Case: Jaydayal Poddar (Deceased) Through His L.Rs Andanother Vs. Mst. Bibi Hazra And Ors

used to look after her affairs. Neither the actual delivery of Rs. 1700/- before the Sub-Registrar by Abdul Karim nor the recitals made in Ex. D/1 could be accepted as evidence of Abdul Karim being the real purchaser. Obviously he was acting only as an agent of his Pardanishin wife. For the same reasons, no significance can be attached to the fact that the sale-deed remained in the custody of the husband.13. Learned Counsel next referred to the two mortgage deeds Exhs. C-1 and C (1)-1 dated 6th January, 1948 and 26th July, 1948 respectively executed by Abdul Karim in favour of Abdul Latif (Defendant No. 3). Emphasis was laid on the fact that Abdul Latif was the son-in-law of Abdul Karim and the husband of Bibi Hazra (Defendant No. 2). We have also adverted to the discussion of this evidence in the judgment of the Sub-ordinate Judge. In agreement with the High Court, we think, that this evidence also is not of a clinching character; firstly Abdul Latif was not only the husband of Bibi Hazra, he was also the nephew of Abdul Karim; secondly these mortgages were brought into existence after the controversy had arisen. Bibi Hazra had alleged that these transactions had been brought about by her husband clandestinely in collusion with her father. In this connection, it is noteworthy that on the death of Hakimunnissa, her husband had also acquired 4 annas share in it. There was therefore, ground to suspect that Abdul Karim, taking advantage of his being a sharer in the house, brought into existence these mortgages in collusion with his nephew, to grab the entire property of Mst. Hakimunnissa.14. Learned Counsel further referred to a certified copy of the order dated 22-11-1950 (Ex. E. 1) and urged that this order whereby Mst. Hakimunnissas claim of her being the real owner of the attached house was dismissed was a weighty piece of evidence admissible under Section 13 of the Evidence Act and taken in conjunction with the judgment dated 22-11-1950 vide Ex. E (1) - 1 and the recitals in the deed was sufficient to show that Mst. Hakimunnissa was only a benamidar of her husband.15. It is common ground that the house in question at one time belonged to Abdul Motlib and he had rented it out to Abdul Karim. The original owner Motlib had mortgaged a part of the house to one Fakira Lal Sahu on 28-9-1947. Sahu filed a money suit against four persons (1) Abdul Karim; (2) Mst. Hakimunissa (3) Bibi Khatoon and (4) Sh. Motlib inter alia for the recovery of rent with interest for the period 21-3-1941 to 20-3-1942. The suit was partly decreed against Abdul Karim alone and was dismissed as against Hakimunnissa by the Munsiff on 1-3-1943 vide Exh. 1-II. Abdul Karims appeal against that decree was dismissed and the decree of the trial court with some modification was maintained. Sahu then took out execution of his decree against the judgment-debtor, Abdul Karim. Mst. Hakimunnissa filed an application under Section 47 (under Order 21, rule 57) of the Code of Civil Procedure claiming that the attached house in plot 216 was her exclusive property and her husband had no right or interest in it. Her application was dismissed by the Munsiff on 22-11-1943 with the finding that Mst. Hakimunnissa was only a benamidar of the judgment debtor. Abdul Karim. Her appeal against that order was disallowed by the Appellate Court on 21-2-1944 vide Ex. 10.16. Mr. Desai very fairly conceded that this order, dated 22-11-1943, did not operate as res judicata because the Munsiff was not competent to decide the subsequent suit from which the present appeal has arisen but he urged that this order had become final because no suit under Order 21, Rule 103 of the Code of Civil Procedure was filed by Mst. Hakimunnissa to establish her right and as such, this order even if not conclusive was a very efficacious and presumptive proof of the fact that Mst. Hakimunnissa to establish her right and as such this order even if not conclusive was a very efficacious and presumptive proof of the fact that Mst. Hakimunnissa was merely a benamidar in respect of the house in dispute.17. The contention is attractive but does not stand a close examination. It is to be borne in mind that Mst. Hakimunnissa died only a few months after the dismissal of her appeal. before the limitation for filing the suit under Order 21, Rule 103 had run out. Assuming this evidence was admissible under Section 13 of the Evidence Act, it was inconclusive and had been out-weighed by the other determinative circumstances and the preponderating probability that the purchase money came from Mst. Hakimunnissa and not from Abdul Karim.18. The judgment Exh. E (1)-1 in the rent suit filed in 1949-50 by Abdul Karim against Sh. Mohd. Yakub with regard to a shop attached to the dispute house could not, as rightly observed by the High Court, be used against Mst. Hakimunnissa who was not a party to those proceedings.19. Defendant No. 2 had also brought on the record some rent receipts and Municipal receipts A (2)-II to A (5)-II. Ex. A-II stands in the name of Mst. Hakimunnissa, It evidences payment of platform tax by her to the Municipality. It is true that the date on it was not decipherable; but it was obvious that this document concerned the disputed house and related to a period when Mst. Hakimunnissa was alive. This evidence further strengthened the conclusion that Mst. Hakimunnissa in her lifetime, and after her death, her daughter Bibi Hazra, were in enjoyment of and dealing with the house in dispute as owners thereof.20. Keeping in view the totality of the circumstances and the probabilities of the case, we have no hesitation in holding that the plaintiffs-appellants had failed to prove that Mst. Hakimunnissa in whose name the sale deed (Ex. D/1) stood, was not the real purchaser but only a benamidar of her husband.