P L D 1952 Dacca 389 (PLP)

Plaintiff No. 1 Gopal Pramanik and late Enat Pramanik were two brothers. By a kabala executed in favour of Enat Pramanik alone both the brothers are said to have purchased the suit land appertaining to khatian No. 104 bearing yearly rent of Rs. 2‑9‑0 from one Meherali Khondkar. Since the purchase both the brothers were in possession. After the death of Enat Pramanik his son Eman, daughter Fatejan and widow Sabejan and plaintiff No. 1 Gopal Pramanik jointly possessed the property. Eman, Fatejan and Sabejan owed a debt to one Jamir Hazi. In order to save the property from the clutches of the creditor they executed a benami kabala in favour of Fuljan, sister of Enat Pramanik, and Gopal Pramanik in 1326 B.S. But even after the execution of the kabala they remained in possession till they were dispossessed by defendant No. 1 step‑son of Fuljan, from the disputed property in Agra hayan. 1349 B. S. Eman died in 1331 B. S. leaving his mother Sabejan, sister Fatejan and paternal uncle Gopal Pramanik, plaintiff No. 1, as. his sole heirs. Then Fatejan died leaving behind her son, plaintiff No. 2 and her husband plaintiff No. 3 and mother Sabejan as her heirs. Sabejan died 8 or 9 years back leaving her daughter's son as her heir: Plaintiff No. 1 has been possessing the disputed land jointly with those heirs, i.e., plaintiffs Nos. 2 and 3, both as owners of the 8 arenas share by purchase in the name of Enat Pramanik and as heir of Eman Pramanik. It is the case of the plaintiffs that even after the benami kabala Exh. 1 regarding the property, the plaintiffs were in possession for more than 20 years till they were dispossessed in Agrahayan, 1349 B. S., and neither Fuljan nor her heirs ever acquired any interest in the disputed property or possessed the disputed land and the title‑deed and other papers of this property including the kabala Exh. 1 were all along in possession of the plaintiffs. Two sets of defence were filed‑one by defendants Nos. 1 and 2 jointly and the other by defendants Nos. 3 and 4 jointly. Defendants Nos. 3 and 4 disclaim any interest and pleaded that they were unnecessarily made parties to the suit. The defence of defendants Nos. 1 and 2 areas follows : Plaintiff No. 1 has no interest in the disputed land which exclusively belonged to Enat Pramanik in whose name alone the kabala Exh. B stands and that after his death his heirs had the 16 annas interest and were in possession therein. While they were in such a possession they jointly executed a kabala regarding this land in favour of Fuljan on the 8th Magh, 1.326 B. S., for a consideration of Rs. 65 for maintaining themselves and also for paying off their debts. Since the purchase Fuljan was in possession till her death in 1333 B. S. through her husband Kasir Pramanik who died in 1330 B. S. and thereafter with the help of plaintiff No. 1 Gopal Prama nik, the brother 61 Fuljan. When she (Fuljan) died in 1333 B: S. her insane son Tonai was in possession and that too with the help of plaintiff No.

1. Tonai died in Jaistha 1334 B. S., and after the death of Tonai, defendant No. 1 inherited the property as his consanguine brother and has been in possession since then. These defendants asserted that the kabala in favour of Fuljan was quite a bona fide transaction for valuable consideration and the plaintiffs' story of possession and dispossession was quite false. The trial Court decreed the suit holding that the kabala Exh. B though stands in the name of Enat Pramanik was purchased by both the‑brothers Enat and Gopal Pramanik and as such the plaintiff No. 1 Gopal was entitled to 8 annas share and the remaining 8 annas share was inherited by man, Fatejan and Sabejan, son, daughter and widow, respectively of Enat Pramanik and on the death of Eman, plaintiff No. 1 inherited further share from the nephew Eman and the property was all along in joint possession of plaintiff No. 1 with Enat Pramanik, and then with his son Eman, daughter Fatejan and widow Sabejan and after the death of Eman, with Fatejan and Sabejan, in spite of the kabala Exh.1, dated the 8th Magh 1326 B. S., till they were dispossessed in Agrahayan 1349 B. S., and the kabala Exh. 1, was nothing but a paper transaction and a benami document and it, was never acted upon. On appeal the lower appellate Court set aside the judg ment and decree of the trial Court holding that the property purchased by the kabala Exh. B which stands in the name of Enat alone was his self‑acquired property and plaintiff No. 1 had no interest in it and that the kabala Exh. l executed by Eman, Fatejan and Sabejan, son, daughter and widow of Enat was a genuine document and not a benami transaction and she (Fuljan) was in possession of the same first with the help of her husband Kasir Pramanik and then with the help of her brother plaintiff No. 1 Gopal Pramanik and acquired a good title by that kabala and plaintiff had no interest, after that kabala, in the property and dismissed the suit of the plaintiffs. But the lower appellate Court has not considered the effect of the