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

2. The plaintiffs-appellants instituted a suit on 30-6-1956, in the Court of Subordinate Judge, Samastipur for a declaration of title and possession in respect of a pucca house in Plot No. 216, Ward III of Samastipur Municipality. It was alleged that Abdul Karim (Defn. No. 1) had out of his own funds, purchased this house in the name of his wife Mst. Hakimunnissa by a registered sale-deed, dated 10-5-1941, from one Abdul Motilib. After the purchase, Defendant No. 1, who was in possession of the house, executed two mortgage deeds, dated 6-1-1948 and 28-7-48,in favour of his son-in-law, Abdul Latif (Defendant No. 3), husband of Mst. Bibi Hazra (Defendant No. 2). Abdul Karim (Defendant No. 1), in order to clear the mortgage dues and for meeting other necessities, agreed to sell the house to Plaintiff No. 1 for a consideration of Rs. 20,000/-. Pursuant to this agreement of sale, Plaintiff No. 1 paid a sum of Rs. 10,209-4-0, by installments, to Defendant No. 1. Another sum of Rs. 2,990-12-0 was left with Plaintiff No. 2, for payment of the mortgage debts of Defendant No. 3. Rs. 6,800/-, the balance of the price, was paid in cash to the vendor at the time of the registration of the sale-deed on 25-5-1951. Thereafter Plaintiff No. 2 got this house mutated in the Municipal records in her favour. Despite the sale, defendants Nos. 1 to 3, acting in collusion, continued to be in illegal possession of the house.3. Defendant No. 1, while admitting the execution of the sale deed dated 25-5-1951, pleaded that it was without consideration. He, however, asserted that the house had been purchased by him, and that Mst. Hakimunnissa was only his benamidar. The suit was resisted by Bibi Hazra, Defendant No. 2, on the ground that the house had been purchased by her mother, Mst. Hakimunnissa with her own money, she being a lady of considerable means; and, on Mst. Hakmunnissas death in 1944, she (Mst. Hazra) inherited and came in possession of 12 annas share therein, while the remaining 4 annas share devolved on Defendant No. 1 according to Mohammedan Law by which the parties were governed in matters of succession. Mst. Hazra further pleaded that the sale deed, dated 24-5-1951 executed by Defendant No. 1 in favour of Plaintiff No. 2, being a fictitious and collusive document, was ineffective qua her share in the house.4. The trial court held that "the disputed house did really belong to Abdul Karim, and Mst. Hakimunnissa was his benamidar in the sale-deed (Ex. D/1) by which the house was acquired." and as such Mst. Hazra (Defendant 2) had no interest in it. It further found that the sale-deed in favour of Plaintiff No. 2 executed by Defendant No. 1 in respect of the suit house was "valid, genuine and for a consideration". In the result, it decreed the plaintiffs suit.5. In First Appeal No. 619 of 1958 preferred by Mst. Hazra (Defendant No. 2), the High Court reversing the finding of the trial court, held that the plaintiffs had failed to show that Mst. Hakimunnissa in whose name the sale-deed (Ex. D/1) dated 10-5-1941 stood, was only a benamidar and not the real purchaser. In consequence, plaintiffs suit was dismissed with regard to 12 annas share of Bibi Hazra and a decree for joint possession of 4 annas share of the vendor (Defendant 1) was passed in favour of plaintiffs.

Reasoning:
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.