Modi, J. - (1.) THIS is a civil regular second appeal by the defendant the Urban Co-operative Bank: Ajmer-Merwara Limited, Ajmer, through its Secretary, against the judgment and decree of the District Judge, Ajmer, dated the 16th May, 1961, affirming the judgment and decree of the Civil Judge, Ajmer, in a suit for declaration.
(2.) THE material facts leading up to this appeal may shortly be stated as follows. THE defendant appellant is a co-operative Bank registered under the Cooperative Societies Act and has its office at Ajmer. Defendants respondents Nana Kishore and Ramesh Chander who are brothers borrowed a sum of Rs. 7500/- from the said bank on the 14th October, 1947, on the security of two immovable properties with one of which we are concerned in the present case and the particulars of which are mentioned in paragraph one of the plaint. THE plaintiff is Mst. Gokal Devi widow of one Jagdish Prasad. THE defendant appellant having obtained an award against the mortgagors aforesaid which has the force of a decree under the law, sought to execute it by sale of the suit property. THE case of the plaintiff is that this property, although it was purchased by her husband Jagdish Prasad in his name and that of Nandkishore defendant jointly belonged exclusively to her husband and that the! name of Nandkishore in the sale-deed dated the 5th September, 1945 Ex. A-2, obtained in that connection from one Lala who was admittedly the owner thereof at the relevant time, was merely Benami and that her husband had been in exclusive possession of the said house ever since the purchase and that after his death, in 1951, she was the sole owner in possession of it. In support of her case, the plaintiff particularly relied on the fact that the defendant Nandkishore had not contributed any money towards the purchase of the suit property and produced a document Ex. 3 dated the 22nd September, 1945 which was alleged to have been executed by the said Nandkishore in favour of the plaintiff's husband in which he had stated that in the sale-deed dated the 5th September, 1945, as respects the property purchased from Lala, Jagdish Prasad had of his own accord obtained the sale-deed in his (Nandkishore's) name, that he had paid no consideration whatsoever for the sale in question and that he had no desire to have anything to do with that property and that Jagdish Prasad alone was the owner of it and the same was already in his exclusive possession. As the defendant appellant was executing its decree by having the suit property auctioned, the plaintiff brought the present suit for a declaration that the defendants had no right, title or interest in the property in question and that the plaintiff was the sole owner of it, and, therefore, it was not liable to be sold in execution of the defendant appellant's decree against the other defendants. This suit was contested by the defendant appellant only. Its defence, put briefly, was that the property in suit belonged to defendants Nos. 2 and 3 Nandkishore and Ramesh Chander by virtue of a sale-deed in their favour (which was never produced and which was not a fact) and that the plaintiff had no right whatsoever in the property, and, consequently, the said defendants were perfectly within their rights in having mortgaged the same with this defendant and it was entitled to bring it to sale in execution of its decree against the, other defendants. As regards the writing Ex. 3 which was alleged to have been executed by Nandkishore in favour of Jagdish Prasad it was contended that it was not admissible in evidence as it was unregistered. This document was also not admitted by the defendant. Certain other pleas were also raised by this defendant but it is unnecessary to set them out in any detail because the issues relating to them were not pressed in the trial court nor in the court below. The trial court found that the property in question was purchased by Jagdish Prasad, husband of the plaintiff himself, that the entire consideration for the purchase had proceeded from him, that the document Ex. 3 was proved to have been executed by Nandkishore in favour of Jagdish Prasad, and it was perfectly admissible in evidence, and on these findings it came to the conclusion that the name of Nandkishore had been entered benami in the sale-deed and that court decreed the plaintiff's suit and granted a declaration that the defendants Nos. 2 to 4 had no right, title or interest in the property in suit and that, the plaintiff was the sole owner there of. The present defendant went up in appeal against that judgment and decree to the District Judge, Ajmer, but the appeal was dismissed. This defendant has, therefore, come up in second appeal to this Court. The principal question which arises for determination in this appeal in the circumstances mentioned above is whether the finding of the courts below that the property in suit had been purchased by Jagdish Prasad husband of the plaintiff himself and that the name of Nandkishore therein had been inserted benami is not well-founded. As I look at this question, it is one of fact and does not admit of any challenge in a second appeal. See Misri Lal Vs. Surji (1) Faced with this position, learned counsel for the defendant appellant strenuously raised a number of points with which I propose to deal presently, and the sum total of his submission is that the conclusion arrived at by the court below was either based on inadmissible evidence or was opposed to certain principles of law pertaining to benami transactions, and according to learned counsel, these errors vitiated the judgment and decree of the learned District Judge under appeal. The first point raised by learned counsel was that the evidence produced by the plaintiff to show that defendant Nandkishore in so far as the sale-deed Ex. A-2 dated the 5th September, 1945, had contained his name was only a benamidar for the plaintiff's husband Jagdish Prasad was inadmissible in evidence by virtue of the provisions of sec. 92 of the Evidence Act, and, therefore, the courts below had fallen into a grave error of law in taking such evidence into consideration in coming to the conclusion to which they did. In support of his submission, learned counsel relied on Ma Aye Tin Vs. Daw Thant (2), and Chatar Singh Vs. Ganpatlal (3 ). The contention of learned counsel as based on sec. 92 of the Evidence Act is that the factum of the sale by Lala in favour of Jagdish Prasad and Nandkishore was one of the terms of that contract which had been reduced to the form of a document and was otherwise also required by law to be reduced to such form, and, therefore, the evidence that the sale had taken place really in favour of Jagdish Prasad alone if allowed would be something in the nature of contradicting varying or subtracting from the terms of the contract, and, therefore, such evidence, would be clearly in contravention of the provisions contained in sec. 92 of the Evidence Act. This argument though attractive has no substance in it. For if sec. 92 is carefully and closely read, all that sec. 92 says is that evidence contradicting, varying, adding to or subtracting from the terms of any contract where it is required by law to be reduced to the form of a document cannot be admitted, as between the parties to any such instrument or their representatives in interest, (the italic is mine ). But where such evidence is intended to be led not between the opposing parties to the contract but between the parties on one and the same side thereto, then sec. 92 does not seem to stand in the way of the production or admissibility of such evidence. I feel considerably fortified in this conclusion by the view taken in Mul Chand Vs. Madho Ram (4) and Patham Mal Vs. Syed Kalai Ravuthar (5 ). In the first of these two cases, the facts were briefly these. M sold certain premises to the plaintiff and the defendant jointly by a sale-deed. The plaintiff then sued the defendant for ejectment from the premises on the allegation that he alone was the real purchaser and that the defendant was only nominally associated with him in the deal. An objection was raised that sec. 92 precluded M from proving this fact which was contrary to the terms of the sale-deed. It was held that the words "between the parties to any such instrument" occurring in sec. 92 of the Evidence Act, properly speaking, refer to the persons who on the one side and the other came together to make the contract and do not apply to questions raised between the parties on the one side only of a deed regarding their relations to each other under the contraband, therefore, these words do not and would not preclude one of two persons in whose favour a deed of sale purported to have been executed from proving by oral evidence in a suit by the one against the other, that the defendant was not a real but a nominal party only to the purchase and that the plaintiff was solely entitled to the property to which it related. So far as I can see, this case affords a very near parallel to the present case. The same principle was upheld in Patham Mal Vs. Syed Kalai Ravuthar (Supra ). I am in respectful agreement with this principle. As for Ma Aye Tin Vs. Daw Thant (Supra) is concerned, it certainly lays down a proposition which supports the submission of learned counsel for the defendant appellant, inasmuch as it was held there that where property was purchased in the joint names of A and B, evidence by A showing that he had paid the whole consideration for the purchase and that B's name was mentioned in the deed as a joint purchaser was clearly inadmissible under sec. 92 of the Evidence Act. With great respect, this case does not contain any discussion of the language of sec. 92, and it seems to me to have been more or less assumed that such evidence would be inadmissible. I am, therefore, unable to accept this case any satisfactory authority for the proposition contended for by the learned counsel. So far as Chattar Singh Vs. Ganpatlal (Supra) relied on by learned counsel goes, it is clearly distinguishable because the contest there was between the opposing parties to the contract and, therefore, the view taken in that case that it was not open to the parties to vary the terms of the original agreement by a subsequent oral contract was perfectly correct. The principle of that case, however, cannot apply to a case like the present where the question of the admissibility of an oral agreement interfering with the terms of the written contract arises not between the