Nirmal Chandra Modak And Another v. Kshetra Mohan Modak And Others

Tarkeshwar Nath, J.:— This appeal by the plaintiffs arises out of a suit for a declaration that indenture of sale dated the 2nd September, 1936, executed by Indra Bhusan Modak, husband of plaintiff No. 2, and father of plaintiff No. 1, was benami, without consideration, not acted upon and null and void. The plaintiffs further made a prayer for declaration of their title as owner, of the properties described in schedules 1 and 2 of the plaint, for confirmation of possession and in the alternative for recovery of possession. The following genealogy can be had from the evidence of Lalbihari Modak (P.W 1).

2. One Nagarbasi Modak had five sons, namely, Radha Charan, Haricharan, Rebati, Kshetro Mohan and Chandra Mohan. Giribala Modak (defendant No. 11) is the widow of Radha Charan whereas Nihar Ranjan Modak and Promode Hanjan Modak (defendants 9 and 10) are sons of Radha Charan Modak. Radha Charan Modak had another son, namely, Rashbihari Modak and he is the husband of Binapani Modak (defendant No. 8) and father of Ranjit Kumar Modak (defendant No. 7). Rebati Mohan Modak had two wives, named, Hiran Bala Modak and Brinda Rani Modak (defendant Nos. 3 and 4), besides two sons, namely, Chitta Ranjan Modak and Saroda Ranjan Hodak (defendant Nos. 5 and 0). Hari Charan Modak had two sons, namely, Lalbihari Modak (P.W 1) and Indra Bhusan Modak. Chandra Mohan Modak, 5th son of Nagarbasi Modak, is defendant No. 2. The plaintiffs' case was that India Bhusan Modak was indebted and there were several decrees against him. Accordingly, he executed a mortgage bond (benami) in respect of the ‘Modak Lodge’, a house situated in the town of Deoghar, in favour of Manshapada Kundu at the instance of his uncles Rebati Mohan Modak, Kshetra Mohan Modak, Chandra Mohan Modak and his cousin Rashbihari Modak, in order to save his properties from the hands of the creditors. This mortgage bond was dated the 29th September, 1934. Subsequently, Indra Bhusan Modak executed a deed of sale on the 2nd September, 1936, in favour of Rebati Mohan Modak, Kshetra Mohan Modak (defendant No. 1) Chandra Mohan Modak (defendant No. 2) and Rashbihari Modak, but that deed as well was benami an no consideration passed. The object of that deed as well was to save the properties from the hands of the creditors. That sale deed was made over to Kshetra Mohan Modak (defendant No. 1) for safe custody, inasmuch, as Indra Bhusan Modak did not possess an iron safe. Promode Ranjan Modak (defendant No. 10) was entrusted with the duty of paying municipal tax and rent out of the income derived from the ‘Modak Lodge’ and the pro forma defendants Nos. 9 to 11 occasionally lived there as licensees under the plaintiffs.

3. Indra Bhusan Modak died in 1942, leaving behind the two plaintiffs as his heirs. The plaintiffs later on aske the defendants to execute a deed of surrender in their favour by October 1947, and the latter agreed to do so but later on they failed to execute such a document in favour of the plaintiffs. Pro forma defendants Nos. 9 to 11 were temporarily residing in the Modak Lodge as licensees with the permission of the plaintiffs. In these circumstances the plaintiffs instituted the suit in form a pauperis for the reliefs already indicated.

4. Kshetra Mohan Modak and Chandra Mohan Modak (defendant Nos. 1 and 2) supported the case of the plaintiffs and they were agreeable to execute a deed of surrender in favour of the two plaintiffs. Defendant Nos. 9 to 10 contested the suit. On the grounds inter alia that the sale deed dated the 2nd September, 1936 was not benami. According to them, Indra Bhusan Modak had borrowed a sum of Rs. 8000/- from Manshapada Kundu to pay off his debts and he had executed a mortgage bond dated the 29th September, 1934, in favour of Manshapada Kundu for consideration. Similarly, Indra Bhusan Modak executed a deed of sale in favour of Rebati Mohan Modak and others for a sum of Rs. 11,000/- in order to pay the dues of the mortgage bond and for other necessities. On the date of sale Manshapada Kundu after receiving the mortgage dues executed a deed of release in favour of Indra Bhusan Modak. They further averred that they were in possession of the ‘Modak Lodge’ in their own rights as co. owners thereof and on no account they were the licensees of the plaintiffs. According to them, there was no agreement to execute a deed of surrender and they denied the plaintiffs' title after the deed of sale. The defendants 3, 5, 6, 7 and 8 supported the case of defendant Nos. 9 to 11.

