Tarun Kumar Gupta, J.

The plaintiff is the appellant against a judgment of affirmation. The plaintiff filed a suit being O.C. Suit No.200 of 1986 in the Court of learned Munsif, First Court, Malda alleging as follows:

The plaintiff married the defendant on 20.07.1976 under Special Marriage Act and she left the house of her father with 20 /22 gold ornaments and Rs.5 /6 thousand in cash. They started to live as husband and wife and had issues. The plaintiff purchased the suit property on 07.05.1981 from vendor Bimal Kumar Majumder on payment of Rs.18,000/-. She procured said money by selling her ornaments. A house was also constructed with her money where she started to reside with her husband and children. She also sold some land to one Md. Ilias on 04.09.1981 by a registered kobala. As defendant husband became addicted to other women the relation between the parties became strained. The defendant husband put pressure upon the plaintiff wife for transferring suit property in his favour. He forcibly took away the plaintiff to his native village at Jadupur for putting further pressure. However, there was a village salish on 30.09.1984 wherein he made an agreement admitting the claim of the plaintiff in the suit property. However, in the meantime he managed to obtain an ex parte decree in O. C. Suit No.159 of 1984 by practising fraud upon the Court by suppressing summon. On 4th August, 1986 the defendant tried to forcibly dispossessed the plaintiff from the suit property and then she learnt about said fraudulent ex parte decree. Hence was the suit praying for declaring her right, title and interest in the suit property with a further declaration that the ex parte decree in O. C. Suit No.159 of 1984 obtained by the defendant was void being vitiated by fraud and for permanent injunction.

The defendant contested said suit by filing written statement. Though he admitted the marriage between the parties and having children through said wedlock but denied the allegation of having ornaments and her money by the plaintiff through her father. According to him, the plaintiffs family was a very poor one and there was no question of leaving her fathers house with huge gold ornaments or money as alleged. The suit property, according to the defendant, was purchased by him in Benam of his wife as he purchased the same with his own money as well as money taken from his father just to avoid future complication from his brothers and other co-sharers. It is further case that the notice and summon of the earlier suit (O.C. No.159 of 1984) were duly tendered to the present plaintiff wife (defendant of the suit) but she refused to accept the same, and that the present subsequent suit is barred by the principle of res judicata and is not maintainable.

Learned Trial Court framed several issues. On contested hearing learned Trial Court dismissed the suit.

The plaintiff preferred an appeal being O. C. Appeal No.2 of 1991. Said appeal was also dismissed by the impugned judgment dated 9th June, 1992 and decree thereof.

Initially, there was hearing of this second appeal. The second appeal was allowed by judgment dated 7th April, 2004 by one of the learned Judges of this Court. The defendant filed an appeal being Civil Appeal No.5869 of 2006 after obtaining a special leave from the Honble Apex Court. As no substantial question of law was framed at the time of admission of this appeal Honble Apex Court set aside the judgment dated 7th April, 2004 with a direction to this Court to frame substantial questions of law afresh and then to hear about the matter on merit, if necessary.

In presence of learned counsels of the parties the following substantial questions of law were framed.

(1) Whether learned courts below substantially erred in law by not applying the provisions of benami transaction (Prohibition Act, 1988) when admittedly defendant husband took the plea of benami during hearing of the suit.

(2) Whether learned courts below substantially erred in law by holding that ex parte decree dated 19th May, 1986 passed in O.C. Suit No.159 of 1984 was not vitiated by fraud and accordingly was binding upon the parties being res judicata.

Mr. S. P. Roychowdhury, learned senior counsel for the plaintiff appellant, submits that learned Courts below substantially erred in law by holding that the ex parte decree dated 19th May, 1986 passed in O. C. No.159 of 1984 was not vitiated by fraud and accordingly was binding upon the parties being res judicata without applying correct legal test. According to Mr. Roychowdhury said ex parte decree dated 19th May, 1986 passed in O. C. Suit No.159 of 1984 was vitiated by fraud as no notice of said suit was served upon the defendant wife (plaintiff of the subsequent suit). He further submits that as said decree was vitiated by fraud, it was a non-est in the eye of law and hence there was no question of it being res judicata in a subsequent suit between the parties over the same property.

His next leg of submission is that the specific issue as to whether the defendant wife in said suit was mere benamdar of the plaintiff husband or was the true owner of the suit property was not decided in said earlier suit (O. C. Suit No.159 of 1984) and hence the ex parte judgment of said earlier suit cannot operate as a res judicata in the subsequent suit. In this connection he refers case laws reported in (1974) 1 SCC 3 [LQ/SC/1973/314] (Jaydayal Poddar Vs. Mst. Bibi Hazra and others), (1999) 4 SCC 243 [LQ/SC/1999/452] (Pawan Kumar Gupta vs. Rochiram Nagdeo), (2007) 8 SCC 329 [LQ/SC/2007/1040] (Saroja vs. Chinnusamy and another).

