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TMI Blog1974 (2) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... f Jankibai was mutated in the Record of Rights. On her death, the names of Krishnaji and Dattatraya were mutated in her place. The plot was alienated by them to Usman Gani Ahmed Saheb Konkani some time in 1963. Their sons and their wives have instituted the suit out of which this appeal has arisen. They asked for alienation and for partition of their shares in the plot. It was alleged that the plot belonged to Laxman Govind Mungi and constituted ancestral property in the hands of Krishnaji and Dattatraya. The alienation was made without any legal necessity and without any benefit to the estate, it was ineffective against their interest, Usman Gani Ahmed Saheb Konkani was the first defendant in the suit. Krishnaji and Dattatraya were defendants 2 and 3. 3. Usman Gani Ahmed Saheb Konkani contested their claim. He filed a written statement. His allegations were that the suit property belonged to Jankibai and was not ancestral property in the hands of Krishnaji and Dattatraya. They had full right to alienate the property and the plaintiffs had no right in the property. He also pleaded that the alienation was binding on the plaintiffs as they have received full benefit of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the sale deed of 1909 to Smt. Satyabhamabai with the intention of becoming the owner of the suit land. Plaintiffs could not give any direct evidence about this matter. Laxman, Jankibai, Annaji and Satyabhamabai were the persons connected with the sale deed. They had died before the plaintiffs commenced their suit. Dattatraya was examined by them as a witness. He has stated that the land was purchased by money provided for by his father, Laxman. He has also said that his mother had no funds to purchase the land and that she came a poor family. He has tried to show that his father was in affluent circumstances and could purchase the land from his own funds. But the court below have not relied on his evidence and we think rightly. He is a partisan witness. He is highly interested in the success of the suit. More, he speaks with two voices. In his statement in the tenancy case No. 37 of 1956 (in which the first defendant was also a party he had stated; ...the land bearing S. No. 954 is my land...the said land was purchased by my mother and after her death myself and my brother are the owners. Contrary to this statement, he has now deposed that the land was purchased by his fath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a benami transaction. 10. ₹ 950/- were paid by Annaji, the maternal uncle of Laxman. So the trial court has drawn an inference that this amount was paid by Laxman and not by Jankibai. Here again, the High Court has disagreed with the trial court. The possibility of Jankibai keeping this amount with Annaji cannot be ruled out. After all, he was her maternal uncle-in law. He was doing forest business. So she might have kept this amount with him. As the money was with him, the sale deed contained a recital that it would be paid by him to the seller at the time of registration before the Sub-Registrar. 11. As regards the payment of ₹ 200/-, the trial court has held that this amount was also paid by Laxman. The trial court has drawn this inference merely from a recital in the registered receipt : Receipt taken in writing by Jankibai w/o Laxman Govind Mungi, represented by Laxman Govind Mungi. According to the trial court, this recital shows that the amount was actually paid by Laxman to Satyabhamabai. That is true. But that does not necessarily prove that the amount came from the pocket of Laxman. As in the case of earnest money, it is quite probable that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stered agreement with him in regard to his maintenance claim before the date of the filing of the written statement. Thus there is not even an admission by Laxman to the effect that the suit land belonged to him and not to Jankibai. 13. The agreement executed by Laxman far from helping the plaintiffs, helps the first defendant. The agreement contains this important recital : I have grown old and it has become impossible for me to do business.... As stated above you are my illegitimate son. You have passed today separately a deed of release (relinquishment) in my favour to the effect that you have given up all the rights in our movable and immovable properties etc. and your right for maintenance etc. It is, therefore, my duty to provide for you something from out of my self-acquired small property for your maintenance etc. For this reason I am giving to you the property described herein below which is standing in my own name and which is in my possession. (emphasis added). It is evident from this recital that Sadashiv had executed simultaneously a release deed in favour of Laxman in lieu of receiving maintenance in the shape of land from him. The relinquishment deed has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is wife because she was not well educated and used to keep herself in parda. (See Kanakarathanammal v. V.S. Loganatha Mudaliar). . 