Case No: Civil Appeal No. 65 of 1993
Judge: Bimalendu Bikash Roy Choudhury,
Court: Appellate Division ,,
Advocate: Md. Moksudur Rahman,MR. SR Pal,,
Citation: 49 DLR (AD) (1997) 73
Case Year: 1997
Appellant: Rupe Jahan Begum and others
Respondent: Lutfe Ali Chowdhury and others
Subject: Revisional Jurisdiction, Procedural Law,
Delivery Date: 1996-08-21
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Md. Abdur Rouf J
Bimalendu Bikash Roy Choudhury J
Rupe Jahan Begum and others
Lutfe Ali Chowdhury and others
August 21, 1996
Code of Civil Procedure (V of 1908)
The finding that the transactions in respect of the suit lands were not benami being essentially a finding of fact is immune from revision unless it is shown that the finding based on gross misreading of evidence or non-consideration of material evidence or it has been founded on misconception of law occasioning failure of justice.….. (15)
Cases Referred to-
Gopeekrist Gossain vs. Oungapershad Gossain (1854) 6 MIA 53; Nurjahan Begum vs. Mahmudur Rahman 34 DLR (AD) 61; Bilas Kunwar vs. Desraj Ranjit Singh (1915) LR 42 IA 202;Imambandi Begum vs. Kumleshwari Pershad (1886) LR13 IA 160; Ram Narain vs. Mohammad Hadi (1898) LR 26 IA 38; Jaydayal Poddar vs. Bibi Hazra (1974) 2 SCR 90; Mohammad Sadeq Ali Khan vs. Fakhr Jahan Begum (1932) 59 IA (PC) 1.
SR Pal, Senior Advocate, instructed by Shamsul Haque Siddique, Advocate-on-Record — For the Appellants.
Moksudur Rahman, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record-For Respondent No. 1.
Not represented— Respondent Nos. 2-7.
Civil Appeal No. 65 of 1993.
(From the judgment and order dated 18 April 1993 passed by the High Court Division, Dhaka in Civil Revision No. 89 of 1987 (Chittagong) and 1894 of 1991 (Dhaka).
Bimalendu Bikash Roy Chowdhury J:
This appeal by the defendants, following leave, is directed against the judgment and order dated 18 April 1993 passed by a learned Single Judge of the High Court Division in Civil Revision Nos. 89 of 1987 (Chittagong) and 1894 of 1991 (Dhaka) making the Rule absolute and sending the suit back to the trial Court for disposal in accordance with law and in the light of observations made in the judgment.
2. The decision of this appeal turns upon the question whether the High Court Division, in exercise of its powers under section 115 of the Code of Civil Procedure, acted beyond its jurisdiction, in setting aside the concurrent findings of the first two courts below and sending back the case on remand.
3. The facts are brief. One Ali Akbar Chowdhury instituted Other Suit No. 10 of 1982 in the Third Court of Munsif, Chittagong for declaration that defendant No. 1, his eldest daughter was his benamder in respect of the suit lands described in schedules 1-5 to the plaint and he was the ostensible owner of the same. A further declaration was sought to the effect that the registered Heba-bil-Ewaj executed by defendant No. 1 in favour of her husband, defendant No. 2, was void and not binding upon him.
4. The case of the plaintiff set out in his plaint was that defendant No. 1 was very affectionate to him. He purchased schedule 1 land in her name by means of a Kabala dated 9 July 1952 on payment of the entire consideration. Similarly, he purchased schedules 2-5 lands from different persons by the kabalas dated 10 September 1956, 5 November 1956 and 9 September 1957 with his own money. He took delivery of all the original kabalas from the Sub registry and kept them in his custody. Since the said purchases the plaintiff had been in possession of the suit lands on payment of rents. But his daughter, defendant No. 1, who was issueless had executed a collusive deed of Heba-bil-Ewaj in favour of her husband defendant No. 2 on 8 September 1974 and her husband in his turn created certain agreements for sale in favour of one Faruk Ahmed Chowdhury and his wife and children, (added-defendant Nos. 4-9) who had brought suits for specific performance of contract. In those Suits some of the lands of the plaintiffs were included. The plaintiff got himself impleaded in those suits and demanded a deed of relinquishment from his daughter which having been refused he was obliged to bring the suit.
5. The suit was contested by defendant Nos. 1 and 2 as well as defendant Nos. 4-9 upon similar written statements. Their case, in short, was that the suit lands were acquired by defendant No. 1 with her own fund and in her own interest. She possessed the suit land through Bargadar and paid rents from her own income. She also submitted statement of property including the suit land under President’s Order No. 98 of 1972 showing the said land as her own. The deed of Heba-bil-Ewaj in favour of defendant No. 2 was genuine and acted upon. While in possession on the basis of the said deed defendant No. 2 entered into three separate agreements for sale in respect of 3.38 acres of the land in suit with defendant Nos. 4-9 and delivered possession there of in their favour in part performance of the contracts. Since then defendants No. 4-9 had been in possession of the said lands. They instituted the above mentioned suits for specific performance of the contracts for failure of defendant No. 2 to execute and register the kabalas in time.
