Leave granted.
The defendants in the original suit are the appellants before us.
The respondent filed a suit for partition in respect of the suit schedule
property, inter alia on the premise that although the property stood in the name of
defendant - appellant No.1, but the transaction was benami in nature. The defendants
denied and disputed the aforementioned contention of the respondent.
One of the issues which was framed by the Trial Court was:
“Whether the defendants prove that the suit property is the joint
family property of the plaintiff and the defendants?”
The said issue was determined in favour of the appellants by the learned
Trial Judge holding:
“In fact, DW 1 also has stated that the plaintiff was residing with his
parents till his marriage. Therefore, this document would lose much
of its importance to establish that the suit schedule property was the
joint family property. Ex. P.3 is the notice issued by the 1st
defendant to the plaintiff. In the said notice issued on 23.6.1988,
defendant No.1 had stated that suit schedule property were
purchased by investing the sale proceeds of the property situated at
Kozikode given by the father of the 1st defendant. This document as
stated earlier, dates back to 23.6.1988, i.e. much prior to the
institution of the suit. Even prior to the institution of the suit the
defendant No.1 had categorically stated that the property was
purchased by utilizing the sale proceeds of the property of
Kozikode. This would not throw much light regarding the dispute in
question.”
It was furthermore held:
“The Property as stated earlier, would, at best be the property
acquired in the joint venture, but for which, sufficient evidence is
not there. According to the plaintiff, he joined service in the Police
Department in 1972. Earlier to 1972 he was not having any
earnings, as could be seen from the evidence. If really the plaintiff
had earnings earlier 1972, he would have produced some document
or would have spoken about it. On the other hand, in the course of
cross-examination, as referred to earlier, the plaintiff has stated that
he is not having any document to show that he had source of income
prior to 1972. Of course, in the course of cross-examination of DW1,
the learned counsel for the plaintiff had posed a suggestion to DW1
that earlier to 1972 the plaintiff was working at Galaxy Theatre.
Writ reference to the said suggestion, DW1 has denied the same in
unequivocal terms. The plaintiff, if really had an employment with
the Galaxy Theatre earlier to 1972, he would not have lost sight of to
mention that such an important event in his life before Court. But,
in the course of his examination-in-chief PW1 has not even
whispered a word about it. Therefore, the contention of the
plaintiff's Advocate that his client was working at Galaxy Theatre
prior to 1972, to augment the funds fall to the ground.”
Inter alia on the aforementioned finding, the suit for partition filed by the
respondent was dismissed. A first appeal was preferred thereagainst before the High
Court. By reason of the impugned judgment, the High Court without considering any
of the aforementioned findings of the learned Trial Judge, allowed the same holding:
“In Ex.P3 – reply notice, DW1 admits that on the suit site, a house is
constructed from out of the terminal benefits of her husband. In
evidence, she states that about 26 years ago, a property at Kachikodi
was sold and a site was purchased at Suddaguntanapalya which was
again sold and from the said funds the suit site was purchased later
on. DW1 clearly admits that she does not have any documents to
show the sale of site in Suddaguntanapalya and use the said funds
for purchase of the suit site. Therefore, in the absence of necessary
evidence, it emerges that the property was purchased by Kumaran
Nair and the house is constructed from out of the funds of Kumaran
Nair. The first defendant appears to be only benamidar. The
provisions of Benami Transaction Act does not prohibit benami
investment in the name of wife. The facts stated by defendant No.1
show that the suit property is the self acquired property of the
propositus. In that view, upon his demise, the wife and children
would be entitled to equal share under Section 8 of the Hindu
Succession Act. Obviously, the plaintiff is entitled to 1/5th share in
the suit property. The judgment and decree of the trial court is set
aside. The appeal is partly allowed as indicated above.”
Having heard the learned counsel for the parties, we are of the opinion that
keeping in view the nature of the dispute, namely, as to whether the transaction in
question was a benami one, was required to be gone into by the High Court keeping in
view the findings of the learned Trial Judge. The High Court did not follow the
provisions of order 41 Rule 31 of the CPC; the reasonings of the learned Trial Judge
were not met and the oral evidence adduced by the parties have not been discussed.
In this view of the matter, the impugned judgment cannot be sustained and it
is set aside accordingly. The appeal is allowed and the matter is remitted to the High
Court for consideration thereof afresh on merit.
We make it clear that all contentions of the parties shall remain open.
(S.B. SINHA)