega ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