6. The learned Munsif disbelieved the plaintiff’s claim and dismissed the suit finding that the plaintiff failed to establish that the purchases in respect of the Suit lands were benami and that he had possession therein. He further found that without a prayer for khas possession the suit was barred under section 42 of the Specific Relief Act. In arriving at his decision the learned Munsif considered the material evidence on record keeping in view the principles governing the determination of the question whether a transfer is a benami transaction or not.
7. The plaintiff then took an appeal being Other Appeal No. 89 of 1987 therefrom. The appellate Court upheld the decision of the trial Cowl concurring with the material findings of the said court.
8. Aggrieved plaintiff preferred Civil Revision No. 89 of 1987 (Chittagong) and 1984 of 1991 (Dhaka) to the High Court Division. But on his death during the pendency of the case present respondent Nos. 1-6 were brought on record by way of substitution.
9. After a hearing a learned Single Judge of the High Court Division sent the case on remand after setting aside the concurrent findings of the courts below by the judgment impugned before us.
10. Appearing for the defendant- appellants Mr. SR Pal, learned Counsel submits that the High Court Division travelled beyond us jurisdiction under section 115 of the Code of Civil Procedure in reversing the concurrent findings of the first two courts below which were based on cogent evidence.
11. In reply Mr. Moksudur Rahman, learned Counsel for the plaintiff-respondents, argues that the judgment of the appellate Court suffers from misreading and non-reading of evidence. He further argues that the lower appellate Court failed to appreciate the evidence in its true perspective. He therefore contends that the High Court Division committed no illegality in reversing the decision and sending back the case for fresh disposal.
12. The submissions of the learned Counsel for both the parties necessitate close scrutiny of the impugned judgment in order to ascertain if the said judgment suffered from any error of law and/or misreading of evidence as would call for interference by the High Court Division in its revisional jurisdiction under section 115 of the Code of Civil Procedure.
13. The main question that came up for consideration in the suit was about the title of the suit lands. The plaintiff claimed that he purchased the same in the name of his eldest daughter, defendant No. 1 which was, of course, denied from the side of the defendants. It is admitted on all hands that the concerned kabalas stand in the name of defendant No. 1. Both the trial Court and the appellate Court were therefore called upon to determine whether the transactions were benami or not. The law of benami transaction has long been settled. The Judicial Committee of the Privy Council in Gopeekrist Gossain vs. Gungapershad Gossain (1854) 6 MM 53 was probably the first authority on the subject. Since then the superior courts f this sub-continent more or less followed the principles enunciated in the said case and certain other cases decided by the Privy Council. This court in the case of Nurjahan Begum vs. Mahmudur Rahman 34 DLR (AD) 61 traced the history of benami transaction and also the law propounded by the Privy Council for the following conclusions:
In a benami transaction source of purchase money is an important criteria (sic) but it is not conclusive. The initial presumption in the case of a transfer concluded by a registered deed is in favour of the person whose name appears as the transferee in the deed, but this presumption is rebuttable. 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, 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 motive which could govern their actions, but their subsequent conduct including their dealings and the enjoyment of the property become relevant factors for consideration. In the case of Bilas Kunwar vs. Desraj Ranjit Singh (1915) LR 42 IA 202 the Privy Council while adopting the principle an laid down is Gopeekrist Gossain’s case, that the criterion in benami cases is the source of money with which the consideration was paid, made an important qualification, in that the source of purchase money is only to be the criterion in the absence of all other relevant circumstances, Among other circumstances possession of the property has been held to be very important. Privy Council in Imambandi Begum vs. Kumleshwari Pershad (1886) LR 13 IA 160 held as under:
“Where there are benami transactions and the question is who is the real owner, the actual possession or receipt of rents of the property is most important.”
In the case of Ram Narain vs. Mohaminad Hadi (1898) LR 26 IA 38 the Privy Council laid stress on the factum of possession of the property and the collection of rents. Incidentally, it may be mentioned that in a disputed case of benami, custody of the documents is a relevant factor to be considered.”
14. The Supreme Court of India in Jaydayal Poddar vs. Bibi Hazra (1974) 2 5CR 90 had summed up the principles governing determination of benami transaction to which we have respectful approval, in the following words:
“It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on tine person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a 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, uniformly applicable in all situations, can be laid down; yet in weighing the probabilities 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 colour, (4) the position of the parties and the relationship, if any between, the claimant and the alleged benamder, (5) the custody of the title deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale.”
