Jaydayal Poddar & ANR Vs. Mst.
Bibi Hazra & Ors  INSC 190 (19 October 1973)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
CITATION: 1974 AIR 171 1974 SCR (1) 70 1974
SCC (1) 3
CITATOR INFO :
F 1977 SC 796 (26) RF 1978 SC1362 (35) R 1980
SC 727 (17)
Benami Transaction-Burden of proving that a
particular transaction is benami lies on the person who asserts it-This burden
has to be discharged by definite proof-Essence of benami is the intention of
parties-Circumstances to be taken into consideration for determining whether a
transaction is benami or real-Source of purchase money if the most important
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 raising an
inference of that fact. The essence of a benanii 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. 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 tests, uniformally
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 color; (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.
These indicia are not exhaustive and their
efficacy varies according to the facts of each case. Nevertheless 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. [91H-92E]
CIVIL APPELLATE JURISDICTION : CiVil Appeal No.
1759 of 1967.
From the judgment and Decree dated the 31st
October, 1962 of the Patna High Court in First Appeal No. 619 of 1958.
V. S. Desai and R. C. Pra, for the appellant.
L. M. Singhvi, U.P. Singh and A. T. Patra,
for respondent No. 1.
The Judgment of the Court was delivered by
SARKARIA, J.-This appeal by certificate is directed against the appellate
judgment and decree, dated the 31st October, 1962, of the High Court of
Judicature at Patna.
The plaintiffs-appellants instituted a suit
on 30-6-1956, in the Court of Subordinate Judge, Samastipur for a declaration
of title and possession in respect of a pucca house in Plot No. 216, Ward III
of Samastipur Municipality. It was alleged that Abdul Karim (Def.
91 No. 1) had out of his own funds purchased
this house in the name of his wife Mst. Hakimunnissa by a registered saledeed
dated 10-5-1941, from one Abdul Motilib. After the purchase, Defendant No.1,
who was in possession of the house, executed two mortgage deeds, date 6-1-1948
and 28-71948, in favour of his son-in-law, Abdul Latif (Defendent No. 3),
husband of Mst. Bibi Hazra (Defendant No. 2).
Abdulkarim (Defendant No. 1), in order to
clear the mortgage dues and for meeting other necessities, agreed to sell the
house to Plaintiff No. 1 for a consideration of Rs. 20,000/-. Pursuant to this
agreement of sale, Plaintiff No. 1 paid a sum of Rs. 10,209-4-0, by
installments to Defendant No. 1. Another sum of Rs. 2,990-12-0 was left with
Plaintiff No. 2, for payment of the mortgage debts of Defendant No. 3, Rs.
6,800/-, the balance of the price, was paid in cash to the vendor at the time
of the registration of the sale-deed on 25-5-1951. Thereafter Plaintiff No. 2
got this house mutuated in the Municipal records in her favour. Despite the
sale, defendants Nos, 1 to 3, acting in collusion, continued to be illegal
possession of the house.
Defendant No. 1, while admitting the
exception of the sale deed dated. 25-5-1951, pleaded that it was without
consideration. He however, asserted that the house had been purchased by him,
and that Mst. Hakimunnissa was only his benamidar. The suit was registered by
Bibi Hazra, Defendant No. 2, on the ground that the house had been purchased by
her mother, Mst. Hakimunnissa with her own money, she being a lady of
considerable means; and, on Mst. Hakimunnissa's death in 1944, she (Mst. Hazra)
inherited and came in possession of 12 annas share therein, while the remaining
4 annas share devolved on Defendant No.1 according to Mohammedan Law by which
the parties. were governed in matters of succession. Mst. Hazra further pleaded
that the sale deed. dated 24-5-1951 executed by Defendant No. 1. in favour of
Plaintiff No. 2, being a fictitious and collusive document, was ineffective qua
her share in the house.
The trial court held that "the disputed
house did really belong to Abdul Karim, and Mst. Hakimunnissa was his benamidar
in the sale deed (Ex.D/1) by which the house was acquired", and as such
Mst. Hazra (Defendant 2) had no interest in it. It further found that the sale-deed
in favour of Plaintiff No. 2 executed by Defendant No. 1 in respect of the suit
house was "valid, genuine and for a consideration". In the result, it
decreed the plaintiffs' suit.
In First Appeal No. 619 of 1958 preferred by
Mst. Hazra (Defendant No. 2), the High Court reversing the finding.of the trial
court, held that the plaintiffs had failed to show that Mst. Hakimunnissa in
whose name the sale-deed (Ex.
D/1) dated 10-5-1941 stood, was only a
benamidar and not the real purchaser In consequence, plaintiffs" suit was
dismissed with regard to 12 annas share of Bibi Hazra and a decree for joint
possession of 4 annas share of the vendor (Defendant 1) was passed in favour of
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 92
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 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 tests,
uniformally :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 color;
(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.
The question in the case is to be considered
in the light of the above indicia. As regards circumstance (1), the High Court
noted Abdul Karim (Defendant No.1) who was the best informed person to depose
to the source from which the purchase money was derived did not when examined
as D.W.7, specifically testify that the money had been paid 'from his personal
fund. In cross-examination, he admitted that he had only two kathas of
ancestral land with him; he had a tailoring. shop in which the entire capital
invested was to the tune of Rs. 1,000/-or Rs. 1,500/only; he did not keep any
accounts; he had six members of his family; his rental income was Rs. 12/per
month only. The High Court was thus right in holding that these facts admitted
by Abdul Karim (Defendant No.1) presented a very "gloomy picture of Abdul
Karim's financial condition and resