Binapani Paul Vs. Pratima Ghosh & Ors  Insc 467 (27 April 2007)
S.B. Sinha & Markandey Katju
S.B. SINHA, J :
One Dr. Ashutosh Ghosh (Dr. Ghosh), a Physician practising at Rangoon was a
prosperous person. He purchased two immovable properties in Calcutta in the
year 1927 situate at 79/3-A and 79/3-B, Lower Circular Road, Calcutta, in his
own name. Suprovabala was his wife. They at the relevant time had seven
daughters, including the appellant herein and a son named, Amal. Respondent
Nos. 1 and 2 are his wife and daughter.
Suprovabala intended to purchase the premises situate at No. 24, Convent
Road, Calcutta belonging to the estate of Late Edwin St. Clair Vallentine.
She executed a power of attorney in favour of one Atul Chandra Ghosh,
brother of Dr. Ghosh, the relevant portion whereof reads as under:
"Whereas I have decided to purchase premises No.24, Convent Road,
Calcutta, belongings to the Estate of Late Mr. Edwin St. Chair Vallente at the
price of Rs.26000/- (Rupees Twenty Six thousand only) but the agreement for
sale has not yet been entered into with the Administration General of Bengal as
Administrator to the Estate of Edwin St. Clair Vallente now therefore know. Yet
that I hereby appoint Atul Chandra Ghosh of 79/3- A, Lower Circular Road, Calcutta
my attorney to do and execute for me and in my name and all acts, matters and
things that may be necessary in order to complete the said purchase and
particularly the following: In witness whereof I set and subscribe my hand and
seal at Rangoon this 23rd day of September 1935 in the presence of Date:
23.09.1935 No.1986 Date of Registry: 17.10.1935 Sd/- Smt. Supravabla Ghosh Sd/-
K.N. Ganguli Advocate High Court & Councilor Corporation of Rangoon Sd/-
S.N. Ganduly, Advocate, High Court Sd/- Ashutosh Ghosh M.B. (Cal) Medical
The said power of attorney, however, was preceded and followed by two
telegrams of Dr. Ghosh addressed to his brother in relation to execution
thereof as also purchase of the said property. The said power of attorney was
executed before a Magistrate at Rangoon. Dr. Ghosh was an attesting witness
therein. Interestingly, Suprovabala described herself as daughter of Babu
Rangalal Ghosh and not the wife of Dr. Ghosh therein. A registered indenture
was executed on 16.11.1935 by the Administrator General of Bengal to the estate
of Edurn St. Clair Vallentine in favour of Suprovabala for a sum of Rs.
26,000/-. Indisputably, during the life time of Dr. Ghosh, the name of
Suprovabala was mutated. She had all along been in possession of the said
property. Dr. Ghosh died in Rangoon in the year 1940.
Suprovabala continued to reside in the suit premises. She died on 26.05.1942
leaving, as indicated hereinbefore, seven daughters and son Amal. Amal was
married to Respondent No. 1 herein in 1946.
In the year 1958, the daughters of Suprovabala got their names mutated in
place of their mother. Amal objected thereto, but his objection was rejected.
Marriage of four sisters of Amal took place in the suit premises during the
period 1944 to 1970. Although initially all the sisters and the brother were
living together in the said house, inter alia, after their marriage the
daughters of Suprovabala started living at their respective husbands' places.
However, three sisters allegedly continued to live in the said house till May,
1958 but they had to leave it because of ill-treatment of Amal and his wife. It
appears that in the year 1964, two unmarried daughters of Suprovabala who had
been living there were also compelled to leave the house. They filed a suit for
maintenance with liberty to claim their right to take appropriate legal action
to recover their share of the said premises at an appropriate time, which was
allowed by the High Court.
Three out of the seven daughters of Dr. Ghosh filed a suit for partition
against Amal on 19.09.1973 claiming 3/7th share of the property of their
mother, a final decree for partition as also a decree for accounts.
Amal in his written statement filed in the suit inter alia contended that
Suprovabala was benamdar of Dr. Ghosh. Suprovabala, therefore, had only a
limited interest under the Hindu Women's Right to Property Act, 1937 and on her
death Amal became the absolute owner. Amal died during pendency of the suit
whereupon Respondent Nos. 1 and 2 were substituted in his place.
