of Vrajlal J. Ganatra Vs. Hairs of Parshottam S. Shah  INSC 631 (30 April 1996)
Mohan Punchhi, K.T. Thomas Thomas, J.
heirs of a plaintiff (Vrajlal J. Ganatra) who suffered defeat both at the
original side as well as at the appellate stage (High Court of Gujarat) have
filed this appeal by special leave. Defendant in the suit (Parshottam S. Shah)
is now being substituted by his Legal heirs. The suit relates to a property
covered by Ext.66 sale-deed dated December 16, 1963. It was claimed to be the property
of the plaintiff even though the defendant was shown in the document as the
vendee. Suit was filed in 1981 for declaration of plaintiff's title to the suit
property and also for an injunction for restraining the defendant from
disturbing the possession of the plaintiff. Trial court while dismissing the
suit held that plaintiff failed to prove his title that he was the real owner
of the property and that plaintiff failed to establish that he was in
possession of it on the date of suit. High Court concurred with the finding of
the trial court regarding title but did not proceed to consider the other issue
regarding possession. However, the High Court further held that suit had been
barred by limitation.
case of the plaintiff, in short, is this: Defendant was a money-lender and
plaintiff was a dealer in land transactions. Plaintiff had borrowed money from
the defendant for purchasing lands and he had taken sale-deeds in the name of
the defendant as security to the loan amounts advanced and that on clearance of
loan amount defendant would reconvey the land concerned. In the case of Ext.66
sale-deed also, according to the plaintiff, the same pattern was followed as
defendant advanced a sum of Rs.13,000/- (Rupees thirteen thousand only) to the
plaintiff for buying the land and so it was incumbent on the defendant to reconvey
the property. As the expression "real owner" used In the case tends
to create some confusion. we would prefer to refer to the plaintiff as claimant
and the defendant as "the recorded owner" (or ostensible owner). The
High Court held that the intention when the sale-deed was taken, was nothing
other than making the defendant owner of the property although it might have
been thought that if plaintiff would pay the amount which defendant had shelled
out the property would be reconveyed to the plaintiff.
mention here itself that no contention has been advanced before the High Court
that the suit is not maintainable in view of Section 4(1) of the Benami
Transactions (Prohibition) Act, 1988. By the time the High Court delivered the
impugned judgment, the legal position which emerged by virtue of the decision
of this Court in Mithilesh Kumari vs. Prem Bihari Khare, 1989 (1) SCR 621 : JT
1989 (1) SC 275, to the effect that Section 4(1) of the said Act can apply to
the suit filed even prior to the coming into force of the said Act stood
over-ruled by the decision of a larger Bench of this Court in R. Rajgopal Reddy
(D) Lrs. and others vs. Padmini Chandrasekharan (D) by Lrs., JT 1995(2) SC 667,
as provisions of the Act have been held to be prospective only the sale-deed in
this case being of the year 1963 remains unaffected by the said Act.
question whether a particular sale is benami or not is largely one of fact.
Though there is no formula or acid test uniformly applicable it is well neigh
settled that the question depends predominantly upon the intention of the
person who paid the purchase money. For this, the burden of proof is on the
person who asserts that it is a benami transaction. However, if it is proved
that the purchase money came from a person other than the recorded owner
(ostensible owner) there can be a factual presumption at least in certain
cases, depending on facts, that the purchase was for the benefit of the person
who supplied purchase money. This is, of course, a rebuttable presumption (Bhim
Singh (D) by Lrs. and another vs. Ken singh, AIR 1980 SC 787; Controller of
Estate Duties, Lucknow vs. Aloke Mitra (AIR 1981 SC 102; His Highness Maharaja Pratap
Singh vs. Her Highness Maharani Sarojini Devi, 1994 Supple.(1) SCC 734).
this case, as it is admitted that defendant is the recorded owner and when
purchase money had not admittedly gone from the appellant for execution of the
sale-deed of 1963, it is an uphill task for the appellant to establish that the
sale-deed was taken benami for him. Of course, appellant had projected certain
circumstances to show that he was dealing in lands for which defendant had
advanced money to him.
counsel for the appellant tried to draw support from Ext.79 sale-deed dated
22.2.1962, which is a deed executed by another person in favour of the
defendant. There is no dispute that the purchase money for that transaction was
advanced by the defendant and the deed was executed in the name of the
defendant. It was an admitted case that defendant in that transaction was a benamidar.
Learned counsel for the appellants. therefore, contended that Ext. 79 not only
shows that there were similar dealings between the parties even earlier but it
has a perceptible impact on the crucial question relating to the transaction
involved in Ext.66 sale-deed.
Ext.79, far from helping the appellants, would help the respondents because the
document contained a clear recital that the land would remain with the
defendant as security for the amount advanced by him and when plaintiff paid
back all the amount outstanding from him, the defendant would give back the
property and execute a registered deed for that purpose. If this was the
safeguard adopted by the plaintiff relating to another sale transaction which
took place just one year prior to Ext.66, the fact that such a safeguard was
not adopted in the case of Ext.66 is sufficient to suggest that the intention
is a letter sent by the plaintiff to the defendant on 8.6.1968. It mentioned
about certain dealings as between them and plaintiff had acknowledged a balance
of Rs. 17,000/- as remaining outstanding with the defendant.
then said in the letter that since the suit property was sold to the defendant
plaintiff had not more concern about it. The following sentences in the letter
are important. "From now onwards nothing remains outstanding between us
and the account between us stands cleared off.
decision is agreed upon by both of us and it is finally settled by mutual
consent." Of course, plaintiff had disowned the said document but the
trial court and the High Court have found it proved. Further, plaintiff had
admitted his signature therein.
reliance was sought to be placed on Ext.160 letter sent by defendant to the
plaintiff on 23.12.1975. it is of no avail to the appellants. It is unnecessary
for us to go into the other documents referred to by the counsel as none of
them helps the appellants to establish that defendant ever entertained the idea
that property should belong to the plaintiff.
counsel pointed out that the High Court has failed to decide the question of
possession of land and contended that in fact the land was in the possession of
the plaintiff and continues to be in the possession of the appellants. Trial
court found that plaintiff had failed to prove that the property was in his
possession. High Court would have considered it superfluous to go into the
question of possession. As the plaintiff claimed possession only as the true
owner of the land, it is not necessary to consider the question of possession
separately unless his title was upheld by the Court. The presumption is that
possession would fellow title. That presumption is stronger in this case as we
noted that the property remained as a bare land.
particular act of possession could normally be pointed to establish possession.
Non-consideration of the question of possession in such a situation is
inconsequential though we are in agreement with the finding that plaintiff had
failed to establish his possession on the land.
therefore, dismiss this appeal. No costs.