- (1.) TARUN Agarwala, J. This is a defendant's Second Appeal against the judgment of the lower appellate Court dated 18-11- 1985, whereby the appeal of the plaintiff was allowed and the suit was decreed. The brief facts are that the plaintiff filed a suit for a declaration that the house of the plaintiff was not liable for attachment and sold in realization of the alleged sales tax dues standing against defendant No. 4. The plaintiff alleged that she was the owner and in possession of the house in question and had purchased the said house vide a registered sale deed dated 2-6-66 executed by defendant No. 4 and others. The plaintiff alleged that the property was purchased from her own funds and that the defendant No. 4 had no concern and that he was never in possession of the property in question. The plaintiff alleged that the defendant Nos. 1, 2 and 3 initiated recovery proceedings against the defendant No. 4 on account of alleged sales tax dues and that the defendant Nos. 1, 2 and 3 had wrongly attached the disputed house of the plaintiff. The plaintiff contended that against the attachment order, the plaintiff had filed objections, which was rejected by the defendant No. 3. Accordingly, a notice under Section 80 C. P. C. was served upon the defendants and after the expiry of the period of the notice, the present suit was filed.
(2.) THE defendant Nos. 1, 2 and 3 contested the suit and denied the plaint allegations and contended that the house was owned by the defendant No. 4 and that the defendant No. 4 was in arrears of sale tax dues. THE defendants contended that the plaintiff was the daughter-in-law of defendant No. 4 and that the sale deed executed by the defendant No. 4. in favour of the plaintiff was only a benami transaction. THE property was transferred in order to frustrate the recovery of the sale tax dues. THE defendant further submitted that even after the execution of the sale deed, the defendant No. 4 continued to remain the owner and was also in possession and that the plaintiff and her husband lived with defendant No. 4 as members of a joint family. It was also contended that the husband of the plaintiff and defendant No. 4 were doing business as partners and that the plaintiff and defendant No. 4 were in collusion and submitted that the property in question was rightly attached by the defendants towards the recovery of the sales tax dues. The defendant No. 4 did not contest the suit and died during the pendency of the suit and his legal representatives were brought on record. The trial Court after framing the issues and after considering the evidence brought on record, dismissed the suit of the plaintiff holding that the defendant No. 4 was in possession of the house, even after the execution of the sale deed and that the plaintiff and her husband were residing with defendant No. 4 till the death of defendant No. 4. The trial Court further found that the defendant No. 4 was in arrears of sales tax dues and therefore, the defendant No. 4 transferred the property surreptitiously in favour of the plaintiff in order to defeat the claim of the tax authorities. The trial Court found that no positive evidence was led by the defendants to prove that the defendant No. 4 had paid the sale consideration. The trial Court, however, placed the burden upon the plaintiff in proving that she had paid the consideration and held that the plaintiff had not been able to prove that she had sufficient funds on her own and that she had paid the consideration. The trial Court held that since the plaintiff did not have any sufficient funds towards the sale consideration, the trial Court, therefore, presumed that the sale consideration must have been paid by the defendant No. 4 and therefore, dismissed the suit.
(3.) AGGRIEVED by the judgment of the trial Court, the plaintiff filed an appeal, which was allowed and the suit of the plaintiff was decreed. The appellate Court also held that the defendant No. 4 continued to remain in possession of the house and that the plaintiff and her husband used to live with the defendant No. 4 as a members of the Joint Family. The appellate Court further found that the defendant had a motive to execute the sale deed in favour of the plaintiff in order to defeat the recovery of the sale tax dues. The appellate Court, further, found that the presumption drawn by the trial Court with regard to the consideration being paid by the defendant No. 4 was based on surmises and conjectures. The appellate Court further held that the mere fact that the plaintiff did not have sufficient funds of her own could not lead to a presumption that the defendant No. 4 had in fact paid the consideration. The appellate Court, however, found that the plaintiff had enough funds of her own and that she was also the owner of other immovable properties. The appellate Court further found that another property in the joint names of the plaintiff and the defendant No. 4 was sold, in which, she had received her share of money and that the said money was utilized towards the sale consideration while purchasing the property in question. The appellate Court, on the basis of the evidence, held that the plaintiff had sufficient funds of her own and that she had purchased the property from her own funds. The appellate Court further found that the defendant Nos. 1, 2 and 3 had not led any evidence nor proved that the defendant No. 4 had paid the sale consideration. Accordingly the appellate Court allowed the appeal and decreed the suit of the plaintiff holding that the disputed house was not liable to be attached or sold in realization of the sales tax dues etc. against the defendant No. 4. Aggrieved by the judgment of the lower appellate Court, the defendant Nos. 1, 2 and 3 have now preferred the Second Appeal.;