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]This contention does not appear to be tenable. It is not proper to tear the above recitals out of the context and read them in isolation. They must be read with the preceding and succeeding contents of the document (Ex. D/1) and also the connected recitals in the sale-deed, (C-(1)-(II)) dated 1st April, 1942. In the latter deed Hakimunnissa inter alia stated that she had previously taken in mortgage plot No. 216, per registered mortgage bond dated 13-9-1940 from one Sh. Abdul Motlib and later on she had purchased that plot including the house, for Rs.4300/- under the sale-deed dated 10th May 1941 (Ex. D/1) from this Motlib. It is significant to note that Abdul Karim (Defendant No. 1) had signed this deed as an attesting witness. In the deed Ex. D/1, there is a clear reference to this previous mortgage executed in favour of Mst. Hakimunnissa and the vendor therein is repeatedly referring to Mst. Hakimunnissa as the claimant (creditor) and the payment of these past debts is mentioned as a reason for making the sale by the vendor Motlib. The learned Judges of the High Court have rightly construed these recitals as indicative of Hakimunnissa being the real purchaser of the property.No evidence whatever was led to show that there was any motive or reason for giving a benami character to the transaction. Abdul Karim who had special knowledge of the circumstances bearing on such motive, if any, did not say a word on this point. There was not even an oblique suggestion that Abdul Karim was heavily under debt and in order to avoid payment of such debts, he thought it fit to acquire the house in the name of his wife.12. No capital can be made out of the circumstance that the negotiations for the purchase of the house were carried out by Abdul Karim and a sum of Rs. 1700/- towards the part of the price was paid before the Sub-Registrar by him. It is in evidence that Hakimunnissa was a Pardanishin lady and naturally therefore it was her husband who used to look after her affairs. Neither the actual delivery of Rs. 1700/- before the Sub-Registrar by Abdul Karim nor the recitals made in Ex. D/1 could be accepted as evidence of Abdul Karim being the real purchaser. Obviously he was acting only as an agent of his Pardanishin wife. For the same reasons, no significance can be attached to the fact that the sale-deed remained in the custody of thehave also adverted to the discussion of this evidence in the judgment of the Sub-ordinate Judge. In agreement with the High Court, we think, that this evidence also is not of a clinching character; firstly Abdul Latif was not only the husband of Bibi Hazra, he was also the nephew of Abdul Karim; secondly these mortgages were brought into existence after the controversy had arisen. Bibi Hazra had alleged that these transactions had been brought about by her husband clandestinely in collusion with her father. In this connection, it is noteworthy that on the death of Hakimunnissa, her husband had also acquired 4 annas share in it. There was therefore, ground to suspect that Abdul Karim, taking advantage of his being a sharer in the house, brought into existence these mortgages in collusion with his nephew, to grab the entire property of Mst. Hakimunnissa.The contention is attractive but does not stand a close examination. It is to be borne in mind that Mst. Hakimunnissa died only a few months after the dismissal of her appeal. before the limitation for filing the suit under Order 21, Rule 103 had run out. Assuming this evidence was admissible under Section 13 of the Evidence Act, it was inconclusive and had been out-weighed by the other determinative circumstances and the preponderating probability that the purchase money came from Mst. Hakimunnissa and not from Abdul Karim.18. The judgment Exh. E (1)-1 in the rent suit filed in 1949-50 by Abdul Karim against Sh. Mohd. Yakub with regard to a shop attached to the dispute house could not, as rightly observed by the High Court, be used against Mst. Hakimunnissa who was not a party to those proceedings.19. Defendant No. 2 had also brought on the record some rent receipts and Municipal receipts A (2)-II to A (5)-II. Ex. A-II stands in the name of Mst. Hakimunnissa, It evidences payment of platform tax by her to the Municipality. It is true that the date on it was not decipherable; but it was obvious that this document concerned the disputed house and related to a period when Mst. Hakimunnissa was alive. This evidence further strengthened the conclusion that Mst. Hakimunnissa in her lifetime, and after her death, her daughter Bibi Hazra, were in enjoyment of and dealing with the house in dispute as owners thereof.20. Keeping in view the totality of the circumstances and the probabilities of the case, we have no hesitation in holding that the plaintiffs-appellants had failed to prove that Mst. Hakimunnissa in whose name the sale deed (Ex. D/1) stood, was not the real purchaser but only a benamidar of her husband.