transfer by Sabejan on behalf of her minor daughter Fatejan. Trial Court held that the' transfer for a Muhammadan mother of her minor child's property was void. Against this decision, the plaintiffs have filed the present appeal. During the pendency of the appeal one of the plaintiffs -appellants, namely, Gopal Pramanik died and his heirs were not substituted and time for substitution of his heirs and legal representatives having elapsed, the appeal, so far as the deceased appellant is concerned, abated. The learned Advocate, Mr. Priyanath Bhattacharjee appearing on behalf of the defendants respondents raised a preliminary objection that on account of the abatement of the appeal so far as the deceased appellant No. 1 is concerned, the whole appeal has become incompetent in view of the fact that it is an appeal arising out of a suit for khas posses sion after evicting the defendants from the suit land on the allegation that the defendants dispossessed the plaintiff from the suit land and the cause of action did not survive to the surviving plaintiffs‑appellants alone. Mr. Tapendra Kumar Pal, 'the learned Advocate, for the appellant, realised the force of the argument and filed an application for amendment of the plaint changing the character of the suit from khas possession to one for joint possession. He contends that though a decree for ejectment cannot be given to the plaintiffs‑appellants, a relief in the shape of joint possession to the extent of the share of the surviving appel lant can be allowed. Question, therefore, that arises for considerations is whether the abatement of the appeal so far as the appellant No. 1 is concerned has made the whole appeal incompetent. Strictly speaking the suit being a suit for eject ment is not maintainable in the absence of any one of the plaintiffs and in that view of the matter the appeal has undoubtedly become incompetent. But that does not mean that the surviving plaintiffs cannot be given a relief in a different shape, namely, a decree for joint possession with the defend ants if they succeed in the appeal on merits. There are cases in. which the plaintiffs prayed for khas possession but the Court granted the plaintiff joint possession. So far as their prayer for joint possession with the defendants to the extent of the share of the surviving plaintiffs, I think it can be allowed. But the surviving plaintiffs‑appellants are to amend the plaint for khas possession to one for joint possession. If they amend the plaint certainly they can be given relief in the shape of joint possession and the absence of one of the appellants will not affect them. In certain circumstances amendment of the plaint can be allowed at any stage of the suit without any prejudice to the defence of the defendant and subject to the law of n limitation and subject to the payment of costs to the other) side. In this view of the matter I, for ends of justice instead of dismissing the suit as incompetent, allow the application of the learned Advocate for the surviving plaintiffs‑appellants to amend the plaint and thereby changing the suit for khas possession to one for joint possession. Such amendment will not prejudice the defendants in their defence and does not involve any question of limitation. Now coming to the merit of the appeal Mr. Pal contends that the findings arrived at by the lower appellate Court as to the benami nature of the kabala Exh. 1 is not supported by the evidence on record. As to the nature of the kabala Exh. B standing in the name of Enat Pramanik alone and the finding of the lower appellant Court thereon Mr. Pal did not challenge it nor I find any reason to disagree with the finding of the lower appellate Court as to the kabala Exh. B standing in the name of Enat Pramanik alone. The result is that the property stands to be the property of Enat Pramanik alone. Another point raised by Mr. Pal is that the kabala Exh. 1 executed by Sabejan on her own behalf and on behalf of her minor daughter Fatejan is void, so far as the share of the minor is concerned, under the Muhammadan Law, as held in the Privy Council case of Imambandi v. Mutasaddi, 45 I A 73, Mr. Bhattacherjee, the learned Advocate for the respondents, con ceded the point and I need not pursue the matter further. Only point that remains for consideration is whether the find ings arrived at by the lower appellate Court as to the benami nature of the kabala Exh. 1 is supported by any evidence on record. Mr. Paul led me through the evidence on record and I have got an opportunity to scrutinise the evidence relied on by the lower appellate Court. I am of opinion that the evidence on record does not support the finding of the lower appellate Court. The appellate Court relied much on the recital in the kabala Exh. 1 as to the payment of consideration money. According to him that recital raises a presumption that it is correct. In that view of the matter, he proceeded to discuss the evidence to see whether that presumption has been rebutted. It is undoubtedly true that, as to the payment of