- (1.) THIS is a second appeal by the plaintiff Chiranjilal from the appellate judgment and decree of the District Judge, Ajmer, dated 10th October, 1966 by which the learned Judge confirmed the judgment and decree by the trial court namely, Civil Judge, Ajmer, dismissing the plaintiff's suit for partition of the house situated in the town of Ajmer and fully described in para No. 1 of the plaint.
(2.) THE following pedigree table may be helpful in understanding the facts of the case: - Mohanlal Poonam Chand Ram Dev (Died in February 1951) Jawaharlal alias Joharilal (Adopted son) Smt. Narbada married to (Defendant No. 1) Noratmal Chiranjilal (plaintiff) Nathulal (Defendant No. 2) The house in question was acquired by Mohanlal and was inherited by Poonamchand after Mohanlal's death. Poonamchand had no son. After the death of Poonamchand a dispute arose between Chiranjilal and Nathulal on the one hand and one Jawaharlal alias Joharilal on the other as to the ownership of the house in question. Joharilal alleged himself to be the adopted son of Poonamchand and consequently Noratmal as guardian of his minor sons namely, Chiranjilal and Nathulal, filed a suit against Joharilal for declaration that there was no valid adoption of Joharilal by Poonamchand's widow Mst. Chandra and that the plaintiffs were entitled to get possession of the properties belonging to poonamchand including the suit property. This was registered as suit No. 494 of 1951. The plaintiff's case is that while the suit was pending, there was a compromise between the parties out of court and it was settled that Joharilal may be recognised as the adopted son of Poonamchand and the rights of minors Chiranjilal and Nathulal in Poonamchand's property may be surrendered in lieu of payment of Rs. 3,500/- by Joharilal. In pursuance of this settlement, which was, however, oral, Joharilal executed a sale deed of the house in question in favour of Noratmal for Rs. 4,000/, out of which Rs. 500/- were paid by Noratmal in cash and Rs. 3,500/-which were agreed to be paid to the minors in lieu of relinquishment of their rights in the property were adjusted towards the sale price. A copy of this sale deed has been placed on record and marked Exhibit-6. Since no written compromise was filed in the court, the suit proceeded and resulted in a decree in the plaintiff's favour on January 22, 1957. Exhibit-2 is the certified copy of the judgment dated January 22, 1957 by which it was declared that the adoption of Joharilal to Poonamchand by Mst. Chandra was null and void. A decree for possession of the suit property was also granted in favour of the plaintiff. Exhibit-3 is the copy of the decree-sheet. At this stage it may be observed that a little before the suit was decreed, Chiranjilal became major and he was substituted as guardian of his brother Nathulal in place of Noratmal. The decree-holders, Chiranjilal and Nathulal, thereafter filed an execution application which was registered as Execution case No. 228 of 1957. In the course of execution the parties filed a compromise on April 15, 1958. A copy of the Compromise petition has been placed on record and marked Exhibit-4. It was mentioned in the compromise petition that the plaintiffs had received a sum of Rs. 3,500/- from Joharilal adopted son of Poonamchand in lieu of their claim in the suit and Joharilal had executed a sale deed in respect of the house in question on May 7, 1956. It was further mentioned that the plaintiffs had confirmed the settlement. The executing court granted leave for compromise and dismissed the execution petition by its order dated November 27, 1958 in full satisfaction. Copy of the order of the executing court is Exhibit-5. On 28-4-1960 Noratmal sold the suit property for Rs. 7,500/- to the defendant No. 3 Heeralal. A copy of this sale deed has also been placed on record and marked Exhibit-7. After about three years Chiraujilal gave a notice through his counsel to Noratmal and the minor Nathulal under the guardianship of Noratmal that he would get the house partitioned and his share separated and instituted the present suit in the court of Civil Judge, Ajmer, on April 27, 1963 for partition of the suit property. It was alleged that the sale deed dated May 7, 1956 (Exhibit-6) executed by Joharilal in favour of Noratmal was for the benefit of the plaintiff Chiranjilal and his minor brother Nathulal. The suit was resisted by all the defendants namely, Noratmal, Nathulal, minor represented by his guardian Noratmal and the vendee Hiralal. After recording the evidence produced by the parties, the learned Civil Judge, as already stated above, dismissed the plaintiff's suit and the learned District Judge, Ajmer, also upheld