Appellate Division Cases
(Civil)
PARTIES
Mosharraf Hossain Chowdhury and others…………………… Appellants
-VS-
Md. Jahurul Islam Chwdhury and others……………………… Respondents.
JUDGES
Md. Ruhul Amin J
Md. Tafazzul IslamJ
Date of Judgment
30th April 2006
The Code of Criminal Procedure, Section 144, 145
The Transfer of Property Act, Section 53, 42
The source of consideration relating to transaction as evidenced by Est.l is of doubtful nature since evidence relied upon by the lower appellate Court about the payment of consideration as regard the transaction made by Ext.l was of the person i.e. deed writer, about the fact which took place more than 22 years ago and in the usual and normal course of the profession in which the said person was engaged he was not supposed to be aware of the transaction took place so long past ago (9)
The question of possession of the land in suit can no way be made basis in making decision regarding the nature and character of deed, Ext.l, i.e. whether the same is a sale deed or benami deed as because the undenied position is that prior to the execution of Ext.l, Tofazzal Hossain was fostered by Izzatulla Chowdhury and after marriage in the year 1346 B.S.Tofazzal Hossain till his death in 1353 B.S. with his wife stayed with Izzatulla Chowdhury and after Tofazzal’s death, his wife stayed with Izzatulla Chowdhury upto kartick, 1366 B.S. In that state of the matter we are of the view the evidence of p.ws. 3-5 as to cultivating the land as bargader and delivering produce of the land to Tofazzal Hossain or to his wife or to his son can not be the basis for coming to decision as to possession of land of Ext.l by Tofazzal Hossain or his heirs because of the fact that after the death of Tofazzal Hossain his wife and children stayed with Izzatulla Chowdhury upto kartick, 1366 B.S. and three months thereafter Izzatulla Chowdhury died in the month of magh, 1366 B.S (13) A benami document emphasized the subsequent conduct of the maker of the document i.e. Izzatulla Chowdhury as demonstrated by Ext.A. and in support of the aforesaid contention, i.e. subsequent conduct of the maker of the document which is being claimed benami document is material in determining the nature and character of the said document Musammat nurjahan Begum vs Mahmudur Rahman Mallick reported in 1981 BLD (AD) 506 (same case has also been reported in 34 DLR (AD), 61). “but their subsequent conduct including, their dealings and the enjoyment of the property become relevant factors for consideration”. In the aforesaid case it has also been observed “.Source of consideration money though an important criteria in a benami transaction, but in the absence of an unambiguous ownership consideration of other relevant circumstances become important in a case where ownership is disputed. The disputed question of benami cannot be determined only on the consideration of source of consideration money court to fall back upon the surrounding circumstances of the transaction (14)
Question of benami in respect of a transaction matters or factors generally taken into consideration are source of the purchase money, custody of the deed, possession of the property, motive for benami transaction, subsequent conduct of the person who said to have made the benami transaction and the intention of the person as regard the transfer claimed to be benami and subsequent dealing with the property by the person who is claiming transaction as benami (15)
ADVOCATES
For the Appellants Mahmudul Islam, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-record. From Respondent Nos.1-13 Fazlul Karim, Senior Advocate, Instructed by Nawab Ali, Advocate-on-record .Respondent Nos. 14-41 …. Not represented
JUDGMENT
1. Md. Ruhul Amin J : The appeal, by leave, at the instance of the defendants is against the judgment dated August 10, 1997 of a Single Bench of the High Court Division in Second Appeal No. 162 of 1975 dismissing the same upon affirming the judgment and decree dated April 20, 1974 of the Court of Additional District Judge, Rangpur in other Appeal No. 175 of 1970 allowing the same upon setting aside the judgment and decree dated June 23, 1970 of the Court of Subordinate Judge (now Joint District Judge) Rangpur in Other Suit No. 45 of 1968 so far thesame relates to the land described in schedule ‘Kha’ and ‘Ga1 of the plaint. The aforementioned suit was filed seeking declaration of title in respect of the land of schedule ‘Ka’ of Mouza Sonatala and as regard the land of schedule ‘Kha’ and ‘Ga’ of Mouza Sandalpur.
2. The trial Court decreed the suit in respect of the land of ‘Ka’ schedule and dismissed the suit as regard the claim of the plaintiffs in respect of the land of ‘Kha’ and ‘Ga’ schedule. The plaintiffs took appeal as against the judgment and decree of the trial Court so far the same related to the land of schedule ‘Kha’ and ‘Ga’. The appellate Court allowed the appeal and thereby decreed plaintiffs’ suit and consequent thereupon the plaintiffs’ suit stood decreed in respect of the land of all the 3 schedules. As against the judgment and decree of the lower appellate Court the appellants herein took second appeal before the High Court Division but without any success.