opposing parties to the contract but between parties inter se on the same side. In this view of the law, I hold that the trial court was correct in allowing the impugned evidence to be produced on behalf of the plaintiff and that there can no valid objection to that court or the court of first appeal taking such evidence into consideration in adjudicating upon the rights of the parties in the present suit. This objection consequently fails. Secondly it was urged by learned counsel that the courts below had fallen into error in holding that the transaction evidenced by the sale-deed Ex. A-2 was partly genuine and partly benami inasmuch as according to him the correct position in law is that in a suit for declaration that a certain transaction was benami it was not open to a party to contend or for a court to hold that a part of it was genuine and the other part was benami. Reliance was placed in support of this submission on Appa Dhond Vs. Babaji (6) and Bans Narain Vs. Chandrani Kuer (7 ). These cases no doubt lay down the principle on which learned counsel bases his submission; but, with very great respect, I find it extremely difficult for me to accept that that is a correct statement of law. For one type of benami transactions, as I understand them, undoubtedly arises where two persons combine to jointly purchase a property and the one of them is the real purchaser and the other is a nominal one. If the proposition contended for by learned counsel is accepted as correct, then in such cases, the argument can never be advanced before the courts nor can the courts give effect to it that the sale was really made by one of the two persons and the name of the other therein was put in 'farzi' or that he was just a nominee of the real purchaser; notwithstanding the fact that that should be the correct factual position. I regret, I see nothing in the nature of a benami transaction which should really inhibit the raising or proving of a position like that. Having regard to the view which I have felt persuaded to accept, therefore, I am unable to hold that there would be anything wrong where the courts may hold, in a case like the present, that of the two purchasers of a certain property, the one was the real purchaser and the other was only a nominal one. I should also like to point out that when the courts come to a conclusion like that, they do something in the nature of holding that a transaction is partly genuine and partly unreal. For, the attack in such a case is not as regards the genuineness or otherwise of a transaction but is only with reference to some of the parties thereto. Again even the Bombay case (Appa Dhond Vs. Babaji, Supra) on which one of the Judges in the Allahabad case (Bans Narain Vs. Chandrani Kuer, Supra) based his reliance, takes note of the situation that where there do arise strong reasons to compel a court to come to a conclusion that a part of the transaction was genuine and part of it unreal, it could come to such a conclusion, though according to the learned Judges in this case, the courts should ordinarily not give effect to such a plea. Be that as it may, for the reasons I have mentioned above, I see no force in this contention either and I hereby reject it. Thirdly it was contended that the defendant appellant was a bonafide transferee for value from Nandkishore who was the ostensible owner, and, therefore, the former was entitled to execute its decree with respect to the property in suit of which the plaintiff claims to be the real owner. Learned counsel placed his reliance in this connection on Bindubashinee Debi Vs. Kashinath (8 ). This plea seems to be based on sec. 41 of the Transfer of Property Act which reads as follows: - ''where, with the consent, express or implied of the persons interested in immovable property, a person is the ostensibly owner of such property and transfers the same for consideration, the said transfer not be voidable on the ground that the transferor was not authorised to make it : pro vided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith. " Before the defendant appellant could claim the advantage of the provisions of sec. 41 or the principle underlying it, I have no hesitation in saying that he should have raised this plea in his written statement. This he did not do. The question raised by learned counsel is quite obviously one of mixed law and fact. Assuming that Nandkishore was an ostensible owner of the property in question and that he had made a mortgage with respect to it for consideration in favour of the defendant appellant, the latter must further prove (1) that he had acted in good faith and (2) that he had taken reasonable care to ascertain that the transferor had power to make the transfer. It is impossible to give any findings on these two questions of fact without any evidence having been led on them by either of the parties and without such a case having been raised at the trial. I should also like to add that the fact that the courts have found in the present case that Nandkishore was a benamidar for the real purchaser Jagdish Prasad does not substantially alter the legal position which I have set out above. Fourthly, it was contended by learned counsel that the document Ex. 3 dated the 22nd September, 