15. It appears that the lower appellate Court dealt at length upon the evidence and circumstance of the case in the light of the aforesaid principles upon which the benami nature of a transaction is determined and concurred with the material findings of the trial Court. In coming to its conclusion the appellate Court relied on the following circumstances. The motive of acquisition of the Suit lands by the plaintiff in the benami of defendant No. 1 had not been substantiated. It was against the normal human conduct that the father would buy land in the name of his daughter even after her marriage: The plaintiff failed to lead any reliable evidence to prove that he paid the consideration money for the transactions in question. On the other hand, it was borne out from the evidence of the plaintiff that the husband of defendant No. 1 had been solvent since before the marriage of defendant No. 1 with him and that the plaintiff presented golden ornaments to his daughter. The recitals in the different kabalas in favour of defendant No. 1 clearly showed that the consideration for the same had been paid by the karjyakarak of defendant No. 1. Although the original Kabala documents came from the custody of the plaintiff the defendants offered sufficient explanation that defendant No. 1 brought the documents to her father’s house for the purpose of payment of rent but due to her illness she forgot to take them back with her, and further produced all other documents namely, khatians and rent receipts showing payment of rents by defendant No. 1 through her karjyakarak. The plaintiff was not in possession of the disputed lands. Rather the defendants had been in possession thereof. Ext. B series showed that defendant No. 2 submitted a statement under President’s Order No. 98 of 1972 on behalf of defendant No. 1 in respect of the suit lands claiming the same to be her own while the plaintiff did not. Had the plaintiff been the real owner of the suit lands he would have certainly filed such a statement and this aspect spoke a volume against the plaintiff’s claim of ownership of the disputed lands. The plaintiff himself gave out that schedule 1 land was purchased by him in the name of defendant No. 1 out of his love and affection for her which indicated that the purchase was for the benefit of defendant No. 1. The finding that the transactions in respect of the suit lands were not benami being essentially a finding of fact is immune from revision unless it is shown that the finding is based on gross misreading of evidence or on non consideration of material evidence or it has been founded on misconception of law occasioning failure of justice. The learned Judge of the High Court Division did not at all refer to any particular evidence when he made some sundry observations that the courts below failed to appreciate the evidence in its true perspective and also misread certain evidence before passing his verdict. The learned Counsel for the respondents could not also point out that there was any misreading or non-reading of evidence either by the appellate Court or the trial Court that deserved interference from the revisional court.
16. Mr. Moksudur Rahman has however attempted to submit that the Kabala in respect of schedule 1 land having been admittedly executed before the marriage of defendant No. 1 when she had no money to pay for the transaction the purchase could not but be a benami one. Mr. Pal, on the other hand, pointed out that according to the plaintiff schedule I land was purchased in the name of defendant No. 1 out of his love and affection for her which was sufficiently indicative that the purchase of the said land was for the benefit of defendant No. 1. But the High Court Division failed to notice the same.
17. In the case of Mohammad Sadiq Ali Khan vs. Fakhr Jahan Begum (1932) 59 IA (PC) 1 a Mohammedan purchased an immovable property taking the conveyance in the name of his daughter who was five years of age. Upon her marriage, the deed was sent for the inspection of her father-in-law. After the death of the donor it was contended that the property was part of his estate, the purchase being benami, the Judicial Committee of the Privy Council held that there was a valid gift to the daughter because there was proof of a bona fide intention to give, and that intention was established. In course of the judgment their Lordships observed:
“The purchase of this property was a very natural provision by Baqar Ali for the daughter of his favourite wife and though there may be no presumption of advancement in such cases in India, very little evidence of intention would be sufficient to turn the scale. The sending of the deed for the inspection of the lady’s father-in-law, which the Chief Court held to be established, was clearly a representation that the property was hers, and their Lordships agree with the learned Judges in the conclusion to which they came.”
18. As already noticed there is enough in the facts of the case to negative any inference that the transaction was benami even it be assumed that the purchase money proceeded from the father. The learned Single Judge of the High Court Division lost sight of this aspect of the case.
19. It is the further submission of the learned Counsel for the appellants that the first two courts below concurrently found that the plaintiff had no possession in the suit lands and that without a prayer for recovery of khas possession the suit as framed was not maintainable, but the learned Judge of the High Court Division did not reverse the said findings and thus committed an error of law in passing his judgment. The learned Counsel for the respondents finds it difficult to repel the contention. We find substance in the contention of the learned Counsel for the appellants.
20. For the reasons stated herein-above we are of the opinion that the learned Single Judge of the High Court Division acted beyond his jurisdiction under section 115 of the Code of Civil Procedure in setting aside the concurrent findings of fact and sending back the case on remand to the trial Court.
In the result, this appeal is allowed with costs and the impugned judgment and order of the High Court Division stand set aside.