3. The suit was filed stating, inter alia, that land of ‘Ka’ schedule belonged to Tasaruddin
who died leaving son by name Tofazzal Hossain, a daughter by name Amena Khatun and a widow Jamila, that after death of Tasaruddin the land of ‘Ka’ schedule was put to rent sale in execution of rent decree and the land of ‘Ka’ schedule was purchased by Khatemon, wife of Tofazzal on May 14, 1946 and since the purchase Khatemon, plaintiff
No. 2 is possessing the land of ‘Ka’ schedule on payment of rent, that land of ‘Kha’ and ‘Ga’ schedule of mouza Sandalpur belonged to Izzatullah Chowdhury who had no issue and said Izzatullah Chowdhury brought up his relation’s son Tofazzal as his foster son and Chowdhury got Tofazzal married with Khatemon in Baishakh, 1346 B.S., that Izzatullah Chowdhury sold the land of ‘Kha’ and ‘Ga’ schedule to Tofazzal by the registered kabala dated 25th Falgoon, 1345 B.S. corresponding to March 9, 1939, that Tofazzal and his wife were living in the house of Izzatullah Chowdhury, that since transfer Tofazzal Hossain had been in possession of the land of schedule ‘Kha’ and ‘Ga’ till his death in 1353 B.S. and after his death khatemon used to possess the land of ‘Kha’ and ‘Ga’ schedule through bargaders, that after the death of Tofazzal his wife Khatemon was living in the house of Izzatullah Chowdhury as his daughter-inlaw, that Izzatullah Chowdhury died in Magh, 1366 B.S., that a year before the death of Izzatullah Chowdhury, plaintiff No.l i.e. Khatemon was driven out from the house of Izzatullah Chowdhury by the defendant No.4 claiming himself to be the Ammoktar of Izzatullah Chowdhury, that having been driven out plaintiff No.2 took shelter in the house of her father and started a criminal case against the defendant No.4 and some others and they were convicted, but were acquitted by the appellate Court and at that stage trouble arose between the parties over the possession of the land of schedule ‘Ka’ ‘Kha’, and ‘Ga’, that at the instance of plaintiff No.2 a proceeding under section 144 of the Code of Criminal Procedure was started but lateron same was converted into a proceeding under section 145 of the Code of Criminal Procedure and the properties of the aforementioned three schedules were attached and management thereof was given to the receiver appointed by the Court. In the aforesaid circumstance plaintiffs who are the heirs of Tofazzal filed the suit seeking relief as stated hereinbefore.
4. The suit was contested by the defendant Nos. 4, 11,12 and 13 by filing joint written statement stating, inter alia, that Izzatullah Chowdhury purchased the land of ‘Ka’ schedule in a rent sale in the benami of plaintiff No.2, wife of Tofazzal Hossain (since the real owner of the property, described in schedule ‘Kha and ‘Ga’ and he created a benami
deed in respect of the land of said 2 schedules in the name of his foster son Tofazzal Hossain in fear of Marwari creditors, that the sale in favour of Tofazzal Hossain in respect of the land of ‘Kha’ and ‘Ga’ schedule was never acted upon, nor it was treated as a deed of transfer by any of the parties to the deed, that Izzatullah Chowdhury during his life time was in possession of all the disputed property through bargaders, that plaintiff No.2 while staying in the house of Izzatullah Chowdhury as widow of his foster son, Tofazzal Hossain, fraudulently obtained possession of some original documents including the deed dated 25 Falgoon, 1345 B.S. and transferred those documents to her father’s house, that Izzatullah Chowdhury having had come to know of the said fact drove away Khatemon from his house about a year before his death.
5. The trial Court on consideration of the materials on record relating to ‘Ka’ schedule land i.e. plaintiffs’ case of purchasing the land of said schedule by plaintiff No.2 and the case of the contesting defendants as to purchasing the ‘Ka’ schedule by Izzatullah Chowdhury in the benami of plaintiff No.2 held that plaintiff No.2 is the real owner of the land in ‘Ka’ schedule. The trial Court while considering the case of the plaintiffs and the defendants as regard the land of ‘Kha’ and ‘Ga’ schedule observed that question of possession of the property will not be of very much help to ascertain the real title of the land of ‘Kha’ and ‘Ga’ schedule. In the background of the admitted circumstances that Tofazzal Hossain till his death in 1353 B.S. with his wife Khatemon lived in the house of Izzatullah Chowdhury and after death of Tofazzal his wife Khatemon lived in the house of Izzatullah Chowdhury with children and as such ‘it is very difficult to distinguish the possession of Khateman from that of Izzatulla Chowdhury’, that question of inadequate consideration will not be a sufficient ground for taking the view that the transction was a benami transfer since the transfer in question by Ext. 1 was made by a foster father in favour of his foster son, that passing of consideration as deposed by the scribe of Ext. 1 in the proceeding under section 145 Cr.P.C. being of a professional deed writer in the absence of other independent witness can not be relied upon safely and as such the matter of passing of consideration “does not help us much in determining the real dispute as to title”, that the question of custody of the original document with plaintiff No.2 “does not help me very much in determining the real title” since from the evidence on record it is seen that P.W.2’s position in the house of Izzatulla Chowdhury “was that of a mistress” so long she was there and in that state of the matter it is quite probable that she took Ext. 1 in her custody and for which trouble started between her and Izzatulla Chowdhury and finally she was driven out with her children from the house of Izzatulla Chowdhury, that the motive for making benami transcation by Ext. 1 could not be established since Izzatulla Chowdhury “had no substantial debt to justify a Benami transaction for fear of any Marwari creditor”, that in the background of dealing with the property of Ext. 1 i.e. property of khatian Nos. 28 and 47, by Izzatulla Chowdhury by the Ext. A dated 13.1.1944 and dealing with the property that Tofazzal’s sister Amena Khatun got from Izzatulla Chowdhury by Ext. A and dealing with the said property as reflected by Ext. A(l) and Ext.A (2) clearly indicates that Izzatulla Chowdhury “did never intend to make any bonafide transfer by the earlier kabala Ext.l in favour of his foster son Tofazzal Hossain”, that the subsequent transfers by the kabalas Exts. A(l) and A(2) are bonafide transfers, that Izzatulla Chowdhury transferred the land of khatian Nos. 28 and 47 by Ext. A to Tofazzal’s sister Amena to his knowledge and that transfer made by Izzatulla Chowdhury to Tofazzal’s sister Amena was a bonafide transfer, that from the rent decree
Ext.3(b) it can not be said that the said rent suit was in respect of the land of khatian No.31, that there is gulf of difference between the rent decree (Ext.3(b) ) and the transfer
made by the kabala Ext.A, that the Ext.A reveals the conduct of Izzatulla Chowdhury and Tofazzal Hossain who are parties to the kabala, Ext.l but the Ext.3 reveals the conduct of the heirs of Tofazzal Hossain after his death and that it is also not known what was the nature of the ex-parte rent decree, that discrepancies in the body of the kabala and the schedule thereof (Ext.l) sufficiently indicates that Izzatulla Chowdhury “made no bonafide transfer by the kabala ext.l”, since a vendor always takes reasonable care as regard the land he transferred when the same is a real one, that Ext.B series – dakhilas as regard the land of sandalpur. the lands in dispute are in the name of Izzatulla Chowdhury and the same are “more dependable than the dakhilas produced by the plaintiffs in their names”, that in the facts and circumstances of the case it can reasonably be held that Izzatulla Chowdhury never intended to make “any bonafide and real transfer by the kabala Ext.l in favour of his foster son Tofazzal Hossain”. On the aforesaid findings and decisions the trial court held that “neither Tofazzal nor the plaintiffs acquired any bonafide title in the disputed lands of kha and Ga schedule”. As stated hereinbefore the trial court decreed the suit in respect of the land of ‘Ka’ schedule but dismissed the suit in respect of the land of ‘Kha’ and ‘Ga’ schedule.