Before the learned Trial Judge, plaintiff - Binapani examined herself as
PW-3. A common relation of the parties being Chandi Charan Ghosh examined
himself as PW-4. Respondent No. 1 did not examine herself.
Putul Ghosh, daughter of Amal who was born only in 1954 examined herself as
The learned Trial Judge decreed the suit holding that Dr. Ghosh intended to
purchase the said property for the benefit of his wife. The Trial Court in its
judgment opined that if Dr. Ghosh wanted to purchase the property for himself,
there was no necessity for execution of power of attorney by Suprovabala in
favour of Atul Chandra Ghosh. It was noticed that the power of attorney had
been attested by Dr. Ghosh which is a pointer to show that the property was
purchased by him for the benefit of his wife.
Circumstances surrounding the same, it was held, also led to the said
concusion. It was, therefore, not held to be a case of benami transaction. A
first appeal was preferred thereagainst before the High Court by Respondent
Nos. 1 and 2. A Division Bench of the High Court although completed hearing of
the appeal on 25.01.2002, delivered judgment after 19 months, i.e., on
The High Court opined that:
(i) it was for the plaintiff to prove that Dr. Ghosh purchased the property
for the benefit of his wife;
(ii) purchase by Suprovabala through an attorney does not negative the
nature of transaction being a benami one;
(iii) mutation of names of all the heirs of Suprovabala was of no
(iv) Dr. Ghosh could not have gifted the property in favour of his wife
being impermissible under the Dayabhaga School of Hindu Law.
Mr. S.B. Sanyal, learned senior counsel appearing on behalf of the
appellant, submitted that the High Court committed a manifest error in passing
the impugned judgment insofar:
(i) the onus of proof had wrongly been placed upon the plaintiff;
(ii) the defendant had not been able to show any motive for the benami
(iii) the presumption that an apparent state of affairs is the real state of
affairs has not been rebutted by adduction of any cogent evidence.
(iv) contribution of purchase money is only one of the factors for proving
benami transaction but intention also plays a significant role in relation
thereto which was required to be determined having regard to the surrounding
circumstances, the relationship of the parties, the motive governing their
action and the subsequent conduct of the parties.
(v) Putul Ghosh (DW-1) cannot be said to have any knowledge about the
transaction and there was no reason as to why her mother Pratima Ghosh did not
examine herself as a witness.
Mr. Devadatt Kamat, learned counsel appearing on behalf of Respondent Nos. 4
to 7 supplemented the argument of Mr. Sanyal stating that the High Court
cursorily dealt with the question of intention in relation to the transaction
in question. Our attention has also been drawn to Section 5 of the Power of
Attorney Act, 1882.
Mr. Bhaskar P. Gupta, learned senior counsel appearing on behalf of Respondent
Nos. 1 and 2, on the other hand, would submit that:
(i) the suit property having been acquired in the year 1935, as purchases of
property in the benami name of wives being prevalent at the relevant time, the
case was required to be considered from that angle.
(ii) a transaction in benami may be entered into for no apparent reason.
(iii) doctrine of advancement has no application in India.
(iv) Benami Transactions (Prohibition) Act, 1988 has no retrospective
effect. The source of money being an important factor for determining benami
nature of transaction, the onus lay on the plaintiffs.
(v) the parties being governed by the Dayabhaga School of Hindu Law, Dr.
Ghosh could not have made a gift of immovable property in favour of his wife.
Before embarking upon the rival contentions of the parties, we may also
notice that Dr. Ghosh had a life insurance. Suprovabala was his nominee and
after his death, the entire amount of insurance was received by her.
A question as to whether a transaction evidences a benami nature thereof is
always difficult to answer. It is a case where despite some evidence brought on
records by the plaintiffs that Suprovabala paid the consideration amount or at
least a part of it, we may proceed to determine the issues between the parties
on the premise that the amount of consideration was provided by Dr. Ghosh. A
person may for various reasons intend to purchase a property in the name of his
wife. It may be for one reason or the other. There may or may not be a practice
in respect thereto. A purported prevalent practice in this behalf, as was
observed by the Judicial Committee, in Sura Lakshmiah Chetty and Others v.
