Protimarani Debi And Anr. v. Patitpaban Mukherjee And Ors.

Mookerjee, J.:— Premises No. 115/6, Cornwallis Street was claimed by the plaintiffs respondents to have belonged to the estate of one Mahendra Nath Mukherjee and as such they were entitled to a declaration of their title and possession.

1. For a proper appreciation of the conflicting claims reference may conveniently be made to the following genealogical table:

2. Premises No. 115, Cornwalisi Street, of which the property in suit admittedly forms a part, originally belonged to one Rakhamoni, who conveyed her right, title and interest in favour of Sarat Kumari, wife of Mahendra Nath on June 22, 1883, when Mahendra was still alive. The latter died on November 27, 1889. One of the principal questions in issue is whether the purchase in the name of Sarat Kumari was by her and for her own benefit or by Mahendra in the benami of his wife. Even if it be found that the purchase was by Mahendra in the name of his wife another question arises for decision as to whether the present plaintiffs were bonafide purchasers for value. Altenatively, it is contended that the Defendant is entitled to relief under section 51 of the Transfer of Property Act.

3. The learned Subordinate Judge came to the conclusion that the property in suit had been purchased by Mahendra Nath in the benami of his wife and it was not the Stridhan property of Sarat Kumari. After the death of Mahendra Nath, Sarat Kumari, held the property in the limited interest of a widow and when she purported to sell it there was no legal necessity. The transferee, the predecessor in interest of defendant No. 1 had not made proper enquiry. Defendant No. 1 was further found not to be a bona-fide purchaser for value and without notice. The plaintiffs' suit was accordingly decreed.

4. In this case there are peculiar facts to which reference need be made at the outset. As already stated by the conveyance dated June, 22, 1883 (Exht. 1) Sarat Kumari purported to have become the owner of several items of property mentioned in that document, one of those properties being the property in suit. Mahendra died in 1889. From March, 1892 Sarat Kumari started to transfer by successive documents her interest in the different items of property. The first of such transfers was to certain Boses, of one of the items of property, which may be compendiously described as the Muchipara property. In this conveyance [Ex. 1 (c)] Priyanath the only surviving brother of Mahendra at the) time joined as the party of the first part. It was stated in this conveyance that the property had originally belonged to Mahendra and not to Sarat Kumari. The latter was described as having got a widow's interest in the property after the death of her husband. For the purpose of effecting the sale she purported to surrender, release and relinquish her title in that particular property in favour of her husband's brother, Priyanath, and the latter as the full and complete owner thereof conveyed the same in favour of the Boses.

5. The original premises No. 115, Cornwallis Street was in course of time sub-divided in the records of the Calcutta Corporation into a number of premises. One of those portions which was numbered as 115/7, Cornwallis Street, was sold on June 3, 1902. In this conveyance (Ex. 1B) in favour of one Dutt it was stated that from the Original conveyance of 1883 it did not appear whether the subject matter of the said conveyance had been acquired by Sarat Kumari out of her own Stridhan assets or out of the funds belonging to her husband. Sarat Kumari purported to transfer as the widow and heiress of her husband and Preonath as the then only reversioner joined in the conveyance.

6. In May, 1911, Sarat Kumari purported to convey in favour of Narendra Nath and Prabirendra Nath Banerjee another portion of the original premises No. 115, Cornwallis Street— namely, 115/6, Cornwallis Street, being the property now in dispute. In this conveyance it was categorically stated that the purchase in 1883 was by Sarat Kumari herself, the consideration having been paid out of her own Stridhan assets. She asserted that she was accordingly the absolute owner of the property and purported to convey an absolute interest in favour of the purchasers. Though she’ conveyed the property as an absolute owner, in the conveyance were recited the circumstances and the necessity under which the transaction had to be entered into. It was stated that the Vendor Sarat Kumari had been suffering from a long time from various diseases, she had been advised to go out for a change and had incurred debts on that account. She was also required to spend a substantial amount for converting the service-privies in the remaining portion of original premises No. 115, Cornwallis Street and that her other properties were in urgent need of repairs. The property in question was sold to the Banerjees for a consideration of Rs. 8,500/-.

7. In January, 1922, defendant No. 1, acquired the property (premises No. 115/6, Cornwallis Street) from the Banerjees for a consideration of Rs. 33,000/-. Following the recitals in the conveyance in favour of the Banerjees the title acquired by the vendors in this document was described to be an absolute interest in the property.