6. The plaintiffs as against the part of the judgment and decree of the trial Court i.e. dismissing the plaintiffs’ suit in respect of the land of ‘Kha’ and ‘Ga’ schedule went on apeal. From the defendants’ side there was no appeal us against the judgment and decree of the trial Court decreeing the suit in respect of the land of ‘Ka’ schedule. The appellate Court set aside the judgment and decree of the trial Court so far the same related to the land of ‘Kha’ and ‘Ga’ schedule on the findings that in the background of the materials on record, particulaly evidence as to payment of consideration by Tofazzal Hossain in connection with Ext.l, the trial Court should have held that Ext.l is a valid document and the same was duly acted upon, that the trial Court upon taking into consideration transaction made by Ext.A was in error in holding that Ext.l was not a bonafide deed of transfer and that it was not acted upon, that taking into consideration the fact that Ext.l was registered on 25th Falgoon, 1345 B.S. and Tofazzal Hossain married P.W.2 in Baishakh, 1346 B.S. the contention of the plaintiffs that Ext.l was made for making provision for the future fo Tofazzal can not be lightly brushed aside, since in the background of the admitted position that Tofazzal Hossain and his wife, plaintiff No.2 stayed in the house if Izzatulla Chowdhury, that plaintiffs having had established by oral and documentary evidence that Tofazzal Hossain and after his death his heirs possessed the land of Ext. 1 and the said fact clearly established the fact that by Ext.l Tofazzal acquired title in the land of schedule ‘Kha’ and ‘Ga’ that Ext.3(a), certified copy of the rent decree, also shows that Tofazzal Hossain exercised his right and title in respect of the land of khatian No.28 i.e. land of the ‘Kha’ schedule, that evidence of D.W.2 proves the possession of the land in suit by the plaintiffs through bargader, that plaintiffs have succeeded in establishing that Tofazzal Hossain exclusively possessed the land of and ‘Ga’ schedule and the fact of possession of the land goes long way in determining the real nature of Ext.l, that because of the relationship between the vendor and vendee low price, as in the case of Ext. 1, can not be the ground for holding that the transaction was a benami one, that payment of consideration money as regard the transaction made by the Ext.l has been proved by Ext.8, the deposition of the scribe, that the trial Court was not well founded to discard the evidence of the scribe on the view that evidence of the scribe of Ext.l was of a professional deed writer since “deed writer under all circumstances do not depose falsely”, that contention of the defendants that plaintiff No.2 for illegal gain took away the Ext.l is nothing but a device “to nullify the effect of evidentiary value regarding custody of original document”, that from the evidence of D.Ws. it is seen that Izzatulla Chowdhury had no substantial debt upon borrowing from Marwari and as such the contention of the defendants that to put away the property of Ext.l from the clutch of the creditor Izzatulla Chowdhury made Ext.l is of no merit, that taking into consideration the fact of payment of consideration money by Tofazzal for the transaction evidenced by Ext. 1 and possession of the land of Ext.l by Tofazzal Hossain and after him his heirs and payment of rent to the Zamindar as well as to the Government by Tofazzal Hossain and his heirs and failure on the part of the defendants to prove that Ext. 1 is a benami document the only conclusion is that “kabala (Ext.l) is a bonafide, valid and active document. In fact it operated to pass title in favour of Tofazzal”, that presence of Tofazzal Hossain in the office of sub-Registrar on the date when by Ext.A, Izzatulla Chowdhury transfered 2.40 /o acres of land of Ext.l to Tofazzal’s sister, Amena and byExt.l (a) Amena transferred land to her brother Tofazzal does not saddle Tofazzal Hossain with the knowledge of the transfer of land of Ext.l by Izzatulla Chowdhury by the Ext.A to Amena, sister of Tofazzal Hossain, that the transaction made by Izzatulla Chowdhury by Ext.A and the transaction made by Amena by Ext.A(l) did not affect the validity of Ext.l since the same has been found “a valid and bonafide document and title of the disputed land passed by it”, that Ext.A executed by Izzatulla Chowdhury as regard the land of khatian Nos.28 and 47 i.e. land of ‘Kha’ and ‘Ga’ sehedule “can not nullify the effect of Ext.l”. that there is nothing on the record to show which prompted Izzatulla Chowdhury to make sham transaction by Ext.l, that when motive for making benami transaction by Ext.l could not be proved by the defendants and it having been established that Izzatulla Chowdhury for the future provision ofTofazzal Hossain made Ext.l, as such “it can be reasonably presumed that transaction witnessed by Ext.l is a bonafide and real one”, that the conclusion so made gets supported from the subsequent trnsfer made by Izzatulla Chowdhury to plainfiff No.2’s son, plaintiff No.4 by Ext.4, that in the context of the fact on record it can not be said that Ext.l was not acted upon, that in the background of the consideration of the facts and the circumstances conclusion that only be derived is that Ext.l “is a valid and active document and Tofazzal acquired valid title to the land of schedule kha and Ga by virtue of that deed” and as such plaintiffs have right, title and possession in the land of ‘kha’ and ‘Ga’ schedule.
