JUDGMENT
Lilamoy Ghosh, J.
1. In a suit for partition against the defendant, the plaintiffs, who are the successors-in-interest of Late Sidhheswar Neogi, urged that both the ‘A’ and ‘B’ Schedule properties belonged to Sidhheswar. The plaintiffs 1 and 2 are the sons of Sidhheswar. The plaintiff No. 3 is the widow of Sidhheswar. The defendant is also a son of Sidhheswar. With reference to the ‘B’ Schedule properties, the plaintiff averred that Sidhheswar acquired the same properties in 1936 by obtaining a mortgage from one Sailendra Kumar Neogi. However, it was pointed out that as Sidhheswar Neogi was a railway employee and as there was prohibition against the mortgage transactions between the railway employees, the mortgage was taken in the name of the defendant. But Sidhheswar was paying rents, taxes, etc., all along, as claimed by the plaintiffs. Even after the father’s death, the parties were living in joint mess. It is not disputed that the plaintiffs 1 and 2 and the defendant had another brother, Sachin, who died unmarried. On the basis of the case that both the ‘A’ and ‘B’ Schedule properties were the self acquired properties of Sidhheswar, the plaintiffs claimed 3/4th share and asked for partition according to their share.
2. The defendant did not dispute that the ‘A’ Schedule properties were acquired by Sidhheswar. So, the plaintiffs’ claim in respect of the ‘A’ Schedule properties was not challenged. With regard to the ‘B’ Schedule properties, the defendant raised a serious controversy. Defendant asserted that the ‘B’ Schedule properties were acquired by him. As a narration how the defendant acquired the ‘B’ Schedule properties, it was stated that one Radha Kanta Neogi had mortgaged the ‘B’ Schedule properties to one Satish Chandra Nandi, who auction purchased it. Further, during the pendency of the litigation, Radha Kanta mortgaged the properties in favour of Late Sidhheswar Neogi, suppressing the facts. Radha Kanta approched Satish Nandi for resale and the latter agreed. Then, as per account of the defendant, Radha Kanta approached Sidhheswar Neogi, but the latter refused to advance money as he was deceived once by the said Radha Kanta. Then, the maternal aunt of the defendant suggested that she would ask her maternal uncle to advance the money to the defendant, because marriage negotiation between the defendant and the daughter of the maternal uncle of the maternal aunt of the defendant was going on. Under that arrangement, Satish resold on 5.9.36 to Radha Kanta and Radha Kanta executed mortgage deed in favour of the defendant. Ultimately, the defendant purchased the suit property on 8.12.42 in court sale, on the basis of the mortgage. In paragraph 7 of the written statement, the motive alleged by the plaintiff for acquisition of the property benami is denied. In paragraph 10 of the written statement, it is categorically denied that the ‘B’ Schedule properties were acquired with the money of Sidhheswar for his own benefit. In short, the defendant claimed that the ‘B’ Schedule properties belonged to him exclusively and he had self acquired the same.
3. The parties went to trial on the basis of these pleadings.
4. The learned Subordinate Judge, who heard the suit, accepted the plaintiffs’ case with regard to both ‘A’ and ‘B’ Schedule properties and decreed the suit. The plaintiffs’ 3/4th share in the suit properties was declared and the defendant’s l/4th share was also declared. There was direction for partition.
5. Against that judgment and decree of the learned Subordinate Judge, 10th Court, Alipore, this appeal has been preferred.
6. Mr. Bhattacharya, the learned advocate, has appeared for the defendant/appellant. Mr. Sengupta has appeared for the respondents. It has been noticed before that there is no dispute regarding the ‘A’ Schedule properties. Therefore, the decree in respect of the ‘A’ Schedule properties must be maintained.
7. The real controversy is regarding the ‘B’ Schedule properties. Mr. Bhattacharya, the learned advocate appearing for the appellant, has made mainly a two-fold argument; first, under the Benami Transactions (Prohibition) Act, 1988-(hereinafter referred to as the Act), the plaintiffs cannot maintain a suit of this nature, based on the assertion that the transaction in respect of the ‘B’ Schedule properties was benami transaction ; secondly, even on merits, the plaintiffs have failed to prove the benami nature of the transaction.
8. Mr. Sengupta, on the other hand, has argued that a suit by the successors-in-interest of the real owner cannot be hit by the prohibition of the Act. On merits, he has referred to the various materials on record for pointing out that Sidhheswar must have acquired the properties in the benami of the defendant.