Kothandarama Pillai [AIR 1925 PC 121] and Gopeekrist Gosain v.
Gungapersaud Gosain [(1854) 6 Moore's Indian Appeals 53], is in our opinion
not of much importance. A court of law is required to determine such a
question. Without anything more, it cannot determine the same on the basis of
such an alleged practice only.
Dr. Ghosh was a prosperous person. He must be a medical practitioner of
repute. He had purchased two very valuable properties in Calcutta in quick
succession being situate at 79/3-A and 79/3-B, Lower Circular Road, Calcutta,
which is a very prime area in the town of Calcutta.
The property in question was purchased in 1935. Admittedly, renovations were
made in the year 1938. He died in the year 1940 at Rangoon. At that point of
time, none of his children was married. He had seven daughters. In 1935, Hindu
Women's Right to Property Act, 1937 did not come into force.
He, therefore, might have been of the opinion that in case of his early
death, which appears to have been his premonition, something should be kept
apart for his wife and daughters. When a person develops such an intention, it
would be opposed to the essential characteristics of a benami transaction.
He furthermore was not a debtor. He was not required to avoid any liability.
He had no apparent motive for entering into a benami transaction. The
plaintiffs' case that he had done so for the benefit of his wife, therefore,
must be considered from that angle.
Amal appears to be the eldest amongst the children. When a son is the eldest
amongst the children, expectation of a father will always be that on his death,
he would look after his mother and sisters. Son would perform his duties not
only by providing maintenance to the daughters, to which they were otherwise
entitled to, but also they were to be married. Dr Ghosh's eagerness to purchase
the property is evidenced by two telegrams dated 20th and 24th September, 1935.
Mr. Gupta's submission that the said telegrams are relevant to show Dr.
Ghosh's personal involvement in the transaction may not be of much
significance. They were at Rangoon. Negotiations for purchase were to be held
with the Administrator General of Bengal. Earnest money was to be deposited.
The deed was to be drawn up. In those days, a Hindu wife was supposed to
maintain some 'purdah'. We do not know whether she knew English or not. She,
therefore, was not expected to draft a telegram and go to post office for the
purpose of transmission thereof. But, the power of attorney executed by her
plays an important role. The power of attorney must have also been drafted at
the behest of Dr. Ghosh. Ordinarily, Suprovabala would be described as the wife
of Dr. Ghosh. She was not.
She was described as the daughter of Babu Rangalal Ghosh. Dr. Ghosh himself
was an attesting witness. He being in the position of husband and if we accept
the case of the defendants respondents that he intended to have a benami
transaction, ordinarily, he would not get his wife described as daughter of
somebody instead of his own wife. Such unusual step on the part of Dr. Ghosh
leads to one conclusion that he intended to purchase the property for the
benefit of his wife. The recitals made in the power of attorney are also of
much significance. It was categorically stated that it was Suprovabala who had
decided to purchase the said property and it was she who was appointing her
husband's brother as her attorney.
In Tara Sundari Sen v. Pasupati Kumar Banerjee & Ors. [1974 CLJ 370], it
"The only purpose of Nagendra Nath Ganguly having been a signatory to
the said document must have been to represent to the world at large that the
property was being acquired by Sm. Shantabala as her absolute property and that
her husband had no right, title or interest in the same"
It was further observed therein:
"The significance and value of these indisputable facts have to be
carefully assessed. It is common case that the ultimate source of the money was
the income and savings of Nagendra Nath Ganguly.
The plaintiff contends that Nagendra Nath made a gift of the money of his
wife Shantabala to enable her to acquire the properties. If that be so, the
properties were Shantabala's Ajoutuka Stridhana.
That Nagendra made gift out of his funds does not in any way prejudice the
plaintiff's case. Once the gift was made, if it was made at all, the money
belonged absolutely to Shantabala and the properties she purchased were hers
and hers alone.
