IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.247 of 2005 1. Vijay Kumar Singh 2. Sachidanand Singh Both sons of Ram Kripal Singh 3. Ram Kripal Singh son of Ram Awtar Singh All resident of village-Kotwa, P.S. Kalyanpur in the district of Motihari. …..Defendants-Appellants-Appellants. V e r s u s 1. Santosh Prakash Lal 2. Sunil Prabhat Lal 3. Sudhir Prabhakar Lal All sons of Victor C.Lal All residents of village Basawaria, Near Missir, P.O. Pataura, P.S. Motihari Mufassil, District East Champaran. (Present address of respondent no.1 Santosh Prakash Lal, 27 Avenue bwelf Anterto Kanada) 4. Such Lata Lal 5. Sushma Lal 6. Sarita Lal All daughters of Mr. Victor C.Lal, resident at present P.C.O. 15222, Pitstry L.S.A All of village Baswaria Near Mission, P.O. Pataura, P.S. Motihari Muffasil, District East Champaran 7. Suraj Shekhand wife of Sri Vijay Shekhar, daughter of Mr. Victor C.Lal, resident of village 53, Murabad, -3, Allahabad (U.P.) at present Basawaria, near Mission, P.O. Pataura, P.S. Motihari, Mufassil, District-East Champaran. …Plaintiffs-Respondents-Respondents 8. Smt. Aneja wife of Nirmal Ratna, daughter of John Moti Lal Resident of Aneja Lodge at Bajarat…. in the district of Gorakhpur (U.P.). 9. Smt. Umedi Devi wife of Victor C.Lal, resident of village Basawaria, near Mission, P.S. Motihari Mufassil, District East Champaran 10.Smt. P.K. Obadiah, wife of W.F. Obaidiah, resident of village Basratpur, P.O. Basaratpur Obadiah lodge, Meharaj Boss Road, Opposite Dr. B.C. Mukherjee, resident of Len Coch, 2725549, Gorakhpur (U.P.). …..Defendants-Respondents-Respondents. ----------- 05/ 15.12.2008 Heard learned counsel for the appellants. 2. This second appeal has been filed by defendants- appellants-appellants challenging the judgments and decree of both the learned courts below. 2 3. The matter arises out of the Title Suit No. 248 of 1977 (20/87), which was filed by plaintiffs-respondents- respondents 1st set for partition of their 2/3rd share in the suit property and for other ancillary reliefs. Subsequently another relief was added for declaration that the two sale deeds dated 16.01.1978 executed by Shyamlal in favour of defendant nos. 4 to 6 during the pendency of the suit were void and not binding upon the plaintiffs. 4. The said suit was decreed on contest with cost against contesting defendant nos. 4 to 6 and was also decreed on the basis of compromise against the other defendant without cost by the learned Subordinate Judge-III, Motihari vide judgment and decree dated 09.08.1989. Defendant nos. 4 to 6 challenged the said judgment and decree of the trial court in Title Appeal No. 156 of 1992, which was dismissed on contest without cost by the learned Additional District Judge-cum-Fast Track Court-III, East Champaran vide his judgment and decree dated 29.04.2005. The instant second appeal has been filed challenging the aforesaid judgments and decree of the learned courts below. 5. From the averments as well as from the materials on record, including the impugned judgments and decree of the learned courts below it transpires that admittedly Pardeshi was the first husband of Kailashi Devi (defendant no.1) from whom she had a son Manoranjan @ Victor C.Lal (father of plaintiffs) who had married Umedi Devi (defendant no.2) and after the 3 death of Pardeshi the aforesaid Kailahsi Devi married a second husband, namely, Shyam Lall (defendant no.3). It is also not in dispute that the suit property was purchased by a registered deed in the name of Kailashi Devi for consideration. The dispute between the parties was that the plaintiffs claimed that the property in question was purchased by Kailashi Devi from her own money which she got after selling the properties of her previous husband, namely, Pardeshi whereas the claim of the defendants 4-6 was that the said property was purchased by Shyam Lall in the benami name of his wife Kailashi Devi and hence he had right and title in the said property which he subsequently transferred to defendant nos. 4 to 6 by two registered deeds of 1978 (C and C/a). 6. Both the learned courts below after considering the pleadings of the parties and the evidence on record came to the specific finding that Kailashi Devi had purchased the suit land by selling the properties of her previous husband, namely, Pardeshi and hence she had full right, title and interest in the suit land which after her death devolved upon her son and her grand children, namely the plaintiffs. Since the plaintiffs were claiming on the basis of registered deed of sale in favour of their ancestor and defendants 4-6 were claiming the said sale deed to be benami transaction, the onus was squarely upon the said defendants to show that it was benami transaction and for that they had to prove the motive for benami transaction and the source of money 4 by which the property was purchased. But the defendants neither pleaded any motive or source of income of Shyam Lall nor there was any evidence on these points. The learned courts below also concurrently found that there was no evidence as to how and from where defendant no.3 got money for purchase or what was the reason he purchased in the benami name of his wife Kailashi Devi, although she had a child and grand children from her first husband and hence, the defendants had clearly failed to support their claim of benami transaction in accordance with law. In the said circumstances, both the learned courts below found that there was not even a Power of Attorney executed by Kailashi Devi in favour of Shyam Lall and hence the said Shyam Lall had no right, title or authority to execute any sale deeds in favour of defendant nos. 4 to 6. It was also held that the said deeds were also hit by the principle of lis pendense and they were also with respect to very valuable lands but for very small consideration, due to which they cannot be held to be genuine. 7. In the aforesaid facts and circumstances, this court does not find any illegality in the impugned judgments and decree of the learned courts below nor does it find any substantial question of law involved in the instant second appeal, which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. harish/ ( S.N.Hussain, J.)