1945, which was executed by the defendant Nandkishore in favour of Jagdish Prasad and wherein the former had admitted that no consideration for the purchase of the suit property made by him and Jagdish Prasad had emanated from him and that the latter was, the sole owner of the property was not admissible in evidence against the defendant appellant inasmuch as Nandkishore was himself alive and had not been produced by the plaintiff to prove this document. A look at this document would show that it was signed by Nandkishore as its executant and it was attested by Madangopal and Lala, the latter being the vendor. The plaintiff produced both these witnesses, but she made no attempt to produce Nandkishore although the latter was and is admittedly alive. The contention of learned counsel is that until Nandkishore was himself produced to prove the execution of this document, it should not have been admitted against the defendant appellant. With al| respect to learned counsel, I am altogether unable to accept this submission as [correct. A document like this is relevant seems to me to be beyond dispute. Then it must be required to be proved before it could be considered as evidence in the case. The plaintiff proved it by producing both Madangopal and Lala. She did not produce Nandkishore, the executant, in support of her version on this aspect of the case. The question, therefore, is whether the failure of the plaintiff to produce Nandkishore should disentitle her in law to a consideration of this document in a proper adjudication of her case. My answer to this question is in the negative. For one thing, Nandkishore was a defendant in this very case and for another it could not be said that the interests of Nandkishore and the plaintiff were identical or that they had colluded with each other. There is neither any suggestion nor proof to that effect. It was Nandkishore who had inter-meddled with the suit property contrary to her interest. To compel the plaintiff to produce Nandkishore in her evidence in these circumstances would neither be just nor desirable and therefore no presumption can possibly be raised against the plaintiff to the effect that if Nandkishore had been produced by her, he would not have supported per case on this point. The defendant appellant could as well have produced Nand Kishore if it was visualised that his evidence would have supported its case. In these circumstances, the contention of learned counsel that the document Ex. 3. is inadmissible in evidence cannot be accepted for a moment; and from the analysis which I have made above, I am also definitely of the opinion that no adverse presumption can be raised against the plaintiff for having failed to produce him. The only other point raised by learned counsel was that the courts below had fallen into error in holding that the document Ex. A-l was not proved to relate to the property in suit. Now, this document is said to have been executed by Jagdish Prasad in favour of Nandkishore on the 20th September, 1947, in which the former agreed to sell his part of certain land at Makarwali Road Ajmer (the boundaries of this land have not been mentioned therein) for Rs. 5000/- and in connection with that he has further stated that this land had been purchased jointly from Lala Teli for Rs. 2100/- on the 5th September, 1945, and that he agreed to relinquish all his proprietary rights over the land in question on receipt of the full value of Rs. 5000/-The finding of the courts below is that as it was mentioned in this writing that the land referred to therein had been purchased from Lala Teli for Rs. 2100/- and the land in suit had admittedly been purchased for Rs. 2500/- from him, it will not be right to accept the land referred to in this document was the same as the land in suit. The contention of learned counsel is that this conclusion of the courts below was wrong because the vendor in either case was Lala and the sale in question had been made on the 5th September, 1945, and the vendees were Nandkishore and the plaintiff's husband Jagdish Prasad and further the property in either case was stated to be situate at Makarwali Road Ajmer. Unfortunately for the defendant appellant the vendor Lala who was produced by the plaintiff as witness on her side was not laced with this document; for if he was, it might have been possible to determine conclusively whether this document related to the suit property or to any other, and it was this factor which seems to have prevailed with the courts below and in particular the learned District Judge in coming to the conclusion to which he did. This conclusion, for aught I know, is right or it may even be wrong; but the matter lies purely in the domain of fact, and it is not for this Court sitting in second appeal to interfere with it. This point also fails and is hereby repelled. When all the legal objections raised by learned counsel turn out to be fruitless, I can see no valid reason for interfering with the concurrent judgments and decrees of the two courts below which revolve around questions of fact as I took the opportunity of indicating at the very threshold of this judgment.
(3.) IN the result, this appeal fails and is hereby dismissed with costs. Leave to appeal is refused. .;