Bhikari Behara vs Srimati Sitamoni Devi and Srimati Ram Bhawani Devi

Dawson Miller, C.J.—The suits out of which these two appeals arise were instituted by two ladies Sitamoni Davi and Earn Bhavani Devi against the defendant who is the appellant before us claiming a declaration of their title to a 1 anna 7 gandas share in the zemindari Patna Bhagabanpur Samil Mouza Syamsundarpur and for confirmation of their possession or, in the alternative, for the ejectment of the defendant if he should be found to be in possession.

It appears that the property which is in dispute and which constitutes a 1 anna 7 gandas share of the Zemindari originally belonged to one Birai Behera and after his death his widow Chemai Devi remained in possession as a Hindu widow. On the 1st August, 1918, Chemai Davi by twokabalas of that date purported to transfer the property in equal shares to the two plaintiffs in the present suits. At that time the defendant Bhikari Behera was apparently living with Chemai Davi as her son and was treated in that capacity. He is found by the decision of 6he District Judge on appeal to have been in possession of the property at all-events during Chemai Devi''s life and looking after it presumably on her account. After the date of the execution of the kabalas in August, 1918 it is found as a fact that the defendant still remained in possession of the property. It is further found as a fact that at no time since that date up to the date of the present suits in 1920 did the plaintiffs ever obtain possession of the property, and although there is no direct finding that the defendant was in possession after the death of Chemai Devi I think it must be presumed upon those findings that he in fact was the person who was in possession up to the data of the suits. When the plaintiffs gndeavoured to obtain mutation of names in the Land Registration Dapartrnaut after the transaction of 1918 their claim was opposed by the defendant who alleged that he was the adopted son of Chemai Devi and her late husband Birai Behera. The application for registration was accordingly dismissed and the present suits were shortly afterwards instituted as 1 have said in June, 1920.

The Munsif before whom the case came for trial was of opinion that the transfer made by Chemai Davi was a genuine transfer and conferred title upon the plaintiffs. He was further of opinion that the defendant had not made out his case that he was the adopted son of Chemai and her late husband and he accordingly entered judgmert for the plaintiffs and granted them the declaration which they claimed.

The case went on appeal to the District Judge who after reviewing the evidence ac considerable length came to the conclusion for reasons which it is not necessary to enter into as his conclusions are binding upon this Court that the transaction of 1918 upon which the title of the plaintiffs is based was a purely benami transaction and that the property was transferred into the names of the plaintiffs in order to protect the interests of Chemai Davi against one of the co-sharers who was an influential man and endeavouring to obtain the property from her possession. He arrived at the conclusion therefore that no interest ever passed to the plaintiffs by reason of that transaction except in so far as they became benamidars for Chemai Davi. Ha further found as a fact that the evidence of the plaintiffs as to their possession was quite inconclusive and unsatisfactory and that there was sufficient evidence for the defendant to show that the property had remained in possession of Chemai. On these findings the learned District Judge overruled the decision of the Munsif and refused to grant the declaration asked for. In my opinion he was perfectly right in so doing. It must be remembered that this was a suit asking for a declaration, and the very ground upon which the claim to a declaration was based was that the plaintiffs had acquired on their own behalf a title in the property from the late holder and that they had been in possession as owners ever since but that a cloud had been cast upon their title by the refusal of the Land Registration Department to enter their names in place of the late holder. If the plaintiffs should fail to satisfy the Court either that they had any valid title to the property or that they were in possession then it seems to me quite clear that no Court ought in such circumstances to grant a declaration such as that prayed.

The plaintiffs, however, were not satisfied with the decision of the learned District Judge and came on second appeal to this Court. The case was heard before Mr. Justice Boss who, with great respect to the learned Judge, took a view of the law which, in my opinion cannot be supported. He was bound by the findings of the lower Court that the conveyances or the alleged conveyances in favour of the plaintiffs were without consideration and mere benami transactions but he was much impressed by the fact that the defendant had failed at the trial to make out that he was in fact the adopted son of Chemai Davi. He considered accordingly that the defendant had really no locus standi and was not therefore entitled to question the nature of the transaction upon which the plaintiffs title was based. But in arriving at that conclusion the learned Judge seems to have assumed that there was in fact an alienation by the widow which was valid until it could be set aside It is quite true that an alienation by a Hindu widow is not void but merely voidable but, with great respect to the learned Judge, he seems to have lost sight of the fact that the transaction in the present case was not an alienation which transferred the property to the alienees but was merely a benami transaction whereby the property was placed in the names of the alienees not on their own behalf but on behalf of the widow who has since died and this fact having been proved at the trial I think that the learned Judge was bound to take notice of it with the result that he ought to have held upon the facts proved that the plaintiffs had no title whatever after the death of Chemai Davi whom alone they represented to sue for declaration of title. It may be that in certain cases a defendant has no locus standi to call in question the transaction alleged by a plaintiff but where a plaintiff is seeking a declaration from the Court, it seems to me that the Court ought to be satisfied that the plaintiff has an interest in the property in respect of which the declaration is claimed which is a valid and subsisting interest. In the present oases the plaintiffs have entirely failed to prove any such interest and even if the point had not been taken by the defendant or even if the defendant had not been entitled to take such a point the evidence is now before the Court and the Court was entitled to demand evidence in support of the plaintiffs'' case. That case having failed it seems to me that the Court cannot in the circumstances, and upon the facts proved grant the declaration prayed. In my opinion these appeals must be allowed, the decision of Mr. Justice Boss will be set aside and the, decree of the learned District Judge will be restored. The appellant is entitled to his costs here and in all the lower Courts.

Mullick, J.

I agree.