7. As against the judgment of the appellate Court decreeing the plaintiffs’ suit in respect of the land of ‘Kha’ and ‘Ga’ schedule defendants moved the High Court Division in appeal, Second Appeal No.162 of 1975. The High Court Division dismissed the appeal primarily taking into consideration the custody of the Ext.l and production thereof by the plaintiffs and possession of the land of the ‘Kha’ and ‘Ga’ schedule by the plaintiffs. The High Court Division while dismissing the appeal held that defendants failed to prove that the Ext.l was a benami deed, that the transferees defendant Nos.12 and 13 from Amena can not get benefit of the provision of section 41 of the Transfer of property Act, since they failed to establish the ingredients of the said provision of law, that defendants failed to prove motive of bringing into existence Ext.l by Izzatulla Chowdhury as they failed to establish that Izzatulla Chowdhury had dedt to Marwari and the same having had remained outstanding and for that to save his property from the clutch of the Marwari Izzatulla Chowdhury created the alleged benami deed Ext.l in favour of his foster so Tofazzal Hossain, that the fact of taransfer of homestead by Izzatulla Chowdhury to plaintiff No.l son of late Tofazzal Hossain and transfer of some other land by Izzatulla Chowdhury to Tofazzal ectablished the fact that by Ext.l Izzatulla Chowdhury transferred
the land of ‘Kha’ and ‘Ga’ schedule, that payment of rent by the plaintiffs to the Zamindar and the Government established the fact tat they on the basis of the Ext.l and other kabalas pon assertion of their right possessed the land in question, that preparation of the R.S. record in the name of the plaintiffs and payment of rent by the plaintiffs established the fact of possession of the land of ‘Kha’ and ‘Ga’ schedule by the plaintiffs, that defendants could not prove that Ext.A was executed and registered by Izzatulla Chowdhury and as such by Ext.A ownership of Tofazzal Hossain in the land of ‘Kha’ and ‘Ga’ schedule was not affected, that question of benami is essential ly a question of fact and that the lower appellate Court as the last Court of fact on consideration of the evidence on record and upon cogent and legal reasoning has made the decision that the Ext.l is not a benami deed.
8. Leave was obtained for consideration of the contentions that the subsequent conduct of the , parties to the document Ext.l being material in deciding the question of benami the lower appellate Court was in error in leaving the subsequent conduct of the parties to the said Document out of consideration upon a wrong view that Ext.l being a valid document the subsequent documents being Ext.A series and Ext.B serie s in derogation of the right created by Ext.l can not nullify the effect of Ext. 1 and the High Court Division was wrong in not taking into consideration the error of law committed by the lower appellate Court.
9. The learned Counsel has submitted that High Court Division did not apply its mind to
the point raised in the Second Appeal i.e. the lower appellate Court reversed the finding of the trial Court without adverting to the reasons assigned for said finding and the lower appellate Court was in error in not considering the Ext.A, the document by which Izzatulla Chowdhury transferred land of Ext.l to Amena, the sister of Tofazzal Hossain, Ext.A(l) kabala by which amena transferred her land to defendant No. 12 and Ext.A(2) kabala by which Amena transferred land to defendant No. 13 and the rent receipts Ext.B series showing payment of rent by the transferees from Amena and the evidence of 4 D.Ws.l, 3 and 4 relating to dealing with the property of ‘Kha’ ‘ and ‘Ga1 schedule by Izzatulla Chowdhury and Tofazzal Hossain subsequent to execution of Ext.l and the lower appellate Court was in error in leaving out of consideration the aforesaid evidence
led from the side of the defendants on the erroneous view that Ext.l being a valid deed and bonafide document the effect thereof was ‘ not be affected by Ext.A and the subsequent dealing with the property in respect whereof benami transaction was contended from the side of the defendants being an important test in determining the question of benami, the lower appellate Court was in error in holding Ext. 1 as a real and not a benami deed without taking into consideration the evidence regarding the dealing with the property in question by Izzatulla Chowdhury and Tofazzal Hossain ubsequent to the execution of Ext.l. It has -4 also been submitted by the learned Counsel for the appellants that Exts.A, A(l) and A(2) are inconsistent with the plaintiffs’ case of denial of benami since those documents show that Izzatulla Chowdhury did not intend to transfer the property of the ‘Kha’ and ‘Ga’ schedule by Ext. 1 to Tofazzal Hossain and the said important aspect of the matter was skipped by the High Court Division as well as by the lower appellate Court on a view that Ext.l is a valid and bonafide document, that the High Court Division as well as the lower appellate Court did not consider the Ext.B series particularly Exts.B(l), B(2) and B(3), rent receipts showing payment of rent by the recipients of the kabalas Ext.A(l) and A(2) executed by Amena who acquired the land so
transferred by Ext.A (the land of Ext.A was very much the land of shedule ‘Kha1 and ‘Ga’) from Izzatulla Chowdhury and that there is absence of finding as to genuineness or otherwise of the said exhibits in the judgment of the lower appellate Court and in the judgment of the High Court Division.