consideration of the kabala, the evidence either on the side of the plaintiffs or on the side of the defendants is most unsatisfactory and practically there is no direct evidence to prove the consider ation money. It is well established that in a case of benami transaction, one cannot rely much on the recital of the kabala but should look to the surrounding circumstances, namely, the to subsequent dealings of the parties with the property, custody of the document and motive of the benami. As to the motive, the trial Court has believed the plaintiffs' story that in order to shield the property from the clutches of the creditors the heirs of Enat Pramanik executed the kabala in the benami of their paternal aunt Fuljan. Appellate Court set aside this finding of the trial Court saying, " It does not stand to reason that to save one's property from the clutches of creditors, one would execute benami kabala regarding a very small property alone, leaving his bigger properties at the sweet mercy of those very creditors. The C. S. khatians Exhs. C to C2 go to prove that Eman had other properties as well." The lower appellate Court also stated" The positive case of the plaintiffs in the plaint was that Eman had become involved in debts and so he had recourse to this clandestine affair. If he alone was indebted, there is no reason why his sister and mother too would join him in executing the kabala regarding their shares as well". Exh. C shows that Eman Pramanik has got a korfa tenancy without any right of occupancy in plot No. 517 of khatian No. 69 of rnauza Dhaleswar, the area of which is only '39 decimals and that too consists of his home stead. Exh. C1 shows that the land of the khatian No. 34 of mauza Barolia is an occupancy holding and Eman has got no interest in it, but the appellate Court has said that he has got other properties in khatians Exhs. C to C

2. Exh. C2 shows that Eman, his sister and Gopal Pramanik jointly possessed an occu pancy tenancy in khatian No. 29 of mauza Dhaleswar, the area of which is 3'25 acres out of which is 1'3 patit land. It is the joint property of Gopal Pramanik, the plaintiff No. 1, Eman Pramanik and his sister Fatejan. Eman and his sister had jointly 8 annas share. The area of the land in their share including the patit land would be 1'62 acre. Exh. C3 is an exclusive property of Gopal Pramanik. Whereas the area of the land in the dis puted khatian No. 104 of mauza Dhaleswar which is the exclu sive property of Enat Pramanik inherited by his son Eman, his daughter Fatejen and widow Sabejan in occupancy raiyati right is 2'11 acres out of which only '23 decimals is patit and the re maining lands are agricultural lands and are the most valuable land of Enat Pramanik inherited by his heirs. It is not correct to say that it does not stand to reason to say that one would execute benami kabala regarding a very small property alone, leaving his bigger properties at the sweet mercy of the creditors. As regards the finding of the lower appellate Court that it was Eman alone who had become indebted and there is no reason why his mother and sister too would join him in execut ing in kabala regarding their share as well, it may be pointed out that the same learned Judge at page 20 of the paper‑book has found that the three executants, namely, Eman Pramanik, Fatejan and Sabejan were indebted to Jamir Haji for a sum in the neighbourhood of the consideration money of the kabala. In view of this finding on evidence in record it does not seem proper for the learned judge to say that the participation of the mother and sister of Eman Pramanik in executing the kabala savours of an inherent improbability and should not have been accepted as true by the trial Court. As regards the subsequent dealings with the property since the date of the kabala there is positive evidence, both docu mentary and oral that the property all along remained in pos session of Eman Pramanik and his sister and mother and on the death of Eman the property was in possession of the plaintiff No. 1 Gopal Pramanik and other heirs of Eman. Even the defence witnesses, D. Ws. 3 and 5, deposed to the effect that the property was all along in actual possession of the plaintiffs till they were dispossessed by defendant No. 1 in Agyahayan, 1349 B. S. Besides this oral evidence, there is documentary evidence that the property was in possession of the plaintiffs and their predecessor Eman. I have already stated that the kabala Exh. 1 was executed in the month of Magh, 1326 B. S. It is expected that Fuljan, the appellant's alleged transferee, would, pay the rent to the superior landlord in respect of this property, but from Exh. 2 (t) it appears that the rent was paid for the year 1328 B.S, by Eman to the landlord. The lower appellate Court erroneously held that Exhs, 2 (t) and 2 (d) could not at all relate to the jama in suit. His reason is that the share of grantor of the dakhila Exh. 2 (t) the jama is stated to be Rs. 1‑11‑19‑2‑3 krants. It is true that in the record of right the share of the grantor is stated to be annas 11 and odd whereas in the dakhila it is stated to be Rs. 1‑11‑19‑2‑3 krants but that is not the amount paid by Eman Pramanik in 1328 B.S. The amount paid by two instalments‑one of annas 12 for arrears of rent (. . . . . .), dated the 14th Falgun and another instalment of annas 12 for arrears of rent, dated the 25th Chaitra, 1328 B.S. The lower appellate Court opined that it was not unlikely that this dakhila referred to some other jamas. By other jamas he might have meant the jama recorded in C.S. khatian Exh. C