8. Before defendant No. 1 had purchased the property in suit in January, 1922, Sarat Kumari had sold away in January, 1917, the remaining items of property, viz., premises Nos. 115/1, to 115/6, Cornwallis Street, in favour of one Debendra Nath Ballav. The statements contained in this conveyance were similar to those as had been made by her and Priyanath in Exht. 1(b) in favour of the Dutt's in May, 1902.

9. On behalf of the plaintiffs it is urged that in the different conveyances executed by Sarat Kumari in 1902, before her conveyance in favour of the predecessor in interest of defendant No. 1 in 1911 and also in the subsequent document of 1917 definite statements had been made by Sarat Kumari that she had only a limited estate and the Banerjees if they had made proper enquiries regarding the nature and extent of the interest held by Sarat Kumari in all the sub-divided premises which originally constituted premises No. 115, Cornwallis Street, of which the property in suit is only a part, the said Banerjees would have been cognisant of the fact that Sarat Kumari had not previously arrogated to her-self an absolute right or ownership but admitted to be merely the benamdar of her husband. The learned Subordinate Judge held that in view of this circumstance the onus lay upon the plaintiffs to prove that the apparent fact mentioned in the conveyance of 1911 was not the real fact and that such onus remained undischarged.

10. The defendant No. 1 had appealed to this Court.

11. On her death during the pendency of this appeal her successors in interest have been brought on the record.

12. It is urged on behalf of the appellants that when the conveyance of 1883 stands in the name of Sarat Kumari the presumption is that the property belonged to her. It is contended that the proposition attempted to be laid down by the trial Court that when a property stands in the name of a wife it is deemed to be the property of her husband acquired in the benami of the wife is not well founded.

13. It is observed in Mayne's Hindu Law (chap. 33, para 890):

“There is no presumption that what stands in the name of the wife belongs to the husband. Nor is there any presumption that, when property stands in the name of a female member of a-Hindu family it is the common property of the family [Official Assignee of Madras v. Natesa Gramaig (1) A.I.R 1927 Madras 194 explaining (2) (L.R 52 I.A 286)— Gnanendra v. Official Assignee of Calcutta (3) (I.L.R 54 Cal. 251 at 261) per Rankin J.]. The correct rule is that if it is proved that the purchase money came from another source it is assumed, until the contrary is shown, that the person who supplied the purchase money is the owner of the property. All that Sura Lakshmiah Chetty v. Kothandarama Chetty (2) (L.R 52 I.A 286) decided was that where a husband actually purchased property in the name of his wife, such a transaction standing alone and unexplained by other proof and admitted facts is to be regarded as a benami transaction. While the source from which the money came is undoubtedly a valuable; test, it cannot be considered to be the! sole or conclusive criterion. For the question whether a particular transaction is benami or not, is one of intention and there may be other circumstances to negative the prima facie inference from the fact that the purchase money was supplied by or belonged to another [Md. Sadiq v. Fakir Jahan (4) (L.R 59 I.A 1)], the position of the parties, their relation to one another, the motives which would govern their action and their subsequent conduct may well rebut the presumption.”

14. Reliance was placed on Sura Lakshmiah Chetty v. Kothan darama Pillai (2) (L.R 52 I.A 286) wherein it was observed that the purchase in India by a person in the name of his wife unexplained by other proof or admitted facts is a benami transaction by which the beneficial interest in the property is in the husband, although the ostensible title is in the wife. The Judicial Committee proceeded to observe “the rule of law of England that such a purchase by a husband in England is to be assumed to be the purchase for the advandement of the wife does not apply in India.”

15. The Judicial Committee made the above observation only in connection with a case where it was shown that the purchase by an individual was in the name of his wife.

16. If, however, there is no proper evidence that the purchase was by the husband this proposition cannot be attracted. The ordinary rule for testing whether a transaction was a benami one or not will be attracted even when the property stands in the name of a wife.

17. The Judicial Committee had pointed out in Kerwick v. Kerwick (5) (L.R 47 I.A 275) and repeated again in Md. Sadique Ali v. Fakir Jahan Begum (4) (L.R 59 I.A 1) that the English, doctrine of advancement when a property is purchased by an individual in the name of his wife is not attracted in India. The application of such a rule can only arise when it is proved that the purchase was by the husband in the name of his wife. The position however is different when no sufficient material is available as to the factum that the purchase was by the husband.

18. The correct proposition was stated in Official Assignee of Madras v. Natesha Gramani (1) (A.I.R 1927 Madras 194). There is no presumption that when a property stands in the name of a female the Court will immediately jump to the conclusion without any proof that it really belongs to the husband of the female. Before such a presumption is raised or attracted it is necessary for the person who wants to make out that the property is not the property of the female, in whose name the document stands, to establish the fact that the consideration money for the purchase had come from the husband.