5. The learned Subordinate Judge on a consideration of the evidence came to the conclusion that the sale deed in question was for value, it was acted upon and it was not a benami deed. In other words, the plaintiffs failed to prove that the sale deed was benami and without consideration. He further found that defendant Nos. 9 to 11 were in possession of the properties in suit in their own rights as co-owners thereof and they were not licensees of the plaintiffs. He was further of the view that the suit for recovery of possession was barred by limitation as it was instituted more than 12 years after dispossession. Accordingly he dismissed the suit with costs against defendant Nos. 3 and 5 to 11 on contest and ex parte as against defendant No. 4. It was also dismissed on contest but without cost against defendants Nos. 1 and 2.

6. Being aggrieved by that decree, the plaintiffs have preferred this appeal. It appears that the plaintiffs subsequently gave up their relief for possession in this Court but still according to the prayer in the memorandum of appeal, they want a declaration that the indenture dated the 2nd September, 1936, was a benami transaction, without consideration and null and void and the pro forma defendants were mere licensees of the appellants.

7. Before coming to the merits of the appeal, it is necessary to consider the effect of the dismissal of the appeal against Brinda Rani Modak, respondent No. 4, and Nihar Ranjan Modak, respondent No. 9, on whom the notices of the appeal were not served and proper steps for fresh service were not taken within the time granted to the appellants by order No. 62 dated the 29th June 1961. It further appears that by order No. 56 dated the 1st March, 1960, a note was made that the appeal had abated against the deceased respondent No. 2 namely, Chandra Mohan Modak.

8. I shall first consider as to what is the effect of the abatement of the appeal as against Chandra Mohan Modak, respondent No. 2. It appears that by order No. 58 dated the 8th April, 1960, the Deputy Registrar directed that the question as to what was the effect of abatement of the appeal as against deceased respondent No. 2 would be considered at the time of hearing of the appeal itself as was prayed for by the counsel for the parties. This appeal was put up for the first time for hearing before us on the 18th September 1961 and it was heard in part on that date.

9. Mr. B.C Ghose, learned counsel for the appellants, submitted in course of his argument on that date that the heirs of respondent 2 were already on the record of this appeal as other respondents but in order to make the position certain he liked to file an affidavit for which the presence of one of the appellants or some one on their behalf was necessary. As no one was present for swearing in an affidavit on that date, a prayer for adjournment was made and the hearing of the case was adjourned to the 5th October, 1961, at his request. On the 5th October, 1961, as well Mr. Ghose stated that due to floods there was a breach somewhere in the railway lines and the train communication was stopped. He submitted that on account of that dislocation, nobody could come to swear an affidavit and a further time was necessary. It was accordingly directed that was the last chance that the appeal was adjourned and it would, be taken up for further hearing on the 10th October, 1961, (Tuesday). The appeal was in fact taken up on the 11th October, 1961, for hearing.

10. Mr. B.C Ghose submitted that in view of the decision in Mt. Hifsa Khatoon v. Mohammad Salimar Rahman, AIR 1959 Pat 254 (FB), no petition was necessary and on the facts and circumstances of this case, the provisions of O. 22, R. 2 of the Code of Civil Procedure were attracted and it was not necessary even to file an affidavit as to who were the heirs and legal representatives of respondent No. 2 since deceased. Learned counsel further submitted that he was not aware if respondent No. 2 had left any other heirs, but according to his instructions the heirs were already on the record of this appeal. We wanted to be sure of the position as to whether it was clear either from the pleadings or from the evidence of this case, that the respondents who were already on the record of this appeal were the only heirs and legal representatives of respondent No. 2 and in answer to that our attention was drawn to the statements made in paragraph No. 5 of the plaint and paragraph No. 3 of the written statement filed by defendants 1 and 2. From those statements it appears this much that Kshetra Mohan (defendant No. 1), Rebati Mohan, Hari Charan and Radha Charan were full brothers of Chandra Mohan Modak, respondent No. 2, and the other defendants whom I have referred to above, belong to the same family, but it is not clear as to whether Chandra Mohan Modak, respondent No. 2, left either a widow or a daughter.

