JUDGMENT
B.L. Yadav, J.
1. This is a plaintiff’s Second Appeal preferred under Section 100 of the Civil Procedure, Code, 1908 (compendiously “the Code”) against the concurrent decree dated 4-4-1986 passed by the First Additional District Judge, Nalanda at Bihar sharif dismissing the First Appeal, and the trial court decree dated 31-7-1982 rendered by the 2nd additional Subordinate Judge, dismissing the suit, for the relief of partition of 50 paise share in the suit land “having an area of 1 acre 18 decimal of Plot No. 1321 Khata No-. 3, Tauzi No. 10633 situate in village Rampur Bagnabad, P.S. Bihar sharif District Nalanda mentioned in Schedule 1 at the foot of the plaint and to carve out separate Takhta of 50 Paisc share, with a consequential prayer to give possession of the aforesaid separate share to the plaintiff.
2. Eschewing the irrelevant facts, the material facts are that the suit land belonged to one Md. Hussain who settled an area of 59 decimals by a registered settlement deed 17-2-1948 (Ext 2) in favour of Bibi Mahfoozan wife of Sk, Leyakat Hussain (defendant No. 9) with Mir Zahur father of defendant Nos. 2 and 5 with one Akbar Imam (defendant No. 1) by virtue of another deed of settlement of the same dated 17-2-1948 and put them in possession over the same. Bibi Mahfoozan wife of said Sk. Leyakat Hussain was in need of money and so she hold an area of 59 decimals by a registered sale deed dated 6-8-1963 (Ext. 2 b) in favour of the plaintiff-appellant for a consideration of Rs. 2,000/- and the plaintiff came in possession over the same and got his name mutated in the Sarishta of the Bihar State and used to pay rent and obtain rent receipts. In this way the plaintiff-appellant has half share, but it was in joint possession with other co-sharers, described in Schedule-!. After death of Mir Zahur Sabheb his four sons came in joint possession with the plaintiff and defendant No. 1. As the joint possession posed-difficulty, hence the present suit was filed with the aforesaid reliefs.
3. Akbar Imam (defendant No. l), Liaqat Hussein (intervenor defendant No. 9 and father of the plaintiff) contested the suit with almost the same common plea that the plaintiff has no-cause of action and the suit was barred by limitation and that plaintiff had no right, title or interest over the suit land and 59 decimals of land was purchased by a deed of settlement dated 17-2-1948 (Ext 2) by Liaqat Hussain (defendant No. 9), father of the plaintiff in farzi name of his wife Bibi Mahfoozan and it was a Bcnami Transaction. The plaintiff obtained a collusive sale deed dated 6-8-1963 from his mother Mahfoozan. who has no right to make the sale. It is further stated that the sale deed dated 6-8-1963 is illegal, collusive and void, inasmuch as the mother has no right to sell the land in favour of has son, the plaintiff, rather real owner was father of the plaintiff, Liaqat Hussain.
4. The trial court dismissed the suit and the appeal by the plaintiff before the lower appellate Court also met the same fate. Against those decrees the present Second Appeal has been filed by the plaintiff.
5. The learned Counsel for the appellant was permitted to take and argue additional points other then those formulated while admitting this appeal under Order XLI Rule 11 of the Code. It was contended that the sale deed dated 6-8-1963 Ext. 2 b), executed by the mother of the plaintiff was legal and for adequate consideration and the name of the vendor was entered in the Sarishta of the State. On enquiry made by the plaintiff he found that Bibi Mahfoozan the vendor did not disclose any defect in the property that she was not the real owner, but courts below erred in law in treating the deed of settlement dated 17-2-1948 (Ext. 2) in the name of Bibi Mahfoozan, the vendor of the plaintiff-appellant to be a Benami Transaction, here as none of the conditions of Benami Transaction were complied with, nor in the contents of the settlement deed there was any thing to indicate that the consideration was not paid by Bibi Mahfoozan but by some one else. In any case Liyaqat Hussain intervenor (defendant No. 9) was none else but the father of the plaintiff and the vendor was mother of the plaintiff in respect of the registered sale deed dated 6-8-1963 (Ext. 2 b) and they were aware about the sale deed in favour of the plaintiff, it aggrieved by the sale deed, Liyaqat Hussain or vendor Bibi Mahfoozan could, at the best, file a suit for cancellation of the sale deed within a period of three, years in view of the limitation provided under Article 59 of the Limitation Act, but that was not done. The rights and claim of eitherr Liyaqat Hussain or Bibi Mahfoozan were barred by limitation but the learned Additional District Judge erred in law in assuming the registered sale deed to have been cancelled by implication. Without scrutinising the character of registered deed of settlement (Ext.2) in favour of Bibi Mahfoozan, just on the basis of oral evidence which was inadmissible in view of Articles 91 and 92 of the Evidence Act, it was held to be a Benami Transaction. There are two types of Benami Transactions, i.e. tripartite Benami Transaction which has been recognised by the case law the real Benami Transaction which the Parliament has sought to snuff out with its statutory force under the Benami Transaction (Prohibition) Act (1988 compendiously “the Acts”) and the second category of Benami Transaction is where Benami Transaction means substantially a sham transaction. The suit would not be barred by the Act, as its provisions are not retrospective and the Title Suit was filed in 1982 and dismissed on 31-7-1982. The courts below erred in not considering the true nature of the sale deed just by referring and considering the oral evidence against the contents of the documents of sale deed dated 6-8-1963 (Ext. 2b) it has been held to be an illegal sale deed which would not confer any right on the plaintiff-appellant, in view of Section’s 91 and 92 of the Indian Evidence Act (for short “the Evidence Act”) the oral evidence was in-admissible in evidence. But the courts below erred in deciding the Benami nature of deed of settlement dated 17-2-1948 (Ext.2) and the legality of the registered sale deed dated 6-8-1963 (Ext. 2b) just on the basis of oral evidence. The findings of the courts below are perverse.
6. The learned Counsel for the respondents on the other hand refuted the submissions of the learned Counsel for the appellant and urged that the finding that the registered deed of settlement dated 17-2-1948 (Ext. 2) was a Benami Transaction as defined under the Act, and the registered sale deed dated 6.8.1963 (Ext. 2b) executed by Bibi Mahfoozan, the mother of the plaintiff-appellant infavour of the plaintiff, was illegal and a sham transaction is a finding of fact. There years limitation under Article 59 of the Limitation Act for cancellation of the sale deed would not apply. The provisions of Sections 91 and 92 of the Evidence Act would not apply. No substantial question of law was involved inasmuch as only one point was formulated on 15-1-1987 while admitting the Second Appeal under Order XLI Rule 11 of the Code.
7. Having evaluated the submissions of the learned Counsel for the parties the points for consideration are whether the registered deed of settlement dated 17-2-1948 (Ext 2) was a Benami Transaction and whether the present suit was barred by Section 4 of the Act. Whether the claim of the defendants-respondents was barred by limitation as no suit for cancellation of the registered sale deed dated 6-8-1963 (Ext. 2b) was filed within three years as required under Article 59 of the Limitation Act and whether the oral evidence was inadmissible in evidence to contradict and vary the terms of registered sale deed dated 6-8-1963 and the registered deed of settlement dated 17-2-1948 (Ext.2) and whether the findings of the courts below about possession etc. are perverse.
8. The first two points may be taken up together. It well settled that there are two types of Benami Transactions (a) Tripartite Benami Transaction recognised by the case law in a situation where ‘B’ was selling the land to ‘B’ but in the name of ‘C as Benami. the real purchaser is ‘B’. (b) The second time of Benami Transaction is that the vender just wanted to conceal the transaction with a view to avoid some liability and did not transfer it. In a Full Bench decision of the Kerala High Court in Bhargavy P. Sumathykutty v. Janaki Sathyabhama and Ors. the distinction between the two types of Benami Transactions has been considered and the dectum is that the first Benami Transaction recognised under the law is a tripartite Benami Transaction and the other is Benami Transaction just by implication when in fact it is not. The dictum laid down in Bhargavy P. Sumathykutty v. Janki Sathyabhama’s Full Bench case (supra) (Paras 34 and 36) are set up:
It is only the tripartite Benami transaction which is recognised by the case law as the real Benami transaction which the Parliament has sought to snuff out with its statutory forcaps under the Benami Transaction (Prohibition) Apt. The corollary is that Parliament would not have intended to make any foray into the sphere of sham-transactions, perhaps what is sham will ever remain shall, though the case law happened to ‘loosely’ or ‘inaccurately’, call that also Benami Sham transaction do not come within the purview of the Benami Act.’ See Duspeh Checko v. Raman Nair .
9. The courts below gravely erred in law in assuming that the registered deed of settlement dated 17-2-1948 (Ext 2) executed by Md Hussain in favour of Bibi Mahfoozan the subsequent vendor of the registered sale deed dated (Ext.26) was a Benami Transaction without considering its contents. Just oral evidence consisting of D W. 3, Akbar Imam and D.W. 4, Liaqat Hussain and D.W.6, Md. Hussain have been considered cursorily and the nature of Benami Transaction has been decided from it. The statements of P.W. 3 Prem Nath and P.W. 2, Md. Abuzar (plaintiff) were on the point of payment of money by Bibi Mahfoozan when she obtained registered deed of settlement dated 17-2-1948 (Ext.2) but their statements have not been considered even though the same was considered by the learned Additional Subordinate Judge-II had considered it on page 12 of the certified copy of the Judgment but the learned Additional District Judge in appeal did not consider it.
10. In order to constitute Benami nature there must be three persons, i.e. ‘A’ sells the property to ‘B’ but the sale deed mentions ‘C as purchaser the real purchaser being B’ and not ‘C Md. Hussain settled the property of an area pf 59 decimals in favour of Bibi Mahfoozan by a registered deed of settlement dated 17-2-1994 (Ext. 2), but there was mention in the contents of this deed (Ext.2) that it was a deed, it cannot be tripartite Benami Transaction. If the deed of settlement was executed on 17-2-1948 (Ext.2), obviously in favour of Bibi Mahfoozan by Md. Hussain and if there were only two parties, the deed did not indicate any thing about Benami, it is only the registered deed of settlement and its contents which would indicate its nature and not oral evidence.
11. In the instant case the courts below also erred in not considering the declaration of law made by the Apex Court in Shree Meenakshi Mills Ltd. v. Income tax Commissioner. and in Bhim Singh v. Kan Singh . It heeds no emphasis that the law declared by the Supreme Court in view of Article 141 of the Constitution is binding on all the Courts and the Tribunal in this country. Even though the declaration of law particularly the recent declaration may not have been cited at the Bar but it is sacred duty of the Court to ascertain the same and to apply it in a particular case.
12. To ascertain whether the points in respect of the exclusion of oral evidence, if the contents of a documents in respect of disposition of the property were to be provided, were taken or not, in that respect.
13. At pate 15 of the certified copy of the judgment of the learned 1st Additional District Judge there is an observation about the plaintiff-appellant’s argument in respect of exclusion of the oral evidence, when the transaction pertaining to immovable property has been reduced to writing, i.e. registered settlement deed dated 17.2.1948 (Ext. 2) and registered sale deed dated 6.8.1963 (Ext. 2-B, in view of the provisions of Sections 91 and 92 of the Evidence Act, but that point has not been considered in proper perspective. The observations are as follows:
…It was argued on behalf of the plaintiff that the contents of the document namely the settlement deed shows that the consideration money was paid by Bibi Mahfoozan and since the documents stands in her name the real and apparent state offair as disclosed by that document must be accepted as true.
But the learned 1st Additional District Judge failed to appreciate the argument in the light of Sections 91 and 92 of the Evidence Act by making the following observations:
Where a transaction has been described as a Farzi transaction, it is open to the person asserting the Farzi character to rebut the contents of the document, as has been done in this case. There is nothing illegal in doing so.
14. Sections 91 and 92 of the Evidence Act, posit with the exclusion of oral evidence with documentary evidence. In other words the contents of a document in respect of disposition of the property can be proved by primary evidence or by secondary evidence admissible under the law. (See Sections 61 to 65) and not by oral evidence. Oral evidence has it limitation, if a fact has to be proved by oral evidence, it must be direct evidence (Section 60) A document is intended to be record of a transaction, hence except the document, the oral evidence is excluded.
15.I have perused the contents of both the deeds of settlement and the sale deed in presence of the learned Counsel for parties, and the contents of the same do not lead to the conclusion that it was a Benami Transaction. The finding of the courts below that the deed of settlement dated 17.2,1983 (Ext. 2) was a Benami and sham transaction is erroneous and must be set aside.
16. As regards the next point it cannot be in dispute that once a registered sale-deed was obtained for adequate consideration and if some body feels aggrieved he has to file a suit for cancellation of the same within a period of three years, as contemplated by Article 51 of the Limitation Act, but it was not done so. The first vendor Liyaqat Hussain was not a stranger to the family. In respect of the second sale deed dated 6.8.1863 (Ext. 2b) the mother was vendor and she was also aware about the real state of affairs and the sale deed dated 6.1.1963 was not challenged within three years. They must have filed a suit for cancellation of the sale deed dated 6.8.1963 (Ext. 2b) within three years from the date of the sale or from the date they came to know about it nothing has been said in defence as to why such suit was not filed within three years. In my opinion, the claim and the right of the defence, if any, is barred by limitation. The points involved in this Second appeal are substantial questions of law and they have been incorrectly decided.
17. In view of the premises aforesaid the decrees of the courts below cannot be maintained by the present Second Appeal succeed and the same is allowed and the decrees of the Courts below are set aside and the suit is decreed with costs throughout. Let a preliminary decree be prepared for partition of Fifty paise share out of 1 Acre 16 Decimals of land bearing Plot No. 1421 under Khata No. 30 of village Rampur Baiganabad, Police Station Biharsharif, District Nalanda.