That Nagendra engaged a contractor or a supervisor for construction of a
structure on the land purchased by Shantabala or that he made payments to the
contractor or the supervisor will not by itself be any evidence of his
The husband of a Hindu lady living in a common matrimonial home usually
manages and maintains her properties. The Court can and ought to take judicial
notice of the fact that ordinarily in a Hindu household the husband deals with
strangers and trademen. Therefore, the fact that payments were made by Nagendra
Nath Ganguly is not inconsistent with the case that the premises belonged to
In a given situation, execution of a power of attorney may not be of
importance but then the backdrop of events and the manner in which the power of
attorney was drafted as well as the very fact that Dr. Ghosh himself became an
attesting witness thereto, the same plays very significant role. If in the
light of the so-called practice as then existed, i.e., to purchase property in
the name of his wife, Dr. Ghosh intended to enter into a benami transaction,
his intention, therefor, would have been clear and unambiguous or in any event,
the same would have been explicit from the surrounding circumstances. They were
not. Moreover, immediately after the purchase, the name of Suprovabala was
mutated. She started paying tax. There is no evidence to show that Dr. Ghosh
took an active role except providing for the amount in regard to the
construction of the house. Evidence on records clearly show that Suprovabala
had also been looking after the constructions of the house along with Chandi
Charan Ghosh (PW-4).
The fact, which we have noticed hereinbefore, viz., that an insurance was
also made in her name is also a pointer to show that Dr. Ghosh intended to
provide sufficient money at the hands of his wife. [See Ext. A (13)]
Ordinarily, a son would be made a nominee. We must place on record the social
condition as thence prevailing, viz., a son under the law was bound to maintain
his family and, therefore, the entire property at the disposal of the father
would be given to the son.
We do not have any direct evidence of conclusive nature in this regard
before us. We must, therefore, deal with the matter on reasonable probabilities
and legal inferences.
Dr. Ghosh indisputably was a person having a superior knowledge and
understanding. He was holding a responsible position in the society. He was in
a noble profession. When he made attestation of the deed of the power of attorney
keeping in view the fact that he was the husband there cannot be any doubt that
he fully understood in regard to the nature of the transaction as also the
contents and merits thereof.
We may at this juncture also notice a Constitution Bench decision of this
Court in Kanakarathanammal v. V.S. Loganatha Mudaliar [AIR 1965 SC 271 : (1964)
6 SCR 1] wherein this Court had an occasion to deal with the question of
providing money to the wife, the purpose for purchase of the property vis-`-vis
a transaction which was benami in nature. For the purpose of inferring
acknowledgement and/ or admission by husband that the property was purchased by
his wife, this Court, upon taking into consideration the provisions of Mysore
Hindu Law Women's Rights Act (10 of 1933), opined:
"12. We have carefully considered the arguments thus presented to us by
the respective parties and we are satisfied that it would be straining the
language of Section 10(2)(b) to hold that the property purchased in the name of
the wife with the money gifted to her by her husband should be taken to amount
to a property gifted under Section 10(2)(b). The argument about the substance
of the transaction is of no assistance in the present case, because the
requirement of Section 10(2)(b) is that the property which is the
subject-matter of devolution must itself be a gift from the husband to the
wife. Can we say that the property purchased under the sale deed was such a
gift from the husband to his wife? The answer to this question must clearly be
in the negative. With what funds the property is purchased by the female is
irrelevant for the purpose of Section 10(2)(d); so too the source the title to
the fund with which the said property was purchased. All that is relevant to
enquire is: has the property been purchased by the female, or has it been
gifted to her by her husband? Now, it seems clear that in deciding under which
class of properties specified by clauses (b) &(d) of Section 10(2) the
present property falls, it would not be possible to entertain the argument that
we must treat the gift of the money and the purchase of the property as one
transaction and hold on that basis that the property itself has been gifted by
the husband to his wife. The obvious question to ask in this connection is, has
the property been gifted by the husband to his wife, and quite clearly a gift
of immovable property worth more than Rs 100 can be made only by registered
deed. The enquiry as to whether the property was purchased with the money given
by the husband to the wife would in that sense be foreign to Section 10 (2)(d)
gift of money which would fall under Section 10(2)(b) if converted into another
kind of property would not help to take the property under the same clause,
because the converted property assumes a different character and falls under
Section 10(2)(d). Take a case where the husband gifts a house to his wife, and
later, the wife sells the house and purchases land with the proceeds realised
from the said sale.
