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TMI Blog1954 (7) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... n as the learned Subordinate Judge in regard to the two items of Kedila properties and in regard to the coffee estate we have come to the conclusion that as per the even tenor of the sale deed which has not in any way been rebutted and shown to be what it is not, defendants 8 and 9 differing from the learned Subordinate Judge, should be held to be the real as well as apparent owners in moieties. Here are our reasons. 16. We shall take up the two items of Kedila properties first. In regard to them there are several circumstances clearly showing that Ganapathi Bhatta was not only the apparent but also the real owner. 17. The question of the greatest difficulty that arises in dealing with the benami transactions is how to distinguish the real from the benami. For indeed it is a matter of common experience that in these benami transactions, the proceedings which would attend a real transfer are carefully gone through in order to throw a veil of reality, and all the subordinate parts arc notoriously fitted in to correspond with the benami agreement in its entirety. The same motive which dictated an ostensible ownership would naturally dictate an apparent course of dealing in accordanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who is able to prove all or any of them, and thereby shift the burden of proof to establish his title to the property in question upon the opposite party, and in case he is unable to discharge the burden by adducing evidence of some one or other of the facts indicated above to rebut the presumption, he will fail. But if he is able produce such evidence, a presumption will again arise in his favour and thereby the burden of proof will be shifted to the other party. And thus after raising proper presumptions and placing the burden of proof upon proper patties, we must see whether the facts proved in this case fit in consistently with the theory of the benami or real course of dealing with the property and judge accordingly. 20. Applying these principles we find that there is no motive in this case for the joint family of Bheemayya to put the properties benami in the name of Ganapathi Bhatta. The motives which actuate the beneficial owner have been summarised as joint family system, intention to make secret family provision, Debutter, trand, avoidance of annoyance, mysterious desire to keep matters secret, risk in society and wakfs. In this case in regard to item 1 the motive is stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that this Ganapathi Bhatta was dealing in cardamom, Ex. B.10 is a letter written by Bheemayya to Ganapathi Bhatta asking the latter to bring money. Ex. B.9 is a promissory note for ₹ 1000 executed by Govinda Bhatta and another in favour of Ganapathi Bhatta. Exs. B.11 and B.12 are other letters written by Bheemayya to Gasmpathi Bhatta showing that the former was asking the latter to fetch moneys. Ex, B.31 is registration copy of an assignment deed o£ a mortgage right for ₹ 3900 executed by Ramachandra Banninthayya in favour oi Bheema Bhatta showing that Ganapathi Bhatta had a fixed deposit in the Vitla Society for a considerable amount. This Ganapathi Bhatta has given evidence shoeing that he was not a pauper as he is pictured to be and that he was not dependent upon Bheemayya's family for his maintenance. This evidence has not in any way been rebutted. Then turning to the allegation about Upendra Prabhu, it is also the case of Ganapathi Bhatta that he took a sum of money from Upendra Prabhu on the instructions of Bheemayya who had transactions with Upendra and that subsequently this amount was adjusted between himself and Bheemayya. On the other hand, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eliance upon this circumstance as discounting the story of P.W. 1 and the custody of the title deeds with D.9 as a strong circumstance in favour of his version. 23. Though it was asserted by P.W. 1 that they were in possession of the properties in dispute, it is found as a matter of fact that Ganapathi Bhatta was in possession of these properties. The changing leases in respect of item 1 are in favour of Ganapathi Bhatta and have been marked as Exs. B.14 and B.15. There has been no transfer of the registry or the leases. In regard to item 2 the Chalgeni chits in the name of Ganapathi Bhatta have been marked as Ex. B.8 series. The patta in favour of Ganapathi Bhatta is marked as Ex. B.17. In regard to the payment of cist, P.W. 1 has admitted in cross-examination that the assessment in respect of the properties appear in the name of defendant 9. It is also evidenced by Ex. B-16. P.W. l, did not produce any assessment receipts. In cross-examination though he deposed that the areca garden alone is in the possession of-defendant 9 and all the paddy fields are in his possession, he deposed that he did not know in whose name the leases of the paddy fields had been taken and that he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same inhibition was enacted in Section 260 of Act 8 of 1859; vide the Full Bench ruling in--'Mt. Bahuns Kowar v. Buhoory Lall,' 11 W .Rep 16 (FB) (C), which became -- 'Mt. Bahuns Koonwar v. Lalla Bunureelall'', 18 W R 157 (PC) (D). Section 317 of the Act of 1832 in its turn gave rise to conflicting decisions. To do away with the divergence of judicial opinion Section 68 of the present Code was enacted. But there have always been two limitations in regard to this prohibition under Section 86 C.P.C. Suits for recovery of possession were not barred under Section 317, C.P.C. of 1882 or stand barred under Section 60 of the Code of 1908 if the purchase is made by persons with express or implied authority or agency or by persons who stand in a fiduciary position. The second limitation is about the purchases made with joint family funds by the managing member of a Hindu family in the name of a third person. Where the managing member of a Hindu family makes a purchase with joint family funds but takes the sate in the name of a third person, there is a conflict of opinion as to whether any member of the family can sue the third person on the grounds that the purchase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arehouse-man or innkeeper in performance of the latter's duties to the public. In none of these capacities he is an "agent" within the above meaning as he is not acting for another in dealings with third persons. It is only when he acts as representative of the other in business negotiations, that is to say, in the creation, modification, or termination of contractual obligations between that other and the third persons, that he is an "agent." Representation of another in business negotiations with third persons so as to bind such other by his own acts as if they were done by the former, is of the essence of the relation of agency and the distinguishing feature between art "agent" and other persons who act for another. Looked at from this point of view, an agency is a contract of employment for the purpose of bringing another-in legal relation with a third party or in other words, the contract between the principal and agent is primarily a contract of employment to bring him into legal relation with a third party Or to contract such business as may be going on between him and the third party. An agent is thus a person either actually or by law he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s behalf, or even on behalf of the joint family. His case is that the joint family, in fact, bought it because it was bought with funds belonging to the joint family by defendant 1, who as 'karta' was, in the words of Mayne in his work on Hindu law acting as its mouth-piece. The 'karta' is not the agent, or trustee of the joint family, but his position has been described as like that of a chairman of a committee. The purchase being made out of joint family funds, 'ipso facto' it become immediately the property of the joint family by operation of law.--'Bodh Singh Doodhooria v. Ganesh Chunder Sen,' (supra) (I). Nor does the plaintiff claim through defendant 1, in the sense indicated in the section. His title is not derivative, like that of an heir, legatee, assignee or purchaser, and, if it could be argued that the plaintiff however unfortunately, did fall within the words of Sub-section (1), if read literally and strictly, he is protected under the provisions of Sub-section (2)." The learned Advocate Mr. Krishna Rao sought to get over this position by pleading that the term "person" in Section 66, C.P.C., cannot be made to cover joi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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