10. The learned Counsel for the plaintiff-Respondents submitted that the lower appellate
Court on detailed discussions of the mate rials on record arrived at the finding that the document, Ext.l was genuine and bonafide and the said finding of the lower appellate Court having been up held by the High Court Division, the said finding of fact sparingly
interfered by the superior Court unless the finding is against the materials on record or in
arriving at the said finding there was procedural error of law or that the finding arrived at was based on misconstruction of a document and mis-reading of the materials on record.
The learned Counsel also submitted that none of the aforesaid situations being not present in respect of the finding arrived at by the lower appellate Court and affirmed by the High
Court Division there is no occasion for interfering with the judgment under appeal. It has
further been submitted by the learned Counsel since the Ext.l is a genuine and bonafide documen and there being no provision in the same for revocation on the intervention of certain factor and as such even if there had been transfer by Izzatulla Chowdhury by the Ext.A for that there was no revocation of Ext.l and as such the right, title and interest of Tofazzal Hossain having not been affected by the act of Izzatulla Chowdhury by Ext.A, the right, title and interest of the plaintiffs is very much in the land in suit as being the heirs of Tofazzal Hossain in whose favour right and title in the land in suit accrued on the basis of Ext.l. The learned Counsel continued that upon taking into consideration Ext.A and the transactions of Ext.A there can not be a conclusion that
document .
11. It may be mentioned at no stage of the suit or the appeals i.e. appeal before the lower
appellate Court and the High Court Division it was never the case of the plaintiffs that transaction by Ext.A by Izzatulla Chowdhury was an attempt on his part to defraud Tofazzal Hossain. No material was brought on record that at the relevant time i.e. on January 13, 1944 there was any occasion on the part of Izzatulla Chowdhury to defraud his foster son holds of Izzatulla Chowdhury and as such it was quite possible for her to take Ext.l in her control beyond knowledge of Izzatulla Chowdhury this being the position the production of the Ext.l from the possession of plaintiff No.2 as was correctly considered by the trial Court can not be considered the factor in the determination of the character of the Ext.l i.e. whether the document Ext.l was a benami or a sale deed.
13. The lower appellate court as well as high court division while considering the nature and character of the Ext. 1 took into consideration the question of passing of consideration in respect of the transaction took place by Ext.l and upon placing reliance on the deposition of Rahmatullah (Ext.8) in the proceeding initiated under the provision of section 144 of the Code of Criminal Procedure, but lateron converted into a proceeding under section 145 of the Code of Criminal Procedure. It appears from Ext.8 that immediately after the death of Izzatulla Chowdhury in Magh, 1366 B.S. or in other words it can be said when he died in October/November, 1959, the Criminal Proceeding under the aforesaid provision of the Code of Criminal Procedure was initiated in 1960 over the possession of the land in suit. The trial Court upon assigning reason discarded the deposition of Rahmatullah, claimed to be scribe of Ext.l who deposed in the Criminal proceeding and the appellate Court upon discarding the reason assigned by the trial Court placed reliance on the evidence of the scribe that he has no reason not to tell the truth about the transaction. In our view in a contentious matter it is hazardous to place reliance on the deposition of a single witness who has deposed about a matter of long past and in the normal course of business or trade of such person it is unusual for him to remember the fact he deposed. In that state of the matter we are of the view in the absence of corroboration of the deposition of the scribe, the High Court Division as well as the lower appellate Court were in error in arriving at the finding as to the nature of the Ext.l i.e. that the said document was a sale deed and that same was not a benami deed. The High Court Division and the lower appellate Court in determining nature of the trans* action made by Ext.l considered the question of possession of the land of Ext.l and for making decision as regard possession placed reliance on the evidence of p.ws.3-5 and the documentary evidence, Exts.2-2(D) as well as the Exts.2(J)-2(L). In our view in the context of the facts and circumstances of the instant case the question of possession of the land in suit can no way be made basis in making decision regarding the nature and character of deed, Ext.l, i.e. whether the same is a sale V deed or benami deed as because the undenied position is that prior to the execution of Ext. 1, Tofazzal Hossain was fostered by Izzatulla Chowdhury and after marriage in the year 1346 B.S.Tofazzal Hossain till his death in 1353 B.S. with his wife stayed with Izzatulla Chowdhury and after Tofazzal’s death, his wife stayed with Izzatulla Chowdhury upto kartick, 1366 B.S. In that state of the matter we are of the view the evidence of p.ws. 3-5 as to cultivating the land as bargader and delivering produce of the land to Tofazzal Hossain or to his wife or to his son can not be the basis for coming to decision as to possession of land of Ext. 1 by Tofazzal Hossain or his heirs because of h fact that after the death of Tofazzal Hossain his wife and children stayed with Izzatulla Chowdhury upto kartick, 1366 B.S. and three months thereafter Izzatulla Chowdhury died in the month of magh, 1366 B.S. The payment of rent as claimed by plaintiffs on the aforesaid ground can not be made basis for arriving at a finding about the nature of the Ext.l. It may be mentioned Ets.2(m) to 2(q)are not relevant for the present appeal since those exhibits receipts) relate to the land of ‘ka’ schedule. About the decree passed in respect thereof the present appellants have not taken any appeal. The lower appellate Court while