Bisheswar Dayal Sahu and Others vs Bansropan Sahu and Others

The facts of this case have been stated at length in the judgment of the lower Court. They are briefly that the family of the plaintiffs settled in 1S63 two villages Ichri and Ayar upon a widow of their family Chamela Kuer as maintenance for her lifetime, with the proviso that on her death the property should revert to the family together with all accretions made thereto by her. One of these properties, Ichri, was brought to sale for arrears of revenue and ostensibly purchased by Kolaishar Pande defendant No. Sand subsequently transferred by him to Bansropan Sahu, the daughter''s grandson of Chamela''s co-widow. The other property, Ayar, had been mortgaged and in execution of the mortgage decree purchased by Togan Sahu in 1904. Chamela had instituted a suit against Togan Sahu to set aside the decree and sale as inoperative against her. That suit was withdrawn and simultaneously with the withdrawal of the suit the property was conveyed by Togan Sahu to the same Bansropan. Upon the death of Chamela Bansropan claimed to remain in possession of these properties. The plaintiffs, therefore, brought this suit for a declaration, firstly, that the purchase by Kolaishar Pande was a fraudulent transaction; that the money with which the property was purchased came from the pocket of Chamela Kuer and that the subsequent ostensible transfer to Bansropan was without consideration; also that the purchase by Togan Sahu was with the money of Chamela and that Bansropan was only her benamidar; and on these declarations to recover possession of the properties.

The defendants resisted the suit on the ground that it was res judicata that Kolaishar Pande was not a benamdar and that the purchase by Bansropan of the interest of Togan Sahu was a genuine transaction.

The lower Court found that the suit with regard to the village Ichri was barred by the rule of res judicata, but that it was clear that the village Ayar had been purchased by Togan Sahu with the widow''s money and that, therefore, it must revert to the family on her death.

Against the decree made upon these findings the plaintiffs appeal and the defendants have filed a cross-appeal.

With regard to the plaintiffs'' appeal it is clear that the question whether Kolaishar was a benamdar has been already settled in litigation to which all the plaintiffs in the present suit were either parties or representatives-in-interest of parties. It is contended in this respect that Chuni Sahu who is the father of one set of plaintiffs was not a plaintiff in the former suit and that, therefore, the decision is not binding upon that branch of the family. Chuni Sahu was pro forma defendant in that suit and had he wished to contest the position of Kolaishar with regard to this property, it was his clear duty to apply to be transferred from the category of defendants to that of plaintiffs and within the meaning of Explanation IV of Section 11 he might have made the allegation that Kolaishar was not the real purchaser of the property a ground of attack: having failed to do so his representatives cannot be heard now to raise the same claim.

It is clearly an idle proposition that where A brings a suit against B, and C and D being equally interested with A in the property have been made defendants but have refused to join themselves as plaintiffs in the suit, 0 may, upon the failure of A, come forward and harass B upon the same cause of action and on his failure D in his turn may also come forward. We have no doubt that Explanation IV to Section 11 was designed to meet a plea of this description. It is res judicata that the purchase of Kolaishar Pande was a bona fide purchase and that property in the estate passed to him by virtue of the revenue sale. Seeing that failure was unavoidable upon this point, Mr. Gangadhar Das suggests that the real fact was that Kolaishar purchased the property in good faith but that thereafter Musammat Chameli Kuer re-purchased the property from him with her own money in the name of Bansropan. He asks to be allowed to amend his plaint in this Court and to fight the case upon this issue in the lower Court once more.

The plaintiffs were undoubtedly badly advised in putting up a plea which had already been decided against them, but having elected that ground of attack in the lower Court they cannot be allowed in this Court to choose a fresh ground of attack. Upon their pleadings it is idle for them to say in the same breath that no money was paid to Kolaishar under the bond by which the transfer was made in the name of Bansropan and that the money that was paid to Kolaishar came from the pocket of the lady. The suit with regard to village Ichri was rightly dismissed.

The position with regard to village Ayar has been fully set forth in the judgment of the learned Subordinate Judge. The defendant Bansropan was challenged to show that he was the real purchaser of this village. It was shown that he was living at the time of the purchase with his great-grandmother. It was suggested that he had no means; that he was a mere boy without any occupation. The consideration passed was Rs. 425. There had been no ostensible change in the ownership of the property since the purchase. Chameli Kuer had apparently been in possession up to the time of her death. All these considerations threw upon Barisropan the burden of proof of showing that he obtained the money either from his own pocket or from his father''s pocket. He gave no evidence of any description of the source from which the money was drawn. In these circumstances it was rightly found that Bansropan was an ostensible purchaser only and" that Chameli Kuer was the real purchaser. The suit with regard to village Ayar was rightly decreed. The appeal and the cross-appeal are dismissed with costs.