AUTO SALES Vs. SHUSHILA SINHA
LAWS(ALL)-1965-1-2
HIGH COURT OF ALLAHABAD
Decided on January 12,1965

AUTO SALES Appellant
VERSUS
SHUSHILA SINHA Respondents


Referred Judgements :-

SARDHARILAL V. AMBIKA PERSHAD [REFERRED TO]
PROTIVA SUNDARI CHOUDHURY V. RELIANCE BANK LTD. [REFERRED TO]
GANESH LAL SARAWAGI V. MAHABIR SAHU [REFERRED TO]
RAMKISHUN SINGH V. DAMODAR PROSAD [REFERRED TO]
PARTHESHWAR NARAIN SINGH V. RANGNATH [REFERRED TO]
SUNDER DEVI VS. JHABOO LAL [REFERRED TO]
TAMLUK LOAN OFFICE CO LTD VS. KEDAR NATH [REFERRED TO]
NALINKANT BHANUSHANKER DAVE VS. HIRALAL AMRATLAL PAREKH [REFERRED TO]
BUTTO KRISTO PAUL AND CO VS. HARENDRA NATH GHOSH [REFERRED TO]
BACHU LAL VS. RAM DIN [REFERRED TO]



Cited Judgements :-

KALYANIAMMAL VS. PUNJAB NATIONAL BANK [LAWS(MAD)-1991-3-6] [REFERRED TO]


JUDGEMENT

S.C. Manchanda, J. - (1.)THIS is a revision by the plaintiff against the order of the Civil Judge dated the 18th of September 1963, releasing the house from attachment under the provisions of Order 38 Rule 8 of the Civil Procedure Code.
(2.)THE plaintiff had filed a suit on the 19th of March 1963, for recovery of a sum of Rs. 69,000 against Mr. J. N. Sinha opposite party No. 2. On the same date an application under Order 38 Rule 5 of the C. P. C. was filed praying for attachment of the only house possessed by the said opposite party No. 2 in Tagore Town. THE house was attached and a notice issued. On the 5th of April 1953, Mrs. Sinha, the wife of the opposite party No. 2 filed an objection to the attachment on the ground that she was the owner of the said house in possession. THE reply of the plaintiff applicant was that she was only a benamidar for her husband. THE opposite parties did not go into the witness box. Evidence was given only by the brother of Mr. Sinha to order to prove the source of the purchase price for the impugned and which was purchased on the 2nd Septem-ber 1960. THE trial Court was not inclined to believe this evidence and observed:-- "I agree with him that had this been a suit there was a strong presumption of these transactions being Benami." But he went on to hold that the proceedings under Order 38 Bule 5 being summary proceedings the question of benami could not be gone into in these proceedings. A finding was given that as the title deeds were in favour of Mrs. Sinha, she had established that she had some interest in the house at the time of attachment as required by Order 21 Rule 59 C. P. C. On the question of possession it was found that the house in dispute was occupied both by the objector and her husband and that as the title deeds were in favour of the claimant it will be deemed that it is the claimant who is in possession unless it is held that the defendant opposite party was the real owner and the objector was only a Benamidar. He, accordingly, held that the objector Mrs. Sinha had proved her prima facie title and possession and the house was, therefore, released from attachment. Hence this revision.
It has been strenuously contended on behalf of the plaintiff-applicant that the approach of the Civil Judge was erroneous. The main question to be determined was of possession and no olear finding on that question having been given the secondary question as to whether the objector had some interest in the property attached ought not to have been gone into, and, if it could have been gone into the trial Court was bound to go into the question of Benami as then only could the real interest and not the apparent or ostensible interest of the objector be established.

It was further contended, relying upon the Juris Secundum, Volume 41 at page 497 that "when the husband and wife lived together, the house in which they lived is in the legal possession of the husband as the head of the family." From this it was argued that as it had been found by the trial Court that the husband and wife were jointly living in a part of this house and the rest was in the occupation of tenants the legal possession should have been presumed to be that of the husband and thereupon it became incumbent upon Mrs. Sinha, the claimant to establish that she had some interest in this property.

(3.)RELIANCE was also placed on a decision of the Judicial Committee in Gopeekrist Gosain v. Gunga Persaud Gosain, (1854) 6 Moo Ind App 33 (PC), for the proposition that the practice of purchasing property benami in the name of a member of the family is very widely prevalent in India and that once it is established that the transaction is benami the circumstance of the receipt being in the name of the benami-dar proved nothing. They would be only in accordance with benami usage.
There is really no quarrel with these propositions but the real question which arises in this case is whether In summary proceedings the question of benami must necessarily be enquired into? The scope of enquiry under Order 38 Rule 5 is the same as under Order 21 Rule 59 of the Code. What the claimant objector is required to establish is that she had some Interest or was in possession of the property on the date of the attachment. If any one of these conditions is established then the burden would shift to the decree holder to prove that the objector was not the owner or that it was being held in trust for the judgment debtor. The Legislature has used the words "some interest" in Order 21 Rule 59 and this can only mean such interest as would make the possession of the judgment debtor, possession not on his own account but on account of or In trust for the claimant, It has been repeatedly held that proceedings under Order 21 Rule 59 are summary proceedings as distinct from a suit under Rule 63. In these proceedings only a prima facie case requires to be made out by the claimant or objector. Generally speaking an enquiry as to title of the claimant or objector would be outside the scope of Order XXI Rule 59.

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