19. If the doctrine of advancement as accepted in England were applicable to India even after proof that the consideration money had been advanced by the husband in acquiring a property in the name of the wife the Court will presume that the husband intended to create a title in the wife although the consideration came from him.

20. The ordinary rule that the onus is on the person to prove that the property belonged to somebody other than the person in whose name the title deed stands is not shifted if the property stands in the name of a married woman.

21. As already stated such scrappy evidence as had been admitted or adduced about the financial capacity of either Mahendra or Saratkumari could not be deemed to be sufficient to prove that Saratkumari was not the real purchaser. There is no suggestion that there could have been or was any motive for Mahendra to purchase property in the benami of his wife. Mahendra had no issue. He had separated from his brother. His eldest brother had died before the property in suit had been purchased by Sarat Kumari, or in the name of Sarat Kumari, even if it had been proved that the consideration had been advanced by Mahendra. There is further one significant fact that after the purchase by Sarat Kumari and during the life-time of Mahendra, Sarat Ku-mari's name was mutated as the; owner of the property. The learned Subordinate Judge had not applied his mind properly to the question of benami. He had taken up issues 5, 6 and 7 together which related to the questions whether the plaintiffs were reversioners of Mahendra Nath and had title to the property in suit on the basis of a recent conveyance dated 24th November, 1944 and whether the property in suit formed part of the assets of Mahendra or was the stridhan, property of Sarat Kumari. The conflicting statements made in the successive conveyances of Sarat Kumari have been used as the sheet anchor by the learned Subordinate Judge. He has also brought up in this connection the question whether the Banerjees had made sufficient enquiries as to the financial condition of Sarat Kumari or her husband. That is a different chapter altogether. It is necessary to examine in the first place from the materials available whether the plaintiffs have been able to prove that although the conveyance stands in the name of Sarat Kumari it was really as purchase by Mahendra in the benami of his wife. As indicated already the plaintiffs have failed to discharge that onus and it must be held that the property belonged to Sarat Kumari absolutely.

22. In view of the conclusion reached by us it is not necessary for us at this stage to consider whether the presumption as to advancement by a husband in favour of the wife or of the parents in favour of a child as applicable to Indian conditions requires further consideration. I have had an occasion) in the past to indicate that when the question comes up before the highest tribunal in India the raising of a presumption in favour of Benami when a property stands in the name of a wife will require re-consideration and restatement. In my view there is no reason why the rule of advancement as in vogue in England should not be applied to Indian conditions particularly in the changed and changing circumstances of the Indian society. It is not necessary, however, to deal with this question any further as we think that on the materials before us in this particular case there are no sufficient materials to show that the consideration did not come from Sarat Kumari but from her husband.

23. It however requires to be considered whether the vascilating conduct of Sarat Kumari from after 1892 could be relevant for deciding the question whether Sarat Kumari was the full owner or merely the benamdar. It is however peculiar that in the successive deeds of transfer she had described her interest in different ways. We do not think that such conduct will in any way affect the legal title which was in Sarat Kumari. How the interest came to be described as a limited one may be easilly explained. In the first of the conveyances viz, that of March, 1892, Preonath the only surviving brother of Mahendra joined in the conveyance. She purported to surrender, release and relinquish her limited interest in favour of her husband's brother Preonath and it was the latter, as the full and complete owner thereof, who conveyed the property in favour of the Boses. In the 2nd conveyance also she described her interest as being a widow's interest.

24. In the 3rd conveyance however Sarat Kumari purported to transfer her interest as the sole and full owner thereof.

25. The only explanation of such changing colours can be that the purchaser had insisted on the joining of the reversioner and that is how a limited interest only came to be mentioned in the deed.

26. Such future conduct might have thrown some light, had it not been the different descriptions appearing at different stages.

27. The conclusion reached by us that the property had originally been purchased by Sarat Kumari for her own benefit the defendant's stand to succeed. We would however consider the other alternative arguments also. If it be found that Sarat Kumari was not the full owner, are the defendants entitled to succeed on the footing that the transfer was for a pressing legal necessity?