the trial court's judgment and decree. Hence this appeal. The first point for consideration is this case is whether Noratmal was only an ostensible owner or in other words a 'benamidar' and the real owners were Chiranji Lal and Nathulal and if this point is decided in favour of the plaintiff, the next question would be whether the transferee Hiralal had acted in good faith in purchasing the property from Noratmal after taking reasonable care to ascertain that the transferor had the power to make the transfer. In other words, whether the transfer in favour of Hiralal is protected by virtue of sec. 41 of the Transfer of property Act. Learned counsel for the appellant has argued in the first instance that Chiranjilal was a minor on May 7, 1956 when the sale deed, Exhibit-6, was executed by Joharilal in favour of Noratmal. In this connection he has relied upon the verification in the plaint Exhibit-1 dated December 5, 1955, which runs as under: - "i, Noratmal the guardian of Chiranjilal and Nathulal of Ajmer do hereby verify. . . . . . . . . prayer. Sd/ - Noratmal. " He has also relied upon the fact that Chiranjilal was made guardian of Nathulal in place of Noratmal on January 15, 1957 and not earlier. It is contended that the fact that Noratmal made the settlement on behalf of Chiranjilal and Nathulal on May 7, 1956 goes to show that both of them were minors. Lastly it is contended that the fact that the executing court granted leave for compromise on November 27, 1958 goes to show that till that date Chiranjilal had not become major. I have considered the arguments advanced by the learned counsel for the appellant and I am of the opinion that they are devoid of substance. In the first place there is a clear and unequivocal statement of Noratmal, DW/1, father of Chiranjilal that Chiranjilal was born on March 23, 1936. No cross examination has been directed worth the name on the point in the course of statement of Noratmal. Chiranjilal himself has stated that he cannot say as to when he became major. Besides that, the point seems to have been given up by the appellant in the lower appellate court as would appear from the following observation by the learned District Judge: "chiranjilal thus became major on 27-3-1954, which has not been challenged in this court on his behalf. " It further appears that no such ground has been taken in the memo of appeal filed in this Court. I, therefore, hold in agreement with the learned District Judge that Chiranjilal had attained majority on March 27, 1954 and he was not a minor when the sale deed Exhibit-6 was executed by Joharilal.
(3.) LEARNED counsel then contended that even if it is found that Chiranjilal was major at the time when the sale deed Exhibit-6 was executed then also there is good evidence on the record to lead to the conclusion that Noratmal was mentioned as a vendee in the sale-deed Exhibit-6 only as a 'benamidar' or an ostensible owner and not the real owner. In this connection he has urged that a very big portion of the consideration of sale came from the minors and that Noratmal being the father of Chiranjilal and Nathulal was in a fiduciary position. In support of his contention learned counsel has relied upon Mt. Bilas Kunwar vs. Desraj Ranjit Singh (l), Srimathi Nrityamoni Dasi vs. Lakahu Chandra Sen (2) and Kumar Harish Chandra Singh Deo vs. Banshidhar Mohanty (3 ). On the other hand, lasrned counsel for the respondents has argued that the plaintiff had not based his case on the ground that the transaction of sale (exhibit 6) was Benami and the real owners were Chiranjilal and Nathulal, nor has succeeded in proving so. In Srimathi Nrityamoni Dassi's case (2), their Lordships were pleased to observe that they had repeatedly laid down that in case where it was asserted that an assignment in the name of one person is in reality for the benefit of another, the real test is the source whence the consideration came, In Mt. Bilas Kunwer's case (l) where a purchase was made in the name of a mistress, but the consideration came from the person who had kept the mistress and in fact that person's wife stayed in the house but the mistress never lived in the bungalow it was held that the purchase was benami and the mistress had no title thereto. In the facts and circumstances of the case their Lordships were pleased to observe that relationship is a circumstance which is taken into consideration in India in determining whether the transaction is benami or not. In Kumar Harish Chandra Singh's case (3) it was held that benami transactions are recognised in India and that the beneficial owner of property standing in the name of another must necessarily be entitled to institute a suit in respect to it. ;