considering e nature of the Ext.l took into consideration by making transfer by Ext.A in favour of Tofazzal’s sister. Izzatulla Chowdhury by Ext.A transferred 1.31 acres of land from khatian No.28 and 1.9^2 acres from khatian No.47. No evidence has also been brought on record that relation between Izzatulla Chowdhury and his foster son was for any reason became sour or there had been misunderstanding or that there had been any incident whereby Tofazzal Hossain incurred displeasure of his foster father Izzatulla Chowdhury and that prompted Izzatulla Chowdhury to defraud Tofazzal Hossain by making transaction by the Ext.A. In that view of the matter we do not find any substance in “4 the subission of the learned Counsel for the Plaintiff-Respondents that transaction by Ext.A by Izzatulla Chowdhury was an attempt to defraud Tofazzal Hossain. The other submission was that transfer made by Izzatulla Chowdhury by Ext.A was hit by the provision of section 53 of the Act. The said submision is also of no merit since no situation as contemplates by the provision of section 53 of the Act was present in respect of the transfer made Izzatulla Chowdhury by the Ext.A in favour of Amena, the sister of Tofazzal Hossain. It may also been mentioned no such case was pleaded from the side of the plaintiffs at any point of time except in the course of hearing of the present appeal. It may be mentioned that on the day transaction by Ext.A was made by Izzatulla Chowdhury his foster son Tofazzal Hossain was very much present in the office of the sub-Registrar, The lower Appellate court has observed that because of presence of Izzatulla Chowdhury on the date Ext.A was registered he can not be fastened with the knowledge of transfer of the land of khatian Nos.28 and 47 to his sister Amena by Ext.A in our opinion the view so taken by the lower appellate Court appears to be not correct if considered in the context of normal course of business, in that there is no material on record to show that Tofazzal Hossain was in the office of the sub-Registrar for some other business and that his presence in the office of the sub-Registrar on the date in question i.e. when transfer was made by Ext.A was a coincidence since he had been in business other than the business that was transacted by Izzatulla Chowdhury by Ext.A. It may be mentioned Ext.l was executed and registred on March 9, 1939 and the Ext.A was registered on January 13, 1944. So it is seen that the transfer by Ext.A was made by Izzatulla Chowdhury about 5 years after the Ext.l. As stated hereinbefore no material was brought on record to establish the contention that by Ext.A Izzatulla Chowdhury tried to defraud Tofazzal Hossain. It may be mentioned lower appellate Court as well as the High Court Division while arriving at the finding that transfer by Ext.l was not a benami transaction took into consideration the motive, custody of the document, possession of the land as in Ext.l and payment of rent to the Zamindar and the Government.
12. The undisputed position is that Tofazzal Hossain was reared/fostered by Izzatulla Chowdhury as foster son some time before the Ext.l executed and registered in Falgoon 13, 1345 B.S. and that Tofazzal Hossain after his marriage in the year 1346 B.S. Stayed with Izzatulla Chowdhury and he died in 1353 B.S. And after the death of Tofazzal Hossain his wife and children stayed with Izzatulla Chowdhury till he drove away Tofazzal’s wife in the month of kartik, 1366 B.S. for the activities which were not liked by him and one of such activity was taking away valuable documents from the house of Izzatulla Chowdhury by the plaintiff No.2 to her parent’s house. It may be mentioned Izzatulla Chowdhury died in the month of Magh, 1366 B.S. it is also on record that till the date plaintiff No.2 was drove away by Izzatulla Chowdhury, she was the mistress of the house of Izzatulla Chowdhury and in that state of the matter it is quite probable that she had control over the management of the house of Izzatulla Chowdhury and also had access to the households of Izzatulla Chowdhury and as such it was quite possible for her to take Ext.l in her control beyond knowledge of Izzatulla Chowdhury this being the position the production of the Ext.l from the possession of plaintiff No.2 as was correctly considered by the trial Court can not be considered the factor in the determination of the character of the Ext.l i.e. whether the document Ext.l was a benami or a sale deed.
13. The lower appellate court as well as high court division while considering the nature and character of the Ext. 1 took into consideration the question of passing of consideration in respect of the transaction took place by Ext.l and upon placing reliance on the deposition of Rahmatullah (Ext.8) in the proceeding initiated under the provision of section 144 of the Code of Criminal Procedure, but lateron converted into a proceeding under section 145 of the Code of Criminal Procedure. It appears from Ext.8 that immediately after the death of Izzatulla Chowdhury in Magh, 1366 B.S. or in other words it can be said when he died in October/November, 1959, the Criminal Proceeding under the aforesaid provision of the Code of Criminal Procedure was initiated in 1960 over the possession of the land in suit. The trial Court upon assigning reason discarded the deposition of Rahmatullah, claimed to be scribe of Ext.l who deposed in the Criminal proceeding and the appellate Court upon discarding the reason assigned by the trial Court placed reliance on the evidence of the scribe that he has no reason not to tell the truth about the transaction. In our view in a contentious matter it is hazardous to place reliance on the deposition of a single witness who has deposed about a matter of long past and in the normal course of business or trade of such person it is unusual for him to remember the fact he deposed. In that state of the matter we are of the view in the absence of corroboration of the deposition of the scribe, the High Court Division as well as the lower appellate Court were in error in arriving at the finding as to the nature of the Ext.l i.e. that the said document was a sale deed and that same was not a benami