9. Coming to the question whether a suit of this nature is maintainable under the Act, we notice that Section 4 of the Act completely bars a suit or defence based on the allegations that the property was purchased benami. Sub-section 1 of Section 4 of the Act bars a suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person. The expression used in the sub-section is-no suit shall lie. This has been held to be retroactive, although the Act itself has not been given any retrospective effect. Mr. Bhattacharya, the learned advocate for the appellant, has relied upon the decision of the Supreme Court in Mithilesh Kumari’s case . In deed, the Supreme Court has laid down in clear terms that the section brings within its sweep pending suits, as that provision is retroactive. In the authority of the Supreme Court decision, just cited above, we hold that this suit also will not be maintainable in view of the retroactive operation of the Act.
10. Still Mr. Senugpta has argued that when the Act has not been given retrospective effect, the decision of the Supreme Court would apply if the facts in both the cases are the same. The first argument of Mr. Sengupta has been that before making the decision applicable, it has to be found that the transaction was benami. We are not impressed by the utility of this argument. If it is not benami at all, then the apparent owner would be the real owner and in that event, the plaintiffs would be out of Court, so far as the ‘B’ Schedule properties are concerned. And if the transaction was a benami transaction in the sense that Sidhheswar was the real owner, even then the plaintiffs’ suit would be barred. Mr. Sengupta has argued that a suit for declaration that a certain transaction is benami may be barred, but a partition suit need not be barred. This argument has also no force, because even in a partition suit, declaration of the shares of the parties is called for and Section 4 of the Act does not speak of the nature of the suit to enforce any right in respect of any property held benami. The statute has made deep inroad and does not merely concern with the style or framing of a suit.
11. The next argument advanced by Mr. Sengupta has been that such a suit, as referred to before, is barred only when the said real owner comes to enforce his right against the apparent owner. This submission also has no merit. Section 4 is concerning the legal rights inhering in a certain person. That is to say, Section 4 is not concerning persons in blood and flesh merely, but persons representing certain interests. The language is clear and it is that no suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie. The stress is laid on the property and on the person in whose name the property is held. It is also significant to note that Sub-section 1 of Section 4 not only brings within its ambit the person in whose name the property is held, but also any other person. Obviously, the representatives of the original name lender also come within the scope of the provision. Similarly, it is also made clear by the Section itself that no suit shall lie by and/or on behalf of a person claiming to be the real owner/of such property. That is to say, not only the original real owner is debarred from filing a suit to enforce such right, but his representatives, are as well debarred. Such being the legal position, it makes practically no difference for us that Sidhheswar is not alive. The facts of this case are not distinguishable from the facts of the Supreme Court Case. Therefore, in this case also, the Act has retroactive operation, though it has not been given retrospective effect. We are of the opinion that in view of the statute and the Supreme Court decision of Mithihsh Kumari supra, the plaintiffs cannot maintain a suit in respect of the ‘B’ Schedule properties.
12. Assuming that the plaintifis were not debarred from maintaining a suit of this nature, we find even on facts the plaintiffs cannot succeed. It is a well known principle of law that the burden of proving that the apparent state of things is not the real state of things lies on the person who alleges it. In certain cases, the burden might be light, but at last some legal evidence must be furnished to prove that one is the benamdar of the other. The most important consideration in a benami case is who paid the consideration money. The plaintiffs examined six witnesses. But not a single witness has averred that Sidhheswar gave the consideration money. PW-1 is the plaintiff No. 1 himself. In his chief he has merely said that his father took mortgage of the ‘B’ Schedule properties but he has admitted towards the end of his cross examination that whatever he says about the said mortgage, he just heard from his father. PW-2 is merely an employee of the Eastern Railway and brought some circular. PW-3 claims that in 1942 Sidhheswar let out a house to him and he used to pay rent to that person. But according to him, he did not get any receipt. This evidence of PW-3 does not inspire confidence. At any rate, he does not speak about the source of money. PW-4 simply brought some papers relating to assessment of the suit house. No doubt, Ext. 4 series disclose the names of the plaintiffs as well. But the Assessment Registers cannot decide the question of title. Moreover, all the copies of the registers have not been produced. Only the papers relating to the years 1967-68 to 1969-70 have been produced. Nothing turns on the evidence of PW-4. PW-5 is the Tax Collector. He deposes that he used to collect tax from Sachin Babu who used to pay tax on behalf of Sailen Neogi, the defendant. His evidence rather supports the defence case. PW-6 merely states that all the four sons and wife of Sidhheswar used to live in the suit house after the death of Sidhheswar. It is the defence case that after the defence authorities acquired