It is, we think, difficult to accede to the argument that the land purchased
with the sale-proceeds of the house should, like the house itself, be treated
as a gift from the husband to the wife; but that is exactly what the appellants
argument; will inevitably mean. The gift that is contemplated by Section
10(2)(b) must be a gift of the very property in specie made by the husband or
other relations therein mentioned. Therefore, we are satisfied that the trial
court was right in coming to the conclusion that even if the property belonged
to the appellants mother, her failure to implead her brothers who would inherit
the property along with her makes the suit incompetent. It is true that this
question had not been considered by the High Court, but since it is a pure
point of law depending upon the construction of Section 10 of the Act, we do
not think it necessary to remand the case for that purpose to the High Court"
Mr. Gupta made an endeavour to distinguish the said decision on fact of the
matter submitting that therein the father wrote a large number of letters which
included a discussion of the wife's will where he had acknowledged the wife's
title to the property, but we have to consider the crux of the matter to
understand the underlying principle laid down therein.
Acceptance of acknowledgement of title comes in various forms. It may be
before the transaction is entered into and may be subsequent thereto.
The court has to gather the intention of the concerned parties on the basis
of the circumstances surrounding the transaction and not from the conduct of
the parties only at a subsequent stage. It may be true that ipso jure
acknowledgement of title would mean the same should be only after the title is
acquired, but, whether addressing ourselves to a question of this nature, viz.,
as to whether Dr. Ghosh intended to enter into a benami transaction in the name
of his wife, either surrounding circumstances leading to the inference that he
had no such intention must be gathered from the totality of the circumstances
both preceding and subsequent to the transaction in question or if the
intention of the person providing for the fund for purchasing the property has
a major role to play, how it was given also assumes some significance. Apart
from the fact that Dr. Ghosh himself was keen to see that the property is
purchased for the benefit of his wife, we must notice that it was also mutated
in her name. When a mutation takes place with the knowledge of the husband,
although not conclusive, would provide for a link in the chain.
To decipher the intention of the parties, this Court must go back to the
societal situation as was prevailing in 1935. Dr. Ghosh as a man of ordinary
prudence wanted to make provision to protect and insure the welfare of his
seven daughters and wife. In a case of this nature, the answer to such a
question has to be in the affirmative. Question of intention is always
relatable and peculiar to the facts of each case. [See Nawab Mirza Mohammad
Sadiq Ali Khan and Others v. Nawab Fakr Jahan Begam and Another AIR 1932 PC 13]
In Chittaluri Sitamma and another v. Saphar Sitapatirao and others [AIR 1938
Madras 8], it was held:
"The mere suspicion that the purchases might not have wholly been made
with the lady's money will certainly not suffice to establish that the
purchases were benami, nor even the suspicion that moneys belonging to
Jagannadha Rao whether in a smaller measure or a larger measure, must have also
contributed to these purchases. Even in cases where there is positive evidence
that money had been contributed by the husband and not by the wife, that
circumstance is not conclusive in favour of the benami character of the
transaction though it is an important character"
The learned counsel for both the parties have relied on a decision of this
Court in Thakur Bhim Singh (Dead) By LRs and Another v. Thakur Kan Singh
[(1980) 3 SCC 72] wherein it has been held that the true character of a
transaction is governed by the intention of the person who contributed the
purchase money and the question as to what his intention was, has to decided
(a) Surrounding circumstances (b) Relationship of the parties (c) Motives
governing their action in bringing about the transaction and (d) Their
All the four factors stated may have to be considered cumulatively.
The relationship between the parties was husband and wife. Primary motive of
the transaction was security for the wife and seven minor daughters as they
were not protected by the law as then prevailing. The legal position obtaining
at the relevant time may be considered to be a relevant factor for proving
peculiar circumstances existing and the conduct of Dr. Ghosh which is
demonstrated by his having signed the registered power of attorney.