28. Although in the conveyance in favour of the predecessors of the defendants Sarat Kumari alleges that she was the absolute owner, she proceeds to describe various items of pressing necessities as to why this transaction had taken place in May, 1911. On behalf of the plaintiffs it is contended that as they had purchased not from Sarat Kumari but from Narendra Nath the same rigorous test was not to be applied. Secondly the defendants contend that of the various items of legal necessity some of them at least were of a pressing nature. The’ plaintiffs however on the other hand urge that there had been no proper enquiry by the defendants or by their predecessor in interest and the defendants are not entitled to be treated as bonafide purchasers for value and to have proved the different items of legal necessity.

29. Several grounds have been mentioned in the conveyance including the allegation that Sarat Kumari had been very ill and required a change of air. Patit Paban, one of the plaintiffs, alleged that she was not ill at the relevant time. The second item is about the notice by the Corporation for converting the service privies into sanitary ones. That there were such notices are amply borne out by various documentary evidence. This would have been an item of pressing legal necessity. There was some necessity therefore at the time when the transaction had taken place. There are no sufficient materials however to indicate whether for the improvement of the privies there was a serious pressing necessity or that so large an amount as the consideration for the premises in question was or can be justified.

30. The difficulties in the case are aggravated by the fact that the solicitors who drafted the deed as also Narendra Nath Banerjee, the vendor in favour of the defendant are dead. There is no direct evidence that the other vendor Rabindra is alive and available. All the three attesting witnesses are shown to have died. The learned Subordinate Judge had been over-critical as Rabindra had not been examined and it had not been proved conclusively that he was not available. The defendant's story that some enquiry had been made cannot be disbelieved merely because more satisfactory evidence about the existence of Rabindra is not available. The nature of the enquiry however cannot be proved in the absence of the persons who were expected to conduct the same. On these materials therefore we come to the conclusion that partial legal necessity had been proved though not to the fullest extent. The defendants had made some enquiries but its nature cannot be definitely stated.

31. We next proceed to consider whether the defendant No. 1 is a bonafide purchaser without notice and that even if on the question of title the Court finds against the defendant, is she entitled to compensation for improvements? The defendants claim that Rs. 33,000/- had been spent to convert a dilapidated structure into a multi-storied building.

32. The learned Subordinate Judge has given certain reasons for not accepting the story as given by defendants' witnesses Nos. 3 to 6. It is true that no full documentary evidence is available as to the amount actually spent; but Ex. D(1) and F between June, 1922 and June, 1923 are conclusive evidence of sanction having been obtained from the Corporation and the payment to the Calcutta Corporation of encroachment fee, a substantial amount. Apart from defendants' witnesses Nos. 4 and 7, plaintiff's witness No. 1, plaintiff himself, has in part accepted the case made by the defendants about improvements. That Defendant No. 1 had made substantial additions and alterations cannot but be accepted. Even if we exclude the evidence as given by the husband of the defendant No. 1 for the present the testimony of D.W 3, 5 and 6 cannot be summarily rejected. The question whether substantial alterations have been made is different from an enquiry as to what amount had been spent for such additions and alterations. As we shall indicate later on, the evidence as to the actual amount spent is not very definite but the volume and quality of evidence in support of the allegation as to the factum of construction must be accepted. The story of additional rooms and balcony has practically been accepted by the plaintiff. We find in favour of the Defendant that she had made substantial additions and alterations to the old buildings. If we had come to the conclusion that Sarat Kumari had no absolute interest in the property and it became necessary to assess the amount of costs incurred by the defendant for improvement, further enquiry would have been necessary.

33. The nature of enquiry made before the purchase cannot be ascertained definitely as some of the persons who could have given fuller particulars are not now available. The present purchaser is, moreover, not a transferee from Sarat Kumari but had taken the same from another who was the purchaser and had been in possession for a long time.

34. The learned Subordinate Judge was really influenced by the statements in Ex. 1(a), 1(b), 1(c)-and thought that fuller enquiry could have unearthed such documents. It is no doubt true: that if a full enquiry in the Registration Offices had been made under the name Sarat Kumari in the Index of Names the earlier transactions would have transpired and put the purchaser on enquiry as to the nature of the transactions evidenced by Ex. 1(a), 1(b) and 1(c). The learned Subordinate Judge was therefore correct in his conclusion that there had been no full and complete enquiry— if there had been one the purchaser would have ascertained the conflicting claims made by Sarat Kumari as regards her title under the purchase of 1883. It is not necessary to consider further the claims under Section. 51 of the Transfer of Property Act.

35. The result therefore is that the judgment and decree of the Court below are set aside. This appeal is allowed and the plaintiff's suit dismissed with costs. Hearing fee is assessed at 20 G. Ms.

Renupada Mukerjee, J.:— I agree.

A.K.D-G.