2. Because, the jama payable on account of khatian Exh. C is Rs. 2 only and it was payable to one Dabiruddin Pramanik and not to the landlord Bepin Behari and Rajmohan Pal as the dakhila Exh. 2 (t) stands and Exh. C 1 also cannot come in, because, it is an occupancy raiyati holding of Gopal alone. Exh. C 3 also cannot come in because of the fact that it is an occupancy holding of Gopal alone under the same set of landlords. As regards Exh. C 2 the share of what the appellate Court described as Pal Group is Rs. 1‑9‑5 pies not Rs. 1‑11‑19‑2‑3 and it is an ejmali holding in which Gopal has .8 annas share. It is not the case of any body that this jama was paid separately by Eman and Gopal so as to come up to annas 12 a year, including ceases in the share of Eman. Therefore, the dakhila Exh. 2 (t) cannot but refer to the lama of the holding in khatian No. 104 of mauza Dhaleswar including cess which together come near up to 12 annas payable to the Pal Group. So the lower appellate Court is not right in saying that this dakhila Exh. 2 (t) does not relate to the disputed jama. It is paid by Eman Pramanik. If the property was really sold to Fuljan, there is no reason why Eman would pay the rent. It is not even the case of the defendant that Fuljan paid rent through Eman Pramanik. Another piece of document is Exh. 2 (d) which unmistakably shows that the rent of this holding was paid by Eman for the year 1327 B.S. immediately after the year of the kabala Exh.

1. The lower appellate Court is of opinion that these dakhilas too do not relate to the disputed jama. The reason given is that the share of lama payable to the sherista of the landlord Sudhangshu Gobinda Choudhury is annas 11‑6 pies as per C.S. khatian Exh.

3. The learned judge is of opinion that only 4 annas has been paid to this co‑sharer landlord in full satis faction of his due for the year 1327 B.S. I regret that the learned judge said that this 4 annas was paid in full satis faction of the dues of the year 1327 B.S. in spite of the fact that the receipt was only for 4 annas out of the lama of annas 11‑6 pies and there is nothing in the dakhila to show that 4 annas was paid in full satisfaction of the lama of annas 11‑6 pies payable to the landlord. One conspicuous fact is that the learned judge omitted to find that since the date of the kabala in 1326 B.S. up to year 1348 B.S. the rent was all along paid by the plaintiffs either by Eman or by Gopal. Does it stand to reason that they will continue to pay rent of the land which they have transferred to Fuljan even during the life time of her husband Ka'sir Pramanik who died in 1330. B.S., i.e., 4 years after the date of the kabala ? Defence case is that defendant No. 1 was possessing the land till the death of Tonai in 1334 B.S. He has not paid rent of the holding at any time except in the year 1348 B.S.. Exh. A. In my opinion the payment of rent in 1348 B.S. is nothing but a creation of the ground for subse quent dispossession of the plaintiff in Agrahayan, 1349 B.S. Therefore, in my opinion, the findings arrived at by the lower appellate Court as to the payment of rent is not supported by any evidence on record. As regards the actual possession, it is admitted even by the defence witness D. W. 3 that Jhalu Pramanik and Kazt Subibuddin possessed some of the disputed plots in barga and delivered crops to the plaintiff No. 1 Golap Haji and defen dant No. 1 Idu Pramanik possessed the suit land from Agraha yan, 1349 B.S., which synchronises with the cause of action alleged by the plaintiffs in their plaint. D. W. 5 Basir Khan, uncle of the defendant No. 1, also stated that Jhalu Pramanik and Subibuddin were bargardars of the suit land and Golap Haji and Enat's son used to take barga crops from these bargardars. It is clear, therefore, from the evidence of these two D. Ws. besides the evidence of the plaintiffs that the plaintiffs were all along in possession of the suit land partly in khas and partly through their bargardars Jhalu Pramanik and Kazi Subibuddin and not defendant No. 1 Idu Pramanik, till the alleged date of dispossession. The lower appellate Court tried to get rid of the effect of this evidence even on the side of the defendants supporting the case of the plaintiffs' possession, by saying, that it was clearly admitted in evidence even on the plaintiffs' side that Gopal Pramanik used to look after the properties of his sister and used to pay rent on her behalf. He refers to the evidence of P. W. 3 Jhalu Pramanik. I have gone through the evidence of P. W. 