This aspect of the matter has been considered by this Court in Jaydayal
Poddar (Deceased) Through L.Rs. and Another v. Mst. Bibi Hazira and Others
[(1974) 1 SCC 3], wherein this Court held:
"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 purchaser or
transferee in the deed, starts with the initial presumption in his favour that
the apparent state of affairs is the real state of 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, it 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
Source of money had never been the sole consideration. It is merely one of
the relevant considerations but not determinative in character. [See Thulasi
Ammal v. Official Receiver, Coimbator AIR 1934 Madras 671] In Protimarani Debi
and Anr. v. Patitpaban Mukherjee and Ors. [60 CWN 886], the Calcutta High Court
"The correct proposition was stated in Official Assignee of Madras vs.
Natesha Gramani (1) (A.I.R. 1927 Madras 194). There is no presumption that when
a property stands in the name of a female the Court will immediately jump to
the conclusion without any proof that it really belongs to the husband of the
female. Before such a presumption is raised or attracted it is necessary for
the person who wants to make out that the property is not the property of the
female, in whose name the document stands, to establish the fact that the
consideration money for the purpose had come from the husband."
It will be useful at this juncture to notice a judgment of the Calcutta High
Court in K.K. Das, Receiver and others v. Sm. Amina Khatun Bibi and another
[AIR 1940 Cal 356], wherein it was held that where a husband provides for the
money for construction of a building on a land which is in the name of his
wife, he did not intend to reserve any right in the structures raised therein.
In 1935, the appellant herein was a minor. Whether she was aged 9 years or
14 years, thus, is immaterial. She, however, had the occasion to know something
about the property from her mother or father. Dr. Ghosh expired only in 1940
and Suprovabala died in 1942. If the children had no knowledge about the title
of her mother, there would not have been any occasion for them to make any
application for mutation of their names.
Amal was marred in 1946. Allegedly, he and his wife started mal-treating the
sisters. Three of them, as noticed hereinbefore, were yet to be married.
The dispute between the parties rose to such a pass that three of the
sisters had to leave the house. They had to seek for a shelter somewhere else.
So long as the relationship between the parties was good, evidently, no problem
arose. The mutation in the name of the daughters, therefore, assumes
considerable significance. It is not a coincidence that three daughters had to
leave the house and an application for mutation was filed in the year 1958.
Amal objected thereto and it would not be a matter beyond anybody's
comprehension that he had fought out the same bitterly. He must have done it
and despite the same mutation was done in the name of all. Only a suggestion
was given to PW-4 that the name of all the co-sharers was mutated only because
husband of one of the sisters was in Calcutta Municipal Corporation. If that be
so, it was expected of Amal to prefer an appeal thereagainst. It was expected
that he would file a suit for declaration to assert his own title as he did in
Mr. Gupta has relied upon a decision of the Patna High Court in Shahdeo
Karan Singh and others v. Usman Ali Khan [AIR 1939 Patna 462] wherein it was
held that obtaining mutation of names do not establish a gift.
This may be so. But, however, in this case, we are concerned with the
conduct of the parties.
The fact that Amal allowed the order of mutation to attain finality, thus,
would also be a pointer to suggest that despite such bitter relationship
between the parties he accepted the same; more so, when mutation of one's name
in the Municipal Corporation confers upon him a variety of rights and
obligations. He had rights and obligations in relation thereto because,
according to him, in relation to the said property vis-`-vis Calcutta Municipal
Corporation, he was residing with his wife, he allegedly inducted tenants and
had been realizing rent from them.
Tenants could have denied his title. He would not have been given permission
to make any additions or alterations. He, in absence of an order of mutation,
might not be given other amenities, if he had filed such an application in his
own name. He, therefore, knew that mutation of names of all the parties in the
Calcutta Municipal Corporation may bring forth to him many obstacles in future
in the enjoyment of the property. At least he could have taken such a step even
after the suit filed by two of the sisters for maintenance. The suit was
decreed. Even in the said suit, the right to claim partition in the properties
had been kept reserved.