deed. The High Court Division and the lower appellate Court in determining nature of the transaction made by Ext.l considered the question of possession of the land of Ext.l and for making decision as regard possession placed reliance on the evidence of p.ws.3-5 and the documentary evidence, Exts.2-2(D) as well as the Exts.2(J)-2(L). In our view in the context of the facts and circumstances of the instant case the question of possession of the land in suit can no way be made basis in making decision regarding the nature and character of deed, Ext.l, i.e. whether the same is a sale V deed or benami deed as because the undenied position is that prior to the execution of Ext. 1, Tofazzal Hossain was ostered by Izzatulla Chowdhury and after marriage in the year 1346 B.S.Tofazzal Hossain till his death in 1353 B.S. with his wife stayed with Izzatulla Chowdhury and after Tofazzal’s death, his wife stayed with Izzatulla Chowdhury upto kartick, 1366 B.S. In that state of the matter we are of the view the evidence of p.ws. 3-5 as to cultivating the land as bargader and delivering produce of the land to Tofazzal Hossain or to his wife or to his son can not be
the basis for coming to decision as to possession of land of Ext.l by Tofazzal Hossain or
his heirs because of the fact that after the death of Tofazzal Hossain his wife and children
stayed with Izzatulla Chowdhury upto kartick, 1366 B.S. and three months thereafter Izzatulla Chowdhury died in the month of magh, 1366 B.S. The payment of rent as claimed by plaintiffs on the aforesaid ground can not be made basis for arriving at a finding about the nature of the Ext. 1. It may be mentioned Exts.2(m) to 2(q)are not relevant for the present appeal since those exhibits (rent receipts) relate to the land of ‘ka’ schedule. About the decree passed in respect thereof the present appellants have not taken any appeal. The lower appellate Court while considering the nature of the Ext.l took into consideration the Ext.4 (the heba deed) by which Izzatulla Chowdhury transferred certain land to Tofazzal’s son and also took into consideration the doument by which Izzatulla Chowdhury transferred some agricultural land to Tofazzal Hossain’s wife. The view as to the nature and character of the Ext.l taken by the lower appellate Court placing reliance on the Ext.4 and another document in our view is not legally well founded since had Izzatulla Chowdhury transferred the land by Ext.l to Tofazzal in that case almost after 4 years i.e. in 1944 he would not have transferred land of the Ext.l to Amena, the sister of Tofazzal . Hossain. It may be mentioned the said trans fer was made, in the background of the materials on record, within the knowledge of Tofazzal. It may further be mentioned that whatever land Amena got by Ext.A i.e. the kabala made by Izzatulla Chowdhury in favour of Amena, she trnsferrd the land of Ext.A on 2 occasions by the Exts.A(l) and A(2) and the said transferees are in possession of the said land.
14. The learned Counsel for the appellant in support of his contention that Ext.l was a benami document emphasized the subsequent conduct of the maker of the document i.e.
Izzatulla Chowdhury as demonstrated by Ext.A. and in support of the aforesaid contention, i.e. subsequent conduct of the maker of the document which is being claimed benami document is material in determining the nature and character of the said document has referred to the case of Musammat nurjahan Begum vs Mahmudur Rahman Mallick reported in 1981 BLD (AD) 506 (same case has also been reported in 34 DLR (AD), 61). Therein it has been observed “but their subsequent conduct including, their dealings and the enjoyment of the property become relevant factors for consideration”. In the aforesaid case it has also been observed “. In a benami transaction source of purchase money is an important criteria but it is not conclusive Source of consideration moneythough an important criteria in a benami transaction, but in the absence of an unambiguous ownership consideration of other relevant circumstances become important in a case where ownership is disputed. The disputed question of benami cannot be determined only on the consideration of source of consideration money, and it becomes incumbent for the court to fall back upon the surrounding circumstances of the transaction, the position of the parties and the relationship to each other”. The learned Counsel for the appellants has submitted that the High Court Division as well as the lower appellate Court in determining the nature of Ext.l in the negative or in other words Ext.l is not a benami document but a sale deed did not at all give any importance relating to the sudsequent conduct of the parties i.e. transfer of the property of Ext.l by Izzatulla Chowdhury in the year 1944 by Ext.A to Amena, sister of Tofazzal Hossain.The learned Counsel as regard the matter of intention of the parties to the document Ext. 1 upon emphasizing the fact of transfer made by Izzatulla Chowdhury by the Ext.A submitted had Izzatulla Chowdhury intended to transfer title of the property as are in Ext.l to Tofazzal Hossain in that case he would not have dealt with the property lateron by Ext.A. The learned Counsel also referred to case of Bhim Singh (dead) by L.R.S and another Vs.kan Singh reported in AIR 1980 (SC) 727 wherein ollowing observation has been made “. The second case which is loosely termed as a benami transaction is a case where a person who is the owner of the property executes a conveyance in favour of another without the intention of transferring the title to the property thereunder. In this case, the transferor continues to be the real owner. It is the contention of the learned Counsel for the appellants since the Ext.A clearly demonstrates that Izzatulla Chowdhury had never intended to transfer the land as are in Ext.l to Tofazzal Hossain and as such the High Court Division as well as the Court of appeal below were in serious error in holding that by Ext. 1 Tofazzal acquired title without taking into consideration the material fact as demonstrates by Ext.A that Izzatulla Chowdhury never intended to transfer title of the land as in Ext.l to Tofazzal Hossain.