15. There is no other evidence regarding the conduct of Laxman in relation to the land in dispute. There is some evidence regarding the conduct of Jankibai in regard to the property. On March 30, 1942 she accepted rent from Shivram Kashiram Vazre, the tenant of the land in suit. The amount accepted was ₹ 50/- The receipt shows that the rent of the land was ₹ 70/-. She has signed the receipt. It is dated March 30, 1942. On March 30, 1948. she issued a notice to vazre to vacate the land. The notice contains a recital to the effect that S. No. 954...belonging to me is with you for cultivation on rental basis. You should vacate the land by the end of March 1949 and deliver in my possession. It appears that Vazre did not vacate. There was some litigation, and he was directed by the appropriate authority to vacate the land. In pursuance of the said direction possession over the land was delivered to Jankibai on November 30, 1949. Kabza Pawati (receipt for possession) is Ex. 180. It is dated November 30, 1949. It is addressed to the Maml ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the appellants, Laxman purchased the suit land in the name of Jankibai with the object of protecting the property from going to Sadashiv, his illegitimate son, as maintenance. The trial court accepted this motive as sufficient to explain the alleged benami character of the sale in favour of Jankibai. The High Court differed from the trial court, and we think rightly. 19. The appellants instituted the suit on October 18, 1986. The plaint did not include any allegation to the effect that the sale in favour of Jankibai was benami for Laxman. Naturally there was not a whisper in the plaint about the motive for Laxman's purchasing the property in the name of his wife. The first defendant filed his written statement on February 6, 1967 alleging that Jankibai was the purchaser and real owner of the suit land. Krishnaji and Dattatraya, defendants 2 and 3, filed a joint written statement on the same date. In paragraph 2 of their written statement they pleaded that Jankibai was a benamidar for their father, Laxman, It is however significant to note that even they did not mention any motive for disguising the sale. The plaint was then amended on March 7, 1968. The amendment int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aya in favour of first defendant. It acknowledges payment of ₹ 10,000/- by the first defendant to Dattatraya and his brother Krishnaji towards payment of sale consideration of ₹ 30,000/- for sale of the suit land in favour of the first defendant. The recital in the receipt relied on by the trial court is thus: the land bearing S. No. 954...is our ancestral ownership... we have received in all ₹ 7000/-... made up of the sum of ₹ 5000/-... and the sum of ₹ 2000/-. Further you have this day given ₹ 1000/- in each and a cheque...dated 15-4-1959 for rupees two thousand. Thus in all ₹ 10,000/- are received towards the transaction, (agreement) in respect of the suit land. The receipt is given in writing . It is signed by Dattatraya for self and for Krishnaji. 23. In his cross-examination the first defendant said in regard to this document. I... demanded the receipt for ₹ 10,000/- when payment of ₹ 3000/- was made. We demanded the receipt relating to the agreement of sale of suit land. The writer of Ex. 100 was known to him. He was some account writer of Razak Ex. 100 mentions that the land was ancestral land of defendants 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other. After her death myself my brother are the owners. It may be presumed that the first defendant also knew that the suit land was entered in the revenue records in the name of Krishnaji and Dattatraya after the death of their mother Jankibai as her heirs. So in the context of the Statement of Dattatraya in the tenancy case and the entry of his and his brother's name in the revenue record on the death of their mother as her heirs, the first defendant could easily have understood the words our ancestral ownership ' in the sense of property inherited from a maternal ancestor, that is to say, from mother and not from father. 27. Secondly, Dattatraya has not deposed that he had told the first defendant that the suit property was inherited by him and his brother from their father. He has not explained as to how the words our ancestral ownership were understood by him and the first defendant at the time Ex. 100 was executed by him. 28. Thirdly, no question was put in cross-examination to the first defendant as to how he understood the words our ancestral ownership in Ex, 100. In the absence of such cross-examination, we think that it will be unfair to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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