We have seen hereinbefore that the appellant examined herself as a witness.
The wife of Amal even did not do so. An adverse inference should be drawn
In Tulsi and Others v. Chandrika Prasad and Others [(2006) 8 SCC 322], this
"Before the courts below, the Appellant No. 1 did not examine herself.
The Respondents categorically averred in the plaint that the mortgage amount
was tendered to her as also to her husband. Having regard to the peculiar facts
and circumstances of this case, we are of the opinion that she should have
examined herself to deny such tender.
In Sardar Gurbakhsh Singh v. Gurdial Singh and Another [AIR 1927 PC 230],
the Privy Council emphasized the need of examination of the parties as
witnesses. [See also Martand Pandharinath v. Radhabai, AIR 1931 Bom 97 and Sri
Sudhir Ranjan Paul v. Sri Chhatter Singh Baid & Anr., Cal LT 1999(3) HC
Daughter of Respondent No. 1 (Respondent No. 2) who was born in 1954
examined herself as DW-1. She evidently had no knowledge about the transaction.
She could not have any. At least it was expected that Respondent No. 1 might
have gathered some knowledge keeping in view the conduct of her husband
vis-`-vis the sisters in relation to the property. Even otherwise, she was a
party to the suit. No evidence, worh the name, therefore, had been adduced on
behalf of Respondent No. 1.
Interestingly, Amal pleaded ouster. If ouster is to be pleaded, the title
has to be acknowledged. Once such a plea is taken, irrespective of the fact
that as to whether any other plea is raised or not, conduct of the parties
would be material. If, therefore, plea of ouster is not established, a' fortiori
the title of other co-sharers must be held to have been accepted.
In T. Anjanappa and Others v. Somalingappa and Another [(2006) 7 SCC 570],
it was held:
"12. The concept of adverse possession contemplates a hostile
possession i.e. a possession which is expressly or impliedly in denial of the
title of the true owner. Possession to be adverse must be possession by a
person who does not acknowledge the other's rights but denies them.
The principle of law is firmly established that a person who bases his title
on adverse possession must show by clear and unequivocal evidence that his
possession was hostile to the real owner and amounted to denial of his title to
the property claimed. For deciding whether the alleged acts of a person
constituted adverse possession, the animus of the person doing those acts is
the most crucial factor. Adverse possession is commenced in wrong and is aimed
against right. A person is said to hold the property adversely to the real
owner when that person in denial of the owner's right excluded him from the
enjoyment of his property."
It was further held:
"21. The High Court has erred in holding that even if the defendants
claim adverse possession, they do not have to prove who is the true owner and
even if they had believed that the Government was the true owner and not the
plaintiffs, the same was inconsequential. Obviously, the requirements of
proving adverse possession have not been established. If the defendants are not
sure who is the true owner the question of their being in hostile possession
and the question of denying title of the true owner do not arise"
[See also See also Govindammal v. R. Perumal Chettiar & Ors., (2006) 11
SCC 600 and P.T. Munichikkanna Reddy & Ors. v. Revamma and Ors., Civil
Appeal No. 7062 of 2000 decided on 24th April, 2007] Amal, therefore, could not
have turned round and challenged the title of the appellant and other
respondents. [See Syed Abdul Khader v. Rami Reddy and Others (1979) 2 SCC 601]
PW-3 in her evidence made three significant statements:
(i) The property was purchased for the benefit of the mother without keeping
any financial interest;
(ii) During the life time of her father, her mother used to exercise right,
title and interest of the property and she continued to do so even after her
(iii) Her mother used to say that the property belonged to her.
PW-4 Chandi Charan Ghosh is a common relation. According to him, Dr. Ghosh
acknowledged the title of his wife before him. We may not rely on his evidence
in its entirety but we intend to emphasise that at least some evidence has been
adduced on behalf of the appellant whereas no evidence, worth the name, has
been adduced on behalf of the defendants respondents. DW-1, as noticed
hereinbefore, having born in 1954, could not have any personal knowledge either
in regard to the transaction or in regard to the management of the property by
Suprovabala whatsoever. She was even only four years old when the name of all
co-sharers was mutated in the records of the Calcutta Municipal Corporation.