15. In deciding question of benami in respect of a transaction matters or factors generally taken into consideration are source of the purchase money, custody of the deed, possession of the property, motive for benami transaction, subsequent conduct of the person who said to have made the benami transaction and the intention of the person as regard the transfer claimed to be benami and subsequent dealing with the property by the person who is claiming transaction as benami. In the instant case much emphasis has been given by the appellate Court and the High Court Division in arriving at the decision that the transaction made by Ext.l was a sale on the question of payment of money, claimed to have been paid by Tofazzal Hossain, upon placing reliance on Ext. Ext.l in the proceeding as regard the property of Ext.l initiated under section 145 of the Code of Criminal Procedure. It has already been mentioned that except the evidence of deposed sufficiently long time after the transaction in 1961 about the matter took place in 1939. There is no corroboration of the evidence of the scribe. It may be mentioned Tofazzal Hossain was the record that at the relevant time i.e. March 9, 1939 Tofazzal Hossain had any source of income of his own and out of which he had capacity of making payment of the amount about which the scribe of the Ext.l deposed, it may also be mentioned it was the contention of the plaintiffs that Izzatulla Chowdhury for future provision of Tofazzal Hossin made the transfer by Ext.l. If that be so then the claim of passing consideration as deposed by the scribe of the deed does in no way fit in with the case of the plaintiffs that transaction by Ext.l was made for the future provision of Tofazzal Hossain. we have noticed that after marriage in Baishakh, 1346 B.S. Tofazzal and his wife stayed with Izzatulla Chowdhuary and that after death of Tofazzal Hossain in 1353 B.S. Tofazzal’s wife stayed in the house of Izzatulla Chowdhury and it is on record that as Tofazzal’s wife stayed with Izzatulla Chowdhury she was in full control of the management of the house of Izzatulla Chowdhury and in that state of the matter she had access to every corner of the house. It is on record that Izzatulla Chowdhury having noticed that Tofazzal’s wife was not faithful to the trust deposed by Izzatulla Chowdhury in her, he drove away Tofazzal’s wife in kartick, 1366 B.S. In the *r be ruled out as contended by the defendants that Tofazzal’s wife taking advantage of the trust deposed in her by Izzatulla Chowdhury she removed the Ext.l and in the said state of the matter she having taken control of the Ext.l. came out with the claim over the property as in Ext. 1. In the background of the facts and circumstances of the case the probability of the custody of the Ext.l as contended by the defendants with the Tofazzal’s wife can not be considered of no basis. In that view of the matter we are of the view trial Court was x quite correct in holding that custody of the Ext.l is not of so much help in determining the real nature of the Ext. 1. The other factor as is taken into consideration to determine the particular transaction is benami or not is possession of the property. The property as in Ext.l admittedly was of Izzatulla Chowdhury. Tofazzal Hossain was the foster son of Izzatulla Chowdhury and after his marriage he and his wife as well as children stayed with Izzatulla Chowdhury. In that state of the matter it can definitely be not said that possession of the land of Ext.l was exclusively with Tofazzal. The plaintiffs tried to prove their claim of possession of the land of Ext.l through the evidence of p.ws.3-5 but in the background of the facts as stated hereinbefore their evidence can not be made basis for arriving at the decision that Ext.l is not a benami deed. Though amongst other circumstances possession of the property, which is claimed to have been acquired in a benami transaction or that the transaction which is claimed to be benami, is considered important and also relevant but in the instant case in the background of the fact i.e. Tofazzal Hossain had no separateidentity being foster son of Izzatulla Chowdhury and after marriage Tofazzal Hossain and his wife and their children stayed with Izzatulla Chowdhury and after death of Tofazzal Hossain in 1353 B.S. his wife and children stayed with Izzatulla Chowdhury upto kartick, 1366 B.S. when Tofazzal’s wife and children was driven away by Izzatulla Chowdhury. As it is the undenied position that Tofazzal’s wife and his children stayed with Izzatulla Chowdhury till they were being drove out from the house of Izzatulla Chowdhury, it with certainty and definiteness cannot be said that possession of the property of Ext.l by Tofazzal Hossain and after him by his wife and children was distinguishable from the possession which Izzatulla Chowdhury had in the property in question as well as other property. In deciding the question of benami mongst other circumstances the fact if subsequent dealing with the property of the transaction which is being claimed to be benami is also considered important, in the instant case it is seen that after execution and registration of Ext.l by Izzatulla Chowdhury in 1939 in favour of Tofazzal Hossain in the year 1944 some property of the said Ext.l was transferred by Izzatulla Chowdhury in favour of Tofazzal’s sister and this shows the intention of Izzatulla Chowdhury as regard the transaction made by Ext.l. Had Izzatulla Chowdhury in fact transferred the property vesting title in Tofazzal Hossain by Ext. 1 then certainly he would not have gone for dealing with the property of Ext.l subsequently
by alienation by Ext.A to Amena, sister of Tofazal Hossain. It may also be mentioned whatever property was acquired by Amena by Ext.A, she transferred some thereof by Exts. A(l) and A(2). The transaction made by Izzatulla Chowdhury by Ext.A clearly shows that he never intended to vest any title of the property of Ext.l with Tofazzal Hossain. It may be mentioned that on the date of transaction be Ext.A by Izzatulla Chowdhury, Tofazzal Hossain was very much in the office of sub-Registrar and this shows that transaction by Ext.A was made to the Knowledge of Tofazzal Hossain and thus conclusion can logically be derive that Tofazzal Hossain was quite certain that by Ext.l no title was vest in him in respect of the property of the said document. In deciding the question of benami intention of the owner of the property executing a conveyance in favour of another whether intended to transfer the title to the property thereby is considered a factor. It has already been seen that subsequent dealing with the property by the Ext.A by Izzatulla Chowdhury clearly establishes the fact that he never intended to transfer the title as regard the property of Ext.l to Tofazzal. In the background of the afore state of the matter it can be said that transaction that was made by Ext. 1 was a benami transaction.
16. In the background of the discussion made hereinabove we find merit in the appeal.
17. Accordingly the appeal is allowed with costs. The Judgment of the High Court Division dated August 10, 1997 in Second Appeal No.162 of 1975 up holding the judgment and decree dated April 20, 1974 in Other Appeal No. 175 of 1970 of the Court of Additional District Judge, Rangpur is set aside and thereupon judgment and decree
dated June 23 of 1970 in other class Suit No. 45 of 1968 of the Court of Subordinate Judge (now Joint District Judge) is restored.
18. The receiver is directed to handover the property of schedule ‘Kha’ and ‘Ga’ to the appellants i.e. the contesting defendants.
Source: III ADC (2006) 853