1957 (11) TMI 35 - HC - Benami Property

Wife deemed benamdar for husband, bank can attach property pre-judgment. Appeal dismissed.

Sm. Khabirannessa Bibi Versus Sudhamoy Bose, Official

The court upheld the trial court's judgment that the appellant was a benamdar for her husband regarding the disputed property. It also affirmed the ... - Issues Involved:1. Benami transaction and ownership of the disputed property.2. Legality and validity of the attachment before judgment.3. Evidentiary burden and assessment in benami cases.Detailed Analysis:1. Benami Transaction and Ownership of the Disputed Property:The primary issue in this case was whether the appellant (defendant No. 1) was the real owner of the disputed 'Ka' schedule property or merely a benamdar for her husband (defendant No. 2). The trial court held that the appellant was indeed a benamdar for her husband, who was the actual owner and possessor of the property. The appellant contested this finding, asserting her title and possession of the property.The court examined the evidence and circumstances surrounding the acquisition of the property and the construction of the building. It noted that the source of the consideration money was crucial in determining the true ownership. The evidence suggested that the funds for the property and construction came from the husband, not the appellant. The court found the appellant's claim of receiving substantial funds from her father and husband as prompt dower to be unconvincing, given the lack of supporting evidence and the improbability of her father being able to provide such funds.The court also considered the husband's actions, such as supervising the purchase and construction, and the evidence of electric bills and letters in his name, which indicated his involvement and control over the property. The husband's failure to appear in court and support the appellant's claim further weakened her case. Consequently, the court upheld the trial court's finding that the appellant was a benamdar for her husband.2. Legality and Validity of the Attachment Before Judgment:The second issue was whether the trial court was justified in declaring the plaintiff bank's right to attach the 'Ka' schedule property before judgment. The appellant argued that such a declaration was technically incorrect and implied an affirmation of the legality and validity of the attachment.The court clarified that the trial court's declaration was intended to affirm that the property, being owned by defendant No. 2, was liable to attachment for his debts. The declaration did not necessarily affirm the legality of the attachment process itself but rather confirmed the plaintiff's right to attach the property as belonging to defendant No. 2. The court concluded that the trial court's declaration was appropriate and did not warrant interference.3. Evidentiary Burden and Assessment in Benami Cases:The court discussed the principles governing benami transactions, emphasizing that the burden of proving benami lies on the party alleging it. The court must base its decision on legal evidence, considering both direct and circumstantial evidence, and taking an overall view of the entire evidence and circumstances.In this case, the court found that the evidence presented by the plaintiff, including the husband's involvement in the purchase and construction, and the lack of credible evidence supporting the appellant's claim of independent funds, sufficiently established that the appellant was a benamdar. The court affirmed that the trial court's judgment was based on a proper assessment of the evidence and relevant circumstances, and there was no undue reliance on suspicion or surmise.Conclusion:The court dismissed the appeal, upholding the trial court's judgment that the appellant was a benamdar for her husband concerning the 'Ka' schedule property. The court also affirmed the plaintiff bank's right to attach the property before judgment, subject to any legal remedies available to the defendants in the Money Suit. The decision was based on a comprehensive analysis of the evidence and principles governing benami transactions. The appeal was dismissed with costs assessed at 30 gold mohurs.