She, however, admitted that there are two other houses standing in the name of
Dr. Ghosh. She even could not say anything about the power of attorney. She
accepted that the suit house was in the name of Suprovabala till 1958. She accepted
that her father objected to the mutation but the same was granted and no
further step had been taken. Although she claimed that she had been looking
after the affairs, she could not give any details about the purported
litigations as against the tenants initiated by her father.
Reliance placed by Mr. Gupta on Hindu Women's Right to Property Act, 1937 is
misplaced as the property was purchased in the year 1935. The said Act had no
application at that point of time. There, however, cannot be any doubt whatsoever
in regard to the legal position that in respect of other properties of Dr.
Ghosh, she had a limited interest.
Reliance by the High Court upon Mulla's Hindu Law for the proposition that
husband could not give immovable property as stridhan to his wife, in our
opinion, is wholly misplaced. Mulla has relied upon a decision of the Madras
High Court in Venkata Rama Rau v. Venkata Suriya Rau and Another [ILR (1877)
Madras 281 at 286]. What Mulla in fact says is that any gift or immovable
property under Dayabhaga law would not become wife's stridhan. It is, however,
not in dispute that the amount necessary for purchasing an immovable property
can be a subject matter of gift by a person in favour of his wife. [See K.K.
Das (supra)] We are also really not concerned with such a situation as the
situation had undergone a sea change after coming into force of the Transfer of
Property Act. The Transfer of Property Act prescribes that any clog on transfer
of property right to transfer would be void. Dayabhaga does not prohibit gift
of immovable property in favour of his wife by her husband. It merely says that
Dayabhaga did not recognize it to be her stridhan. It was only for the purpose
of inheritance and succession. The same has nothing to do with the Benami Transaction
of the Property and to determine the nature of transaction.
Burden of proof as regards the benami nature of transaction was also on the
respondent. This aspect of the matter has been considered by this Court in
Valliammal (D) By LRS. v. Subramaniam and Others [(2004) 7 SCC 233] wherein a
Division Bench of this Court held:
"13. This Court in a number of judgments has held that it is well
established that burden of proving that a particular sale is benami lies on the
person who alleges the transaction to be a benami. The essence of a benami
transaction is the intention of the party or parties concerned and often, 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.
Refer to Jaydayal Poddar v. Bibi Hazra, Krishnanand Agnihotri v. State of
M.P., Thakur Bhim Singh v. Thakur Kan Singh, Pratap Singh v.
Sarojini Devi and Heirs of Vrajlal J. Ganatra v.
Heirs of Parshottam S. Shah. It has been held in the judgments referred to
above that the question whether a particular sale is a benami or not, is largely
one of fact, and for determining the question no absolute formulas or acid
test, uniformly applicable in all situations can be laid.
After saying so, this Court spelt out the following six circumstances which
can be taken as a guide to determine the nature of the transaction:
(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. (Jaydayal
Poddar v. Bibi Hazra1, SCC p. 7, para 6)
14. The above indicia are not exhaustive and their efficacy varies according
to the facts of each case.
Nevertheless, the source from where the purchase money came and the motive
why the property was purchased benami are by far the most important tests for
determining whether the sale standing in the name of one person, is in reality
for the benefit of another. We would examine the present transaction on the
touchstone of the above two indicia.
*** *** ***
18. It is well settled that intention of the parties is the essence of the
benami transaction and the money must have been provided by the party invoking
the doctrine of benami. The evidence shows clearly that the original plaintiff
did not have any justification for purchasing the property in the name of
Ramayee Ammal. The reason given by him is not at all acceptable. The source of
money is not at all traceable to the plaintiff. No person named in the plaint
or anyone else was examined as a witness. The failure of the plaintiff to
examine the relevant witnesses completely demolishes his case."
For the reasons aforementioned, the
impugned judgment cannot be sustained which is set aside accordingly. The
judgment of the Trial Court is restored. The appeal is allowed. In the peculiar
facts and circumstances of this case, however, there shall be no order as to