11. The statement, now sought to be made, that the persons, who were already on the record, were the heirs and legal representatives of respondent No. 2, was not made before the learned Registrar when the matter was placed before him either at the time of making a note with regard to the abatement of the appeal as against respondent No. 2 or before the Deputy Registrar when he made a note that the effect of the abatement would be considered at the time of the hearing of the appeal. Time was taken twice for filing an affidavit but even then no affidavit was filed. Even a memorandum signed by the junior counsel appearing for the appellants straiting as to who were the heirs and legal representatives of respondent No. 2 has not been filed. This case is unopposed and Mr. A.B Jha for the respondents stated before us that he had no instruction from his clients. In that view of the matter and the course, which was adopted, we thought that in order to make the position absolutely clear and beyond doubt, it was better either to have an affidavit on behalf of the appellants, or even a memorandum from the junior counsel to the effect that respondent No. 2 had left no other heirs except those, who were on the record of this appeal, but neither the affidavit nor the memorandum has been filed.

12. It has been laid down in the case of AIR 1959 Pat 254 (FB), that where all the heirs or legal representatives of the deceased are already on the record in any capacity, it is not necessary to make an application for their substitution in the place of the deceased and such a case is governed by R. 2 of O. 22 and not Rules 3 and 4 of that Order. From the facts it appears that in that case, a petition was filed in the lower court that one Musammat Sayera had died leaving behind her heirs who were already on record as defendants 9(a) to 9(g). In that case it was absolutely clear that the heirs of the deceased were on the record. It further appears that in order to determine whether Rule 2 or 3 would apply, it was necessary to see whether or not the right to sue survived to the surviving plaintiff or plaintiffs alone, and that when the representatives of a deceased party were already on the record, and the right to sue or be sued survived to the remaining plaintiffs or against remaining defendants the case came within R. 2.

13. In other words, the Court has to be satisfied that right to sue survived as against the remaining defendant or defendants. Under O. 22, R. 2 of the Code of Civil Procedure a Court has to make an entry to the effect that the plaintiff's right to sue survives as against the surviving defendant or defendants but before the Court makes this entry, the Court has to be satisfied of that fact. There may be a case where the facts are quite apparent either from the pleadings or from the evidence adduced in a case such as A is a bachelor and has only B, C and D as his heirs and legal representatives. Such statement may be either in the plaint or in the written statement or in the deposition of witnesses of either side but in a case where it does not appear from the records as to who were the heirs and legal representatives of either a deceased plaintiff or a deceased defendant, then the Court has to be satisfied as to whether the persons already on the record were the heirs and legal representatives of that deceased person. It is true that no petition for substitution has to be filed but for the satisfaction of the Court there must be some tangible material before it shall cause an entry to be made on the record.

14. I do not mean to suggest that a statement made by a member of the bar should not be accepted but there should be a categorical statement that the deceased plaintiff or the deceased defendant had left no other heirs except those who were on the record of the case. There may be cases in which the matter may be contested. For example if a statement is made that A had died leaving behind B, C and D as his heirs, the other side might contest that there were other heirs besides those three persons. In those cases the Court will necessarily look for affidavits and the matter may have to be enquired on evidence as well, as is contemplated by Rule 5 of Order 22 of the CPC. The way in which the matter has proceeded before us and in view of the submissions made that the plaintiffs were not aware of any other persons as heirs I feel very great reluctance in holding that the persons, who were on the record, are the only heirs and legal representative, of respondent No. 2. A counsel's statement may be absolutely correct according to the instructions received by him and there is no doubt that what a counsel states, he may have learnt it from the person who came to instruct him. But at the same time, I have to keep in view that an unscrupulous litigant in order to suit his owe purposes might in some case choose to give wrong instruction particularly in a case where he finds that there was no opposition by the defendants or respondents.

15. For the reasons given above, I am of the view that it has not been made out to my satisfaction that all the heirs and the legal representatives of respondent No. 2 are on the record of this appeal and accordingly the case does not come within the purview of O. 22, R. 2 of the Code of Civil Procedure. The question as to what is the effect of abatement of the appeal as against respondent No. 2 will be considered hereinafter.