Pankajini’s house, the defendant, with his parents and brothers shifted to the house in the ‘B’ Schedule properties. That is the evidence of DW-1, the defendant. DW-2 is the brother-in-law of DW-1 and has come to prove that Sailen took the mortgage and the money was paid by his father. DW-3 is a witness about construction of a room for Sailen. DW-4 is the son of Sailen and he also maintains’ that his father constructed some rooms and the witness himself purchased raw materials. Thus we have noticed that there is no legal evidence that Sidhheswar paid the money. The plaintiffs merely stress on the fact that the defendant at that time could not have the means to pay the money. The defendant has offered some explanation and it is that his would be father-in-law advanced the money. It has been criticised that it is a most improbable case. But a cause cannot be decided merely on the probability of a case. If some evidence is. led, that evidence which fits in with the probabilities can be accepted ; but if no evidence is led, merely on the basis of probabilities, the case cannot be decided. Mr. Sengupta has relied upon the decision of Bhuban Mohini Dasi, (28 CWN 131). But in that decision itself, it has been made clear that the person who impugns the apparent character must not rely, however, solely on probabilities. Lord Phillimore in Seth Manick Lal, 25 CWN 409 (PC) pointed out that the decision of the Court should rest not upon suspicion but upon legal grounds established by legal testimony. We have pointed out that there is no legal evidence as regards the source of money. As regards motive, it was submitted that because there was prohibition by the railway authorities against dealing in mortgage transactions, Sidhheswar took the properties in the benami of Sailen. But the plaintiffs are possibly unaware of the fact that title did not accrue on the basis of the mortgage deed of 1936. Ultimately the properties were put to sale in auction and the sale certificate is dated 8.12.42. That is Ext. B/4. Thus even if there was some bar against entering into mortgage transactions. Sidhheswar could not be debarred from purchasing the properties in auction sale. Ext. B/4 discloses that the defendant, the decree-holder, auction purchased the properties held on 15.5.42. The plaintiffs seem to think as if the mortgage deed itself was the title deed. The plaintiffs are not conscious of the further proceedings. It also appears that by Ext. B/l, Sidhheswar had purchased Pankajini’s properties. That was dated 6.12.39. There is no reason why Sidhheswar could not buy other properties, namely the ‘B’ Schedule properties, if he really was minded to. Therefore, the motive for benami also goes. Motive is not always an essential fact, but when a particular motive is assigned and found to be completely baseless, the case of the person claiming to be the real owner becomes weaker. On a discussion of the entire materials, we find that even on merits, the plaintiffs’ claim that Sidhheswar was the real purchaser cannot be entertained.
13. Now there remain only a few additional constructions. Ext. B/4, the sale certificate, discloses that there were already structures. Regarding additions, some evidence has been adduced by the defendant that Sailen made the constructions. We have already referred to the evidence of DWs. 3 and 4. The plaintiffs have not adduced any good evidence regarding further constructions. We have only the stray statement of PW-4 that his father constructed. As against that, we have the evidence of one independent person, namely, DW-3. That apart, once we accept that Sailen himself and purchased the ‘B’ Schedule properties with the structures standing thereon, it would be natural to accept that he made further constructions.
14. Considering the entire matter, we are convinced that even if the plaintiffs are not debarred from commencing any action with respect to the ‘B’ Schedule properties, on facts it appears that the defendant himself acquired the properties. Therefore, the plaintiffs’ case for the ‘B’ Schedule properties must be dismissed.
15. The appeal succeeds in part. The judgment and decree of the learned Trial Court in T.S. No. 40 of 1976 [10th Court of the Subordinate Judge at Alipore, 24 Parganas (South)] decreeing the suit for partition in respect of the ‘A’ Schedule properties are hereby confirmed. The judgment and decree of the learned Trial Court in respect of the ‘B’ Schedule properties are hereby set aside. The plaintiffs’ suit for ‘B’ Schedule is hereby dismissed. The time for effecting the partition by metes and bounds in accordance with the shares of the parties, declared by the learned Trial Court in respect of the ‘A’ Schedule properties, is hereby extended by three months from the date of the arrival of the Lower Court Records in that Court. The records be sent down to the Trial Court immediately. We make no order for cost of this appeal.
16. Mr. Mukherjee, learned Advocate for the Respondents, submits that certificate may be granted by this Court to appeal to the Supreme Court. We think that this certificate cannot be granted in view of the provision of Article 133 of the Constitution of India. The requirements of that Article are that the case must involve a substantial question of law of general importance and that in the opinion of the High Court, the said question needs to be decided by the Supreme Court. Even though the case might involve substantial question of law of general importance, as the matter has already been decided by the Supreme Court itself in Mithilesh Kumari’s case , we think that the second requirement of Article 133 is not satisfied. As the matter has already been decided by the Supreme Court, we cannot grant any certificate that the same needs to be decided by the Supreme Court.
The prayer for certificate is refused.
A. Sengupta, J.
17. I agree.