Govinda vs Kanhai

P.R. Sharma, J.—This is a plaintiff''s second appeal against the judgment and decree dated 20-11-1959 passed by the First Addl. District Judge Gwalior, whereby he confirmed the decree dated 19-12-1958 passed by the Civil Judge II Class Gwalior in Civil Suit No. 62 of 1957.

The suit out of which this appeal arises was based on the following allegations: The plaintiff Govinda and the defendant Kanhai are both sons of Dine (since deceased). Dine purchased from Balle s/o Mathuraprasad an anna share in khewat No. 21 situate at village Tatarpur along with ''khudkasht'' land appurtenent thereto. Dine also owned khewat No. 4 in which the plaintiff had duly received his one-half share. The plaintiff claimed a declaration that he is entitled to receive his one-half share in the lands in dispute which were appurtenent to khewat No. 21 and which stood in his father''s name. The plaintiff also claimed possession of his one-half share in the said lands.

The defendant in his written statement pleaded that Dine, his father, being blind the plaintiff had separated from him daring his life time. The defendant, however, continued to live with his father and the lands in dispute were purchased in the name of Dine out of the earnings of the defendant. The defendant claims to have been in possession of the lands in dispute ever since they were purchased. A number of other contentions which were raised by the defendant are no longer material for the decision of this appeal and do not, therefore, call for mention.

The trial Court held that khewat No. 21 along with its ''khudkasht'' was purchased in the name of Dine with the defendant''s money and that he had since that date of its purchase been in possession of those lands. It, therefore, held that the plaintiff was not entitled to claim a share in the suit lands. The trial Court, therefore, dismissed the plaintiff''s suit.

On appeal it was observed by the learned Addl. District Judge that the plaintiff had not alleged in the plaint that the property in suit was purchased out of joint family assets, nor was it alleged in the plaint that the lands in question were purchased out of the earnings of both parties to the suit. It, however, observed that the sale-deed stood in Dine''s name and unless the defendant succeeded in showing that the purchase money was provided by him, the plaintiff would be entitled to one-half share in the lands in suit. Relying on the evidence of D W. 2-Kunji and D W. 3 Sonamal the lower appellate Court held that the plaintiff lived separately from his brother since 35/40 years, that Kanhai was living with his father at the time of the purchase of the lands in suit. It, therefore, held that it was highly probable that the purchase money for the land in suit was provided by the defendant. It also took notice of the fact that the plaintiff had not pleaded in his plaint that the purchase money for the lands in suit was partly supplied by him but still he tried to make out in his evidence that he and the defendant both used to give their earnings to their father on the basis of which it was sought to be suggested that the money paid for the purchase of khewat No. 21 was derived from the monies provided to Dine by both of his sons.

In the first place it must be observed that the learned lower appellate Court Judge erred in holding that the plaintiff ought to have alleged in his plaint that he also used to give a part of his earnings to his father even after he had separated from him. The plaintiff is bound to make such averment in the plaint as give rise in him to a right to sue. It is not incumbent on the plaintiff to allege in the plaint even such facts as he might tender in evidence in order to rebut the evidence of the defendant regarding a fact the burden of proving which lies wholly upon him. The plaintiff''s case simply was that because the sale-deed for khewat No. 21 stood in his father''s name he was entitled to succeed to one-half share therein. The defendant came forward with the plea that the sale was Benami for him and that he had provided the purchase money. The burden of proving that a transaction is Benami lies on the person who asserts the Benami nature of the transaction. See AIR 1949 88 (Federal Court) wherein their Lordships of the Federal Court also laid down that such a plea "must be strictly made out" and that the decision of the Court cannot rest on mere suspicion but must rest on legal grounds and legal testimony. In the absence of evidence the apparant title must prevail.

The crucial test for Benami no doubt is the source from which the consideration came but when it is not possible to obtain evidence which conclusively establishes or rebuts the allegation as to the source the case must be dealt with on reasonable probability and legal inference arising from proved or admitted facts. (See AIR 1949 88 (Federal Court) )

As already stated by me above the plaintiff led evidence to show that he also used to give a part of his earnings to father. The lower appellate Court ought to have applied its mind to this evidence and given its finding as to its intrinsic worth. It could not discard it from consideration on the ground that the fact sought to be proved therby was not pleaded in the plaint. Since the fact as to the source of the consideration for the sale was an integral part exclusively of the case regarding the Benami nature of the transaction which was set up by the defendant there was no obligation on the plaintiff to allege in his plaint the facts which he would seek to establish in order to rebut the defendant''s plea.

The lower appellate Court fell into yet another error. Instead of deciding whether the evidence adduced by the defendant proved facts on the basis of which an inference could legally be drawn that the purchase money was provided by the defendant with the intention that the transaction of purchase shall be for his benefit, it compared the evidence of both parties and come to the conclusion that the defendant''s evidence was more reliable in nature than that of the plaintiff. Evidently in a case of this nature a decision cannot be reached on a mere preponderance of probabilities. The defendant must win or lose entirely on the strength of his own evidence. If the defendant''s evidence were to be found to prove circumstances which can legally from the basis of an inference that the purchase money was provided by the defendant with the intention mentioned above then the question would still remain to be decided whether the plaintiff''s evidence rebuts such an inference. Since the entire approach made by the lower appellate Court to the evidence in this case was erroneous in law I have no option but to allow this appeal.

I would, therefore, set aside the judgment and decree passed by the lower appellate Court and remand the case to it with a direction that it should rehear the appeal and dispose of it in accordance with law and in the light of the observations made by me above. Costs shall abide the result.