16. The appeal has been dismissed against Brinda Rani Modak, respondent No. 4, as steps for service were not taken within the same allowed-Learned counsel pointed out that she did not appear in the trial court and did not choose to file even a written statement. According to him, as she did not contest, the Court was not right in dismissing the suit against her. She is the wife of one Rebati Mohan Modak, who was the purchaser by the sale deed dated the 2nd September, 1936. The trial Judge came to the finding that the sale deed in question was not benami and the result of the dismissal of the appeal against Her (respondent No. 4) is that the decree of the trial court has become final as against that respondent.

17. The question arises as to whether it is open to the appellate Court to come to a different conclusion with regard to the character of the sale deed in absence of respondent No. 4 against whom the appeal stands dismissed. In my opinion, if come to the conclusion that the sale deed in question was a benami transaction, without consideration, null and void, the effect will be that there will be two inconsistent decrees in the same suit, which hag to be avoided in all such cases. The test to be applied is whether in the event of the appeal being allowed as against the remaining respondents, there would or would not be two court tradictory decrees in the same litigation with respect to the same subject-matter. (Vide Apurba Krishna Mitra v. Rama Bahadur, AIR 1936 Pat 191). The position at the time of the suit was entirely different but after the decree, the findings arrived at by the trial court have to be kept in view in this appeal. There may be a case in which a suit might not either have abated or dismissed but an appeal can abate or be dismissed as a whole and different considerations arise in an appeal.

18. Learned counsel submitted that according to the sale deed there were four purchasers and although their shares were not specified as to who paid which portion of the consideration money, even then it should be taken that they had equal shares in the properties purchased by them. That may be true between the purchasers inter see ??? mean, four persons who purchased the property, but here the situation is slightly different. I have already indicated that Rebati Mohan Modak also was the purchaser and his heirs are the two widows (defendants Nos. 3 and 4) and two sons (defendant Nos. 5 and 6). Even according to the sab-mission made before us, these defendants (Nos. 3 to 6) had one share, but out of them the appeal stands dismissed as against defendant No. 4, whereas the appeal is being proceeded with against the other three defendants.(Nos. 3, 5 and 6). The share between these defendants inter se has not been specified and cannot be specified. All of them had together one share and the position, therefore, is that it is not-possible to hold in this appeal that the deed of sale was without consideration and benami so far defendants 3, 5 and 6 are concerned while affirming the finding of the trial court that it was not benami and without consideration so far as defendant No. 4 was concerned which has to be held on account of the dismissal of the appeal against that defendant. In this view of the matter also, there is a likelihood of there being two conflicting decrees if it is held that the sale deed was either benami or without consideration so far as defendants 3, 5 and 6 were concerned. This also affects the competency of the appeal.

19. Respondent No. 9, namely, Nihar Ranjan Modak, was pro forma defendant No. 9 in the trial court. The appeal against him as well has been dismissed. Learned counsel submitted that the plaintiffs had made a prayer for declaration that defendant along with two others, namely, defendants 10 and 11, were licensees of the plaintiffs and they had no right to continue in possession of Modak Lodge any more. He further pointed out that although there was a written statement purporting to be on behalf of defendants 9 to 11, in fact, defendant No. 9 had not signed that written statement and he (counsel) was not able to trace out the Vakalatnama filed by him (defendant No. 9) from the record transmitted to this Court.

20. In these circumstances he urged that there was no contest by defendant No. 9 and he had not appeared in the trial court. I find from the paper book that there is one written statement. On behalf of defendants 9 to 11 and that was verified by Promode Ranjan Modak (defendant No. 10) and he signed for Nihar Ranjan Modak (defendant No. 9). It may be that Promode Ranjan Modak might be holding a power of attorney for Nihar Ranjan Modak (defendant No. 9) and in that capacity he verified the written statement. In any event, it is difficult to come to the suggested conclusion on materials available before us and it cannot be held that either there was no Vakalatnama on behalf of defendant No. 9 or that the written statement filed on his behalf was without any authority. The trial Judge while stating the case of the parties mentioned in his judgment that the proforma defendants 9 to 11 filed a joint written statement on 19th March, 1953. No objection on this score was taken in the trial court and there is nothing in the memorandum of appeal as well to indicate that there was no appearance or written statement on behalf of defendant No. 9 in the trial court. A decree has been passed against him as well in the sense that the suit has been dismissed on contest with costs against defendant) No. 9 and few others.