3 Jhalu Pramanik. He has not said anywhere that Gopal used to look after this property in dispute on behalf of Fuljan. He has said that Gopal used to took after the affairs of his sister and in answers to a question put to him in cross‑examination lie stated that Gopal might have paid rent for her. The lower appellate Court also described this particular witness as a competent witness. I do not understand how a bargardar can be a compe tent witness as to the payment of rent of the land to the superior landlord. At page 21 of the paper‑book, the lower appellate Court observed. "It is significant that the bargardar Jhalu Pramanik does not say that he even paid a share of the barga crops to the plaintiffs Nos. 2 and 3." But D. W. 5 is definite in saying that Jhalu Pramanik and Subibuddin were bargardars of the suit land and Gopal Haji and Enat's son used to take barga crops from these bargardars and the learned judge has overlooked this positive evidence on the side of the defendants. As to possession, though the lower appellate Court, has not come to a definite finding that defendant No. 1 alas in possession, negatived the plaintiffs' case of possession. That finding with reference to the evidence on record is contrary to the evidence and as such cannot be supported. The appellate Court also relied on the entry in the khatian as to possession. Khatian Exh. 3 records the possession of Eman Pramanik and underneath recorded "Kharid Fuljan". The lower appellate Court read this entry as recording the posses sion of Fuljan but the trial Court read it as possession of Eman in spite of purchase of Fuljan, that is, possession remained with Eman Pranianik. If it records the possession of the trans feree Fuljan what is the use of recording the name of Eman. It certainly refers to the possession of Eman in spite of Fuljan's purchase. However, it is an inference and interpretation of the record of right which is a question of fact and not a question of law to be raised in second appeal, vide Privy Council decision reported in 38 C.W,N. 365 at page

373. Even if this reading of the lower appellate Court stands, it does not carry us far. 1t is quite natural that a man who resorted to benami transaction will get the name of the apparent transferee recorded in the record of right to make it effective for the purpose for which it was created. Next point is as to the custody of the kabala Exh. 1 and relevant papers such as the rent receipts Exh. 2 series. They all are coming from the custody of the plaintiffs: Defendant No. l though asserted that he was in possession since the death of Tonai in 1334 B.S. he has not been able to produce a single dakhila showing payment of rent except one for the year 1348 B.S. As I have stated already that was creating a ground for dispossessing the plaintiffs in the following year. The lower appellate Court explained it by saying that in view of the case of the defendant that Gopal used to look after the‑affairs of his sister, at is not unnatural and probable that the document would remain in the custody of plaintiff No. 1.‑ It is not a question of probability but it is the definite case of the defendant that Gopal took the kabala Exh. 1 from Fuljan for the purpose of mutating her name in the landlords' sherista. It is an admitted fact that the tenancy was, at the time when it was transferred, a non‑transferable occupancy holding. It is not the case of the defendant that the landlord ever agreed to mutate the name of the transferee Fuljan for the purpose of which Gopal took the title deeds. Not only that there is no evidence that Fuljan ever paid any money to Gopal to pay the rent on her behalf to the landlord. The custody of the rent receipts Exh. 2 series cannot be explained in any manner but by saying that the kabala Exh. 1 was a benami transaction and the original owner all along was in possession in payment of rent. In my view, therefore, the finding of benami arrived at by the lower appellate Court, is not supported by evidence in record. The result, therefore, is that this appeal is allowed and the judgments and decree of the lower Court are modified and the title of the plaintiffs Nos. 2 and 3 is declared to the extent of their share under the Muhammadan Law and they are to get joint possession with defendant No.

1. Their share can be ascertained easily with reference to the admitted genealogy, in a future partition suit. Other defendants did not claim any in terest nor they have got any interest in the suit land or pos session therein and they are impleaded as they joined hands with defendant No. 1 in dispossessing the plaintiff. In view of the fact that the learned Advocate on behalf of the respondent is not present at the time of the delivery of this judgment I make no order as to costs though the defendants can legitimately claim costs on account of the fact that the prayer for amendment of the plaint by appellants Nos. 2 and 3 is allowed at this stage. As regards the cost in the lower Courts I leave the parties to bear their own costs. A. H. Appeal allowed.