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TMI Blog1922 (8) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... complicated history; but upon an examination of the evidence and a review, of the relevant facts, the Subordinate Judge has come to the conclusion that the plaintiff had no vestige of a title and that they had failed to establish their possession within 12 years antecedent to the suit. In this view, the Subordinate Judge has dismissed the suit with costs. On the present appeal, the arguments have been directed towards two fundamental questions, namely, first, whether, successive purchases of the interest of Akikannessa by Abdul Majid and Abdul Azith were genuine or fictitious transactions; and, secondly, whether one Asmatannessa had a share in Champaknagar and Kalai Gobindpur, known as Budhiamara Khalasimahal, and, if so, how much. A subordinate point has also been argued with regard to the title to an indigo factory and lands appertaining thereto. 2. As regards the first point, it is not disputed that one Kalachand Mukerji obtained a decree for money against Akikannessa in 1891, and in execution brought the disputed properties to sale on the 9th March 1892 when Abdul Majid became the purchaser of three lots, two for ₹ 45 and a third I for ₹ 42 making an aggregate of & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the sale which followed, Chandrakumar Ray became the purchaser as before for ₹ 805 and the sale was confirmed, on the 24th February 1897. Before confirmation of the sales, Chandra kumar Ray and Lalitmohan Ray, however, jointly executed a conveyance, in favour of, Abdul Azim on the 13th January 1897 for a sum of ₹ 1,605, that is, upon a profit of ₹ 300 on the purchase-money actually paid at the execution sales. Meanwhile, Jabinda Khatun and others, another set of co-sharer Zemindars had obtained two rent-decrees in 1895 against Golamulla and others. The decree-holders took out execution, whereupon Abdul Azim preferred two claims. On the 4th January 1898, the claims were allowed, except in respect of the share of Akikannessa in taluk Muhammad Amiruddin. On the 24th February, 1898 Abdul Aziz, whose claim had thus proved abortive in part, took a conveyance from Abdul Majid for a sum of, ₹ 199. The substance of the transaction was that Abdul Aziz, who had failed in his claim, in respect of the share of Akikannessa, acquired the outstanding title from Abdul Majid, so that he might be able to rely thereupon in the event of future dispute. The decree-holders, Jabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, as pointed out by lord Phillimore in Maniklal Mansukbhai v. Bijoy Singh 62 Ind. Cas. 356 : 25 C.W.N. 409 : (1921) M.W.N. 80 (P.C.) the decision of the Court should rest not upon suspicion but upon legal grounds established by legal testimony. This recalls the earlier pronouncements to the same effect by Lord Westbury in Sreemanchnnder Dey v. Gopaulchunder Chuckerbutty 11 M.I.A. 28 at p. 43 7 W.R. 10 (P.C.) : 2 Sar. P.C.J. 215 : Suth P.C.J. 651 : 20 E.R. 11 (P.C.) and by Sir Lawrence Jenkins in Mina Kumari Bibi v. Bijoy Singh 40 Ind. Cas. 242 : 44 I.A. 72 : I.P.L.W. 425 : 5 L.W. 711 : 32 M.L.J. 425 : 21 C.W.N. 585: 21 M.L.T. 344 : 15 A.L.J. 382 : 25 C.L.J. 508 : 19 Bom. L.R. 424 : (1917) M.W.N. 473 : 44 C. 662 (P.C.). But we are not unmindful that, in the words of lord Hobhouse in Uman Parshad v. Gandharp Singh 14 I.A. 127 : 15 C. 20 : 5 Sar. P.C.J. 71 : Rafique and Jackson's P.C. No. 98 : 11 Ind. Jur. 474 : 7 Ind. Dec. 599. (P.C.) and of lord Shaw in Muhammad Mahbub Ali Khan v. Bharat Indu 53 Ind. Cas. 54 : 23 C.W.N. 321 : (1919) M.W.N. 507 (P.C.) as benami transactions are very familiar in Indian practice even a slight quantity of evidence to show that it was sham transacti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell in Dhurm Das Pandey v. Musammat Shama Soondari Dibiah 3 M.I.A. 229 : 6 W.R.P.C. 43 : 1 Suth. P.C.J. 147 : 1 Sar P.C.J. 271 : 18 E.R. 484 and by Knight Bruce, L.J., in Gopeekrist Gosain v. Gungapersaud Gosain 6 M.I.A. 53 : 4 W.R.P.C. 26 : 1 Sar P.C.J. 493 : 2 Suth. P.C.J. 13 : 19 E.R. 20 where, however, from the lapse of time, direct evidence of a conclusive or reliable character is not forthcoming, as to the payment of consideration, the case must be dealt with on reasonable probabilities and legal inferences arising from proved or admitted facts. Sir Arthur Wilson emphasised this when, he observed in Dalip Singh v. Chaudhrain Nawal Kunwar 35 I.A. 104 : 30 A. 258 : 10 Bom. L.R. 600 : 12 C.W.N. 609 : 14 Bur. L.R. 151 : 4 M.L.T. 141 (P.C.) that if the evidence on neither side, is wholly convincing as to the fundamental criterion, namely, the source of the purchase-money, if the evidence given and withheld is open to adverse criticism, the Court must rely on the surrounding circumstances, the position of the parties and their relation to one another, the motives which could govern their actions and their subsequent conduct, including their dealings with or enjoyment of the dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same character. As was observed by Lord Westbury in Sreeemanchunder Dey v. Gopaulchunder Chuckerbutty 11 M.I.A. 28 at p. 43 7 W.R. 10 (P.C.) : 2 Sar. P.C.J. 215 : Suth P.C.J. 651 : 20 E.R. 11 (P.C.) if we were to take away men's estates upon inferences derived from such circumstances, as these, it would" be impossible that any property would be safe. The Subordinate Judge has observed that the considerations applicable to the purchase by Abdul Majid at the execution sale, apply also more or less, to the purchases by Abdul Aziz from Abdul Majid and from the fifth defendant, Lalitmohan Ray. We may add that upon the fundamental test of possession, the plaintiffs are in inextricable difficulty; for the evidence does not establish that Akikannessa continued in occupation notwithstanding all the transfers mentioned, nor that the plaintiffs have custody of the title deeds. On a review of the whole evidence, we are not prepared to dissent from the view, taken by the Subordinate Judge that although there my be ground for suspicion and although some of the surrounding circumstances may engender doubt, no inference can be drawn from legal testimony that Abdul Majid and Abdul Azim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ahal. This confusion is reproduced in the robkari. But the thak papers as also the Settlement papers show that there is no separate mouza of the name of Budhiamara; it appears to be only another name for Kalaigobindapur and Champaknagar, which are in reality the names of two different parts of Alinagar. The partition-deed and the ekrarnama leave no room for doubt that such of the lands as, at the time, were either not in possession of the parties or were the subject-matter of litigation, were left unpartitioned. The lands of Alinagar were given to Khatunjan, and, consequently, the title to the released lands would vest in her. Her title could not be affected by reason of assertions in derogation of her undoubted right, made by Tier co-sharers and others in documents of a later date. The inference follows that the shikimi taluks are now vested in the fifth defendant, and the first four defendants are the mirashdars. Consequently, neither the plaintiffs nor the defendants, other than those mentioned, have a share in Budhiamara, and the claim in this respect has been rightly dismissed. 7. Next, as regards the indigo factory, there is no doubt that the partition-deed of the 3rd March ..... X X X X Extracts X X X X X X X X Extracts X X X X
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