21. Learned counsel submitted that even if the appeal was dismissed against defendant No. 9, the effect of dismissal was that defendant was not a licensee of the plaintiffs and he can still contend successfully that defendants 10 and 11 belonging to the same group were still licensees of the plaintiffs. It appears from the genealogy mentioned above that defendants 9 and 10 were brothers and defendant No. 11 was their mother. Their plea in the written statement was that they were in possession of Modak Lodge in their own rights as co-owners of the property and they were not licensees of the plaintiffs. The trial Judge dealt with the matter under issue No. 8 and came to the conclusion that defendants 9 to 11 occupied the house in suit in their own right as co-owners thereof and the plaintiffs' contention that they were in possession thereof as licensees under them was wholly incorrect. The finding amounts to this that the defendants Nos. 9 to 11 were in possession of the suit properties in their own rights. It is difficult to ascertain their shares inter se in respect of that house and if the shares are unascertained, the finding arrived at by the trial Judge that they were co-owners and were in possession of the property not as licensees cannot be interfered with by reason of the dismissal of the appeal against defendant No. 9.

22. In case it is held in this appeal that defendants 10 and 11 were licensees and not co-owners, the effect would be that there will be two conflicting decrees so far that group of defendants is concerned. For this reason, the appeal has become incompetent by reason of its dismissal against respondent No. 9 as well.

23. We have, however, heard learned counsel on merits as well of this appeal and I propose now to deal with the points raised before us. The main case of the plaintiffs was that the two documents, I mean, mortgage bond dated the 29th September, 1934, and the sale deed dated 2nd September, 1936, were benami and without consideration. It was so alleged in paragraphs Nos. 5, 6 and 7 of the plaint. This case was controverted by the contesting defendants. It may be pointed out that the question as to whether the mortgage bond itself was benami cannot be gone into in the present suit, as the mortgagee or his heirs are not parties in this action and in their absence there cannot be any determination that the mortgage bond was either benami or without consideration.

24. The next question as to whether the sale deed itself was benami of course has to be gone into and the evidence has to be considered in that light. (After discussing evidence His Lordship came to the conclusion).

25. In view of the evidence and other circumstances, I would affirm the finding of the trial Judge that the deed of conveyance dated the 2nd September 1936, was not benami and without consideration. This finding has a bearing on the question of abatement of the appeal as well, on account of the death of respondent No. 2 and his heirs not having been substituted within due time. This suit is of such a nature that it is not possible to hold in part that the sale deed in question was not benami so far as certain defendants are concerned and benami as regards the other defendants. In a case of this kind, the pleading of the parties, the reliefs sought for, those granted by the trial court and the reliefs sought for in the appeal have to be taken into consideration in order to determine as to whether there is a partial abatement or abatement of the appeal as a whole. For these reasons, apart from the question of the appeal having become in competent on account of dismissal as against respondents 4 and 9, it abates as a whole on account of abatement against respondent No. 2.

26. The circumstances usually taken into consideration in determining as to whether a certain transaction is a benami, are the passing of consideration, custody of the title deed, possession of the property, motive and relationship. Plaintiffs' case has failed in respect of the first four and mere relationship between the parties will not turn the scale. There is thus no merit in this appeal.

27. There is still another difficulty in the way of the appellants for their success in this appeal. In the trial court they did make a prayer for confirmation of possession or in the alternative for recovery of possession, but in this appeal they have given up their relief for possession and the appeal is confine only to a declaration of their title as owners of the property in question and for a further declaration that defendants Nos. 9 to 11 were licensees of the plaintiffs. According to the proviso of Section 42 of the Specific Relief Act, where the plaintiff in an action is entitled to a further relief, but be does not ask for that relief it is not open to him to seek a declaration asked for. The proviso lays down that no Court shall J make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title omits to do so. In my opinion, this, proviso also is a bar to the plaintiffs' getting the 1 declarations sought for in this appeal. The result is that in any view of the matter, this appeal has no merit and it is accordingly dismissed but without costs as there has been no opposition. The plaintiffs have filed the suit in forma pauperis; and they have to pay court-fee of the plaint to the State Government. Let a copy of the decree be forwarded to the Deputy Commissioner, Santal Parganas.

Mahapatra, J.:— I agree.

LE/DHZ.

28. Appeal dismissed.