9911796707
TMI Blog2008 (11) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... ve come up with the present first appeal while the plaintiff has filed a cross-objection claiming that the learned Trial Judge ought to have decreed the suit in full as prayed for in the plaint instead of declaring only half-share and the decree for joint possession in the modified form. The case made out by the plaintiff-respondent in the aforesaid suit out of which the present appeal arises may be summed up thus: (a) The suit premises belonged to one Jagannath Joshi. He was a Marwari Brahmin. The property was originally acquired by one Mangturam Marwari through a sale-deed dated 15th July, 1940. Jagannath Joshi acquired the property from Mangturam Marwari but instead of execution of a sale-deed, a registered-deed of Nadabi dated 19th July, 1940 was taken from Mangturam Marwari in the benam of his wife, viz. Moni Devi in order to avoid unnecessary expenses of payment of stamp duty. Jagannath Joshi had other brothers and so, in order to avoid any possible claim by the other brothers in future, he acquired the property in the name of Moni Debi, his wife. The wife of Jagannath Joshi had no source of income nor had she any separate fund of her own. Jagannath Joshi was a man of m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith his adoptive parents at Purulia. He got his education at Purulia for sometime and subsequently, Jagannath placed him employed in the firm of Bishandayal Ramjiban of Purulia where he served for sometime. The plaintiff was married to Sitaram Joshi in the month of May, 1945 but unfortunately, the plaintiff s husband died in the month of August following the said year. Thereafter, the plaintiff used to reside with her parents-in-law at Purulia and sometimes, lived at her father s place at Motihari. Jagannath Joshi s daughter, viz. Gomoti Debi, was married to Brijlal Shewda, the brother of the defendant no.2, viz. Debi Prasad Shewda, but he became insane before the plaintiff s marriage and he was in the lunatic asylum at Ranchi until his death. Therefore, Gomoti Debi all along stayed with her parents. Brijlal Shewda died in the month of May 1965 and Gomoti Debi used to reside with her mother as above. (g) On the death of Jagannath Joshi, the property described in Schedule 1 devolved upon his widow Moni Devi and the plaintiff as his predeceased adopted son s widow in equal shares. Moni Devi being the mother-in-law of the plaintiff used to realise rent from tenants on behalf of her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Purulia intervened and locked two rooms, which were in khas possession of the plaintiff and Gomoti Debi, and the said rooms were still under the lock and key in charge of proforma defendant no.4. Those two rooms are described in Schedule 5 of the plaint. (l) Dispute regarding title to the property of Schedule 1 of the plaint was referred to arbitration. Two arbitrators were selected by the plaintiff and the other two, by the defendant nos.1 and 2 and the arbitrators selected defendant no.4 as umpire. Ultimately, the decision was in favour of the plaintiff but in the meantime, after reference to arbitration, the defendant no.1 retracted from the reference on untrue allegations. (m) Gomoti Debi was not the full owner of the Schedule 1 property and she had only half share, which devolved upon the plaintiff on her death. The plaintiff had previously half share, which she inherited from her father-inlaw. Therefore, the plaintiff was the full owner of the entire building after the death of Gomoti Debi. (n) Gomoti Debi never adopted the defendant no.1 as a son and there was never any actual ceremony of giving and taking of the defendant no.1 by way of adoption. Moreover, the defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi. The said property was acquired by Moni Devi, the widow of Jagannath Joshi, from her own fund by a registered sale-deed dated 15th July, 1940 in the benami of Mangturam Marwari who executed and registered a Nadabi deed in favour of Moni Devi on 19th July, 1940. Mangturam was never the real purchaser nor did Jagannath Joshi purchase the property from Mangturam and the allegation, that instead of sale-deed, a registered deed of Nadabi was executed by Mangturam to save unnecessary expenditure is false. (2) There was no occasion on the part of Jagannath Joshi to acquire any property in the benam of his wife, Moni Devi. None of the brothers of Jagannath Joshi was alive at the time of the acquisition of the property and consequently, the allegation, that in order to avoid any possible claim by the brothers, Jagannath Joshi acquired the property in the benam of Moni Devi, was utterly unfounded. (3) Moni Devi was a Brahmin lady and respected by the Marwari Community of the town of Purulia. At the time of marriage ceremony and birth in the families of Marwari Community, they used to give various presentations in the form of money and valuable ornaments to Moni Devi. In this way, sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th her husband at Calcutta but when he completely became insane and the disease appeared to be incurable, she began to reside with her parents and occasionally, used to go to her father-in-law s house. The plaintiff never inherited nor could she inherit any property left by Jagannath Joshi. Besides, the suit property belonged to Moni Devi and consequently, there was no question of devolution of that property after the death of Jagannath Joshi. The property was the absolute property of Moni Devi and in any view of the matter, the plaintiff did not inherit any interest in the property described in Schedule 1. After the death of Moni Devi, the entire property devolved upon Gomoti Debi, her daughter and only child alone and she was in exclusive possession of the property described in Schedule 1. She used to realise rent from the tenants on her own account and not on behalf of the plaintiff. (7) The defendant was taken in adoption by Gomoti Debi on 17th May, 1966 after observing all the formalities required under law. The defendant was at that point of time aged 14 years and half being born on 12th December, 1951. Gomoti Debi also executed a deed of gift in favour of the defendant no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt nos.1 and 2 have preferred the present first appeal while the plaintiff has filed a cross-objection claiming the relief in full and challenging the findings of the learned trial judge as regards the title of the defendant to the extent of eight annas, that the defendant no.1 was the adopted son of the Gomati and that the deed of gift executed by Gomati Debi in favour of defendant no. 1 was a valid one. Mr. Roy Chowdhury, the learned Senior Advocate appearing on behalf of the defendants, has attacked the findings of the learned Trial Judge on the issue of ownership of the property and the alleged adoption of Sitaram and has contended that the learned Trial Judge should have dismissed the suit in its entirety. According to Mr. Roy Chowdhury, the suit property being acquired undisputedly by a deed in the name of Moni Devi, onus is upon the plaintiff to show that the property was really purchased by her husband. By referring to the plaint case, Mr. Roy Chowdhury points out that in the plaint it was alleged that the property was acquired by one Mangturam Marwari through a registered saledeed dated 15th July, 1940 and Jagannath Joshi acquired the same from Mangturam Marwari but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taram had written any letter to Jagannath Joshi or Moni Devi by describing them as his father or mother respectively. Even the school record of Sitaram could not be produced demonstrating whether Jagannath Joshi was described as the father of Sitaram although according to the plaint case Sitaram was educated in Purulia for some time. Mr. Roy Chowdhury further submits that the parties being Brahmin, according to the then law, after the Upanayan, no person could be validly taken in adoption and in this case, even according to the plaintiff, her husband was aged more than 14 years and therefore, it is apparent that the adoption of Sitaram had been allegedly taken after crossing the usual age of Upanayan and consequently, in the absence of any evidence showing that after the alleged adoption, Jagannath had made arrangement of the ceremony of Upananyn of Sitaram, valid adoption of Sitaram had not been proved in accordance with law. Mr. Roy Chowdhury further contends that according to the then law of adoption among the Brahmins, the brother s son could not be taken in adoption as there was prohibited decree of relationship between the natural mother of the adopted son and the adoptive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e benefit of the person who supplied the purchase money, unless there is evidence to the contrary; (3) the true character of the transaction is governed by the intention of the person who has contributed the purchase money and; (4) the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motives governing their action in bringing about the transaction and their subsequent conduct, etc. (See Binapani Paul v. Pratima Ghosh and Ors. [2007 (6) SCC 100). In the case before us, it has been established from the evidence on record that Jagannath had sufficient means to purchase the property by the paying the price mentioned in the deed and that his wife, viz. Moni Devi, was a mere housewife and had no other source of income. The plaintiff in her plaint stated that Jaganath purchased the property in the benam of his wife in order to avoid any possible claim in future by his brothers and that was the only motive indicated in the plaint for the alleged benami. The defendant has, however, denied such claim and has contended that at the time of purchase of the property, all his brothers were dead and thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The intention of the supplier of the consideration money is the vital fact to be proved by the party who asserts benami. In other words, even if it is proved that Jagannath paid the consideration money, the plaintiff must further prove that Jagannath really intended to enjoy the full benefit of the title in him alone; at this stage it will be profitable to refer to the following observations of the Supreme Court in the case of Jaydayal Poddar (Deceased) through L. Rs. and another vs. Mst. Bibi Hazra and others reported in AIR 1974 SC171: It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact or benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o contend that the management by the husband of the properties is inconsistent with the title of his wife to the said properties. What we have said about the management of the properties would be equally true about the actual possession of the properties, because even if the wife was the owner of the properties, possession may continue with the husband as a matter of convenience. We are satisfied that the High Court did not correctly appreciate the effect of the several admissions made by the appellant's father in respect of the title of his wife to the property in question. Therefore, we hold that the property had been purchased by the appellant's mother in her own name though the consideration which was paid by her for the said transaction had been received by her from her husband . (Emphasis supplied by us) If we consider the post transaction dealings of the property by the parties , it will appear that in the municipal records and the government records, the name of Moni Devi appeared. No evidence has been adduced to show that Jagannath, at any point of time during his life time, ever claimed the property to be his own. Even after the death of Jagannath in the y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erroneous view that merely because the consideration money might have been supplied by Jagannath, the property should be held to be owned by him in the benam of his wife by not considering the motive of Jagannath as well as the post transaction dealing of the property by Jagannath and his admitted heirs, viz. Moni Devi and Gomoti. We, consequently, hold that the property was owned by Moni Devi although, most probably, consideration money was supplied by her husband and her husband never exercised any right adverse to that of of Moni Devi in the property. The next question is whether the plaintiff has been able to establish that her husband was lawfully adopted by Jagannath in accordance with the then law of adoption prevailing among the Hindu Brahmins. Before entering into the question whether there was at all any ceremony of adoption of Sitaram by Jagannath, we propose to answer the two pure questions of law raised by Mr. Roy Chowdhury regarding the legality of the alleged adoption, even if, it is assumed for the sake of argument that any such ceremony had really taken place. The first point in this regard raised by Mr. Roy Chowdhury is that the natural mother of Sitara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the concurring judgment by Dr. B.K. Muherjee, J. at page 272). Moreover, in the other part of India, there was a view that in a case where the adoption was taken in the same family or Sakha or gotra, the Upanyan in the family of birth could not create any impediment in adoption even if taken after Upanyan. In the case before us, the adoption having been allegedly taken in the Western India and the parties being resident of Rajasthan, the said point raised by Mr. Roy Chowdhury is insignificant in the facts of the present case. Moreover, there is no definite evidence that Sitaram had undergone the ceremony of Upanyan before the alleged adoption and such plea was not even taken in the written statements. We are, thus, not impressed by the aforesaid two questions of law raised by Mr. Roy Chowdhury. We now propose to consider the question whether there was really any adoption of Sitaram by Jagananth by holding a ceremony as claimed by the plaintiff. In answering this issue in favour of the plaintiff, the learned trial judge has mainly relied upon the Exbt.- 2 and the oral evidence of P.W.- 2, the sole eyewitness of the alleged ceremony of the adoption. The learned trial jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... know the handwriting of her husband and could not prove the handwriting of the scribe of Exbt.