Mr. Ajoy Krishna Chatterjee, learned counsel appearing for the defendant /respondent husband, on the other hand, submits that both the courts below came to a concurrent findings of fact that no fraud was committed by the husband in obtaining the ex parte decree dated 19th of May, 1986 in O. C. Suit No.159 of 1984. According to him, said findings of learned courts below were based on evidence and hence there is no scope of interference on that point by this Court at the time of hearing of this second appeal.

Admittedly, if it is established that a party obtained a decree, be it ex parte or otherwise, by suppressing summon or by practising fraud upon the Court then said judgment will be non-est in the eye of law being vitiated by fraud. However, the initial onus is upon the person alleging that the judgment of a court of law was vitiated by fraud on account of suppression of summons. Whether there was suppression of summons for obtaining an ex parte decree is a question of fact. It is also a settled principle of law that concurrent findings of fact of learned courts below should not be disturbed by a court of second appeal unless it can be shown that said concurrent findings were based on no evidence, or were based on extraneous matters, or were passed disregarding settled principles of law and were perverse on that score. The plaintiff appellant wife alleged in her pleadings in this subsequent suit (O.C. No.200 of 1986) that no summon of said earlier suit being O. C. No.159 of 1984 filed by her husband was served upon her. It appears from the case record that the defendant respondent husband examined the concerned process server Tarapada Das (D.W.6) as well as the concerned postal peon Dhupal Chandra Mondal (D.W.7) to prove tender of summon of O.C. No.159 of 1984 upon the wife. It appears that said process server (D.W.6) deposed that the defendant wife refused to put her signature on the summon on tender and accordingly he served it by hanging in presence of witnesses named in his report (Ext.4). The postal peon (D.W.7) also deposed that as the addressee (defendant wife) refused to accept the registered letter on tender he returned the same with his report refused (Ext.E). It appears that the evidence of those two witnesses remained unshaken in spite of cross-examination, and accordingly, learned Courts below placed reliance on their evidence. It further appears that the husband initially preferred an appeal being Title Appeal No.38 of 1985 against the ex parte order in O.C. Suit No.159 of 1984 and that a notice of said appeal was sent to the respondent wife who admitted during her evidence that she accepted the notice of said Title Appeal No.38 of 1985 by putting her signature on the postal A/D card (Ext.A). As such, it is apparent from the admission of the wife that she at least accepted the notice of the title appeal being No.38 of 1985 arising out of O.C. No.159 of 1984 filed by her husband. As she preferred not to contest said appeal, she cannot be permitted to allege at this stage that she had no notice of the earlier suit (O.C. 159 of 1984) as said appeal arose out of said suit being O.C. 159 of 1984. In view of said overwhelming evidence on record learned Courts below came to a concurrent finding of fact that no fraud was practised in obtaining the ex parte decree dated 19th May, 1986 by the husband in O. C. Suit No.159 of 1984. As said concurrent findings of fact were based on evidence there is no scope of interfering with the same by this Court at the time of hearing of this second appeal.

In O.C. Suit No.159 of 1984 the husband as plaintiff claimed that he purchased the suit property in the Benam of his defendant wife and that he was the real owner and that his title to the suit property be declared with a permanent injunction restraining the defendant wife from selling and / or transferring it to anybody or from dispossessing the plaintiff husband therefrom. In this subsequent suit being O. C. suit No.200 of 1986 filed by the wife there was prayer for declaring plaintiff wifes 16 annas right, title and interest over the suit property with a further prayer for declaring the ex parte decree in O. C. Suit No.159 of 1984 being void and not binding upon the plaintiff being vitiated by fraud with a consequential relief of injunction. Admittedly, the plaintiff wife has claimed in her plaint that the suit property was purchased with her money and that a house was constructed thereupon with her money and that she was the 16 annas owner thereof. There is no denial that the suit property was standing in the name of the wife in the kobala through which said property was purchased. Now, the question is whether the ex parte judgment dated 19th May, 1986 passed in the earlier suit (O.C. Suit No.159 of 1984) will operate as res judicata in the subsequent suit (O.C. Suit No.200 of 1986) filed by the present plaintiff wife.

Res judicata has been defined under Section 11 of the Code of Civil Procedure which runs as follows:-

No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation I.- The expression former suit shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

Explanation II.- For the purpose of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.

Explanation III.- The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation V.- Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this Section, be deemed to have been refused.

Explanation VI Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this Section, be deemed to claim under the persons so litigating.

Explanation VII.- The provisions of this Section shall apply to a proceeding for the execution of a decree and references in this Section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.

Explanation VIII.- An issue heard and finally decided by a Court of limited jurisdiction, competent to decided such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.

In Sarojas case (supra) Honble Apex Court observed as follows:-

After a careful reading of the provisions under Section 11 CPC, it is discernible that in order to constitute res judicata, the following conditions must be satisfied

(i) There must be two suits one former suit and the other subsequent suit;

(ii) The Court which decided the former suit must be competent to try the subsequent suit;

(iii) The matter directly and substantially in issue must be the same either actually or constructively in both the suits;

(iv) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the former suit;

(v) The parties to the suits or the parties under whom they or any of them claim must be the same in both the suits. It is not necessary that all the parties to the two litigations must be common. All that is necessary is that the issue should be between the same parties or between parties under whom they or any of them claim;

(vi) The parties in both the suits must have litigated under the same title.

It was further held therein a decree which is passed ex parte is as good and effective as a decree passed after contest. An ex parte decree is binding as a decree passed after contest on the person against whom such an ex parte decree has been passed. An ex parte decree would be so treated unless the party challenging the ex parte decree satisfies the Court that such an ex parte decree has been obtained by fraud.

Let us apply the ratio of the case of Saroja (supra) referred by learned counsel for the plaintiff appellant in the facts of this case to ascertain whether said ex parte decree dated 19th May, 1986 passed in O.C. Suit No.159 of 1984 will operate as res judicata in the subsequent suit. Admittedly, the parties as well as suit properties were same in both the suits. Again admittedly the point in issue in both the suits was who is the real owner of the suit property which was purchased on the strength of a kobala standing in the name of the wife. In the earlier suit (O.C. No.159 of 1984) it was decided though ex parte that the husband was the owner of the suit property though its purchase deed stood in the name of the wife. I have already stated that the plaintiff wife of the subsequent suit failed to establish that said ex parte decree of the earlier suit was vitiated by fraud. As all the conditions under Section 11 of the Code of Civil Procedure have been fulfilled, the ex parte decree dated 19th May, 1986 passed in the former suit (O.C. Suit No.159 of 1984) will operate as res judicata in this subsequent suit (O.C. 200 of 1986) filed by the plaintiff wife. The findings of learned courts below on this score do not call for any interference in view of the discussions as made above.

It is true that learned counsel for the plaintiff appellant wife referred some other decisions on the point of res judicata as cited above but those decisions are not going to help the plaintiff respondent in any way.

In Pawan Kumar Guptas case (supra) the legal position as to the applicability of the principles of res judicata against the defendant in respect of findings recorded in a dismissed suit was discussed.

In Jaydayal Poddars case (supra) it was held by the Honble Court that the findings (under Section 47 and Order 21 Rule 57 of the Code of Civil Procedure) in another suit relating to another part of the disputed house that H was a benamidar would not operate as res judicata to the present suit relating to other part of the same house. The facts of those case laws are distinguishable and hence those case laws have no application in the facts of the present case. Accordingly, I find and hold that the subsequent suit O.C. 200 of 1986 filed by the present plaintiff appellant wife was hopelessly barred by the principles of res judicata.

Now, the other substantial question of law as to whether learned courts below substantially erred in law by not applying the provisions of Benami transaction (Prohibition Act, 1988) when defendant husband took the plea of Benami during hearing of the suit, loses its significance. However, this can only be discussed for academic interest.

Mr. Roychowdhury, learned senior counsel appearing for the plaintiff appellant wife, submits that when the property was standing in the name of the wife then onus is upon the husband to prove that the wife was a mere benamdar and that he was the real owner. He next submits that learned Courts below wrongly shifted burden to the wife to establish that the suit property was purchased from her money. According to Mr. Roychowdhury even if it is established that the husband took initiative for purchase of the property or that the purchase deed was lying with the husband or that the husband paid taxes and also took active steps in the construction of the house thereupon, these facts by itself cannot show that the wife was mere Benamdar of the husband in the social-economic status of wife vis--vis husband in our society. He further submits that even if it is established that the source of money came from the husband even then it has to be presumed that the husband purchased the same for the benefit of his wife in absence of any evidence to the contrary. In support of his contention on this issue he refers case laws reported in (1974) 1 SCC 3 [LQ/SC/1973/314] (Jaydayal Poddar vs. Mst. Bibi Hazra and others), (2004) 7 SCC 233 [LQ/SC/2004/971] (Valliammal Vs. Subramaniam and others), AIR 2007 Supreme Court 2637 (V. Shankaranarayana Rao vs. Leelavathy and others), (2007) 76 SCC 100 (Binapani Paul vs. Pratima Ghosh and others), AIR 1974 SC 658 [LQ/SC/1974/68] (Vidyadhar Krishnarao Mungi and others vs. Usman Gani Saheb Konkani and others), 1974 CLJ 370 (Sm. Tara Sundari Sen vs. Pasupati Kumar Banerjee & Ors.) and AIR 1940 Calcutta 356 (K. K. Das vs. Amina Khatun).

Mr. Chatterjee, learned counsel for the defendant/ respondent / husband, on the other hand, submits that whether a property standing in the benam of wife was the property of the husband is a question of fact. According to him, both the courts came to concurrent findings of fact on that issue against the plaintiff wife and hence this Court while hearing second appeal under Section 100 of the Code of Civil Procedure should not disturb said concurrent findings of fact.

In Jaydayal Poddars case (supra) the question of Benami, its ingredients and mode of proof were discussed in details. The relevant portion of said judgment is quoted below.

It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him nor justify the acceptance of mere conjectures or surmises, as a substitute for proof.

The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchase or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state affairs. Though the question whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformly applicable in all situations can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the Courts are usually guided by these circumstances: (1) the source from which the purchase money came; (2) the nature and possession of the property after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale.

The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless No.1, viz., the source whence the purchase money came, is by far the most important test for determining whether the sale standing in the name of one person, is in reality for the benefit of another.

Other referred case laws on the point of Benami did not discuss the criteria of Benami transaction in so much details as held in Jaydayal Poddars case. In V. Shankaranarayanas case (supra) it was stated that motive on part of the person advancing consideration was most relevant in determining nature of transaction.

In Valliammals case (supra) it was held that the source of purchase money and the motive for benami purchase being by far the most important test to be applied.

In Binapani Pauls case (supra) it was held that the question as to whether a transaction evidences benami nature thereof is always difficult to answer and that entire circumstances have to be looked into.

In Vidyadhar Krishnaraos case (supra) it was held that in a case where it is asserted that an assignment in the name of the person is in reality for the benefit of another, the real test is the source whence the consideration came. But when it is not possible to obtain evidence which conclusively establishes or rebuts the allegation, the case must be dealt with on reasonable probabilities and legal inferences arising from proved or admitted facts.

In Smt. Tara Sundari Sens case (supra) the controversy arose whether the husband purchased the suit property in the benam of his wife or the wife purchased the properties with moneys she received from her husband by way of gift.

In K. K. Dass case (supra) it was held by this Court that where a husband with his cost constructs a building on wifes land knowing it to be his wifes then the wife is entitled to said building.

In this suit the plaintiff wife claimed that when she fled away from her fathers house in 1976 for marrying the defendant husband against the wishes of her parents, she took away 20 /25 Boris of gold and cash of Rs.5,000/- / Rs.6,000/- from her fathers house and that it was the source of the money for purchase of the suit property in 1981. The defendant husband, on the other hand, took the plea that he purchased the suit property with his own money as well as from his ancestors money but to avoid future dispute, if any, with his brothers and co-sharers he purchased the same in the benam of his wife. Both the parties led evidence on their respective claims i.e., claim of providing money from his / her fund for purchase of the suit property. Learned courts below meticulously examined the respective claims of the parties on the point of source of money. They came to the concurrent findings of fact on the basis of evidence of the parties, both oral and documentary, that the plaintiff wife miserably failed to establish that she had any money worth name for purchase of the suit property and that the defendant husband was able to establish that the property was purchased with money provided by him. Learned courts below also came to the concurrent findings of fact that the defendant husband was able to establish the motive for which he purchased the property in benam of his wife. They also took note that said benam purchase held in 1981 whereas the benami transactions (Prohibition) Act, 1988 came into operation only in 1988 having no respective effect. In view of the concurrent findings of fact of learned Courts below that the suit property was purchased with the money of the defendant husband in the benam of his wife on the grounds as disclosed in evidence I do not find any ground to hold said findings as perverse. In the case the plaintiff appellant wife no where took any plea that the property was purchased by her husband in her name for her benefit. However, I have already stated that it was established from the evidence on record as to why the husband purchased said property in the benam of his wife. In view of the discussions as made above it is apparent that learned Courts below also did not make any error in determining the issue regarding benami.

As a result, the appeal is hereby dismissed on contest.

However, I pass no order as to costs.

Send down Lower Court records along with a copy of this judgment to the Lower Court at the earliest.

Urgent photostat certified copy of this judgment be supplied to the learned counsels of the parties, if applied for.