-2. The envelope was not produced. No other letter written by Sitaram to the plaintiff or to her father was produced to show that Sitaram was the adopted son of Jagannath. Moreover, if such letter, (Exbt.2) was written to the father of the plaintiff, no reason has been assigned why such letter was handed over to the plaintiff by her mother-in-law as claimed by her while marking the same as Ext. Moreover, when according to the plaintiff, Sitaram, her husband, used to stay in the house of Jagannath in Purulia as his son, there was no just reason for Sitaram to write a letter in the letterhead of the Merchant-Firm doing business in Purulia disclosing the address of the said Firm as his own address where he was allegedly working by not describing the address of the suit property as his own residential address. What is most unexpected is that not a single scrap of paper apart from Ext- 2 has been produced to show that Jagannath or Moni Devi ever treated Sitaram as their adopted son. If Sitaram was really brought to Purulia at the age of 14, and according to the plaint case, he was educate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision, all the three conditions mentioned in the proviso to the Section 33 should be fulfilled. (See Sashi Jena and others vs. Khadal Swain and another reported in AIR 2004 SC 1492 at paragraph 8). The earlier suit, where the deceased witnesses deposed, was not between the same parties or claiming through them and the question in issue was also not substantially the same. If those two conditions were satisfied, the decision of the earlier suit would have been res judicata in the present proceedings and the plaintiff s suit would fail on that ground. Therefore, the learned trial judge in arriving at the finding that Sitaram was the adopted son of Jagannath, erroneously relied upon Exbt.-17, 17(a) an 17(c) which were inadmissible in evidence. Similarly Exbt.-2 was not at all reliable and the same was not proved to be in the handwriting of Sitaram. Now the question is whether the evidence given by P.W.- 2, the sole eyewitness of the alleged adoption, should have been believed by the learned Trial Judge. Rukmini Joshi, the P.W.- 2, is the widow of the elder brother of Sitaram. She claimed to have been present at the time of adoption of Sitaram by Jagannath. According to her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounts, in circumstances such as have been proved in the present case, would be a very suspicious circumstance. The importance of accounts was emphasised by the Privy Council in Sootrugun v. Sabitra. (1834 (2) Knapp 287); in Diwakar Rao v. Chandanlal Rao, (AIR 1916 PC 81); in Kishorilal v. Chunilal, (1908 (36) Ind App, 9): in Musammat Lal Kunwar v. Chiranji Lal, (1909 (37) Ind App 1) and in Padmalal v. Fakira Debya, (AIR 1931 PC 84). When the plaintiff relies on oral evidence in support of the claim that he was adopted by the adoptive father in accordance with the Hindu rites, and it is not supported by any registered document to establish that such an adoption had really and as a matter of fact taken place, the Court has to act with a great deal of caution and circumspection. Be it realized that setting up a spurious adoption is not less frequent than concocting a spurious will, and equally, if not more difficult to unmask. And the Court has to be extremely alert and vigilant to guard against being ensnared by schemers who indulge in unscrupulous practices out of their lust for property. If there are any suspicious circumstances, just as the propounder of the will is obliged to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er relevant issues whether Rajendra was the adopted son of Gomoti or whether Rajendra got the suit property from Gomoti by a registered deed of gift becomes insignificant in this suit. If Sitaram was not the adopted son of Jagannath, on the death of Moni Debi, the suit property devolved on her only daughter Gomoti and not upon the plaintiff. Gomoti having inherited the suit property from her mother, in the absence of her child or any deed of gift, if we assume such fact for the sake of argument, the property would devolve upon those heirs of Jagannath, her father, if Jagannath died on the date of death of Gomoti immediately after her (See Bajaya vs. Gopikabhai reported in AIR 1978 SC 793). The plaintiff being the widow of Sitaram, a nephew of Jagannath, she could not be his heir when at least one Chautamal Sharma, one of the brother s sons of Sitaram was alive on the death of Gomoti as would appear from the evidence of the plaintiff. Therefore, the brother or sisters of Jagannath, if alive on the death of Gomoti and if they were dead, the brother s sons and daughters and the sister s sons and daughters of Jagannath, would be the heirs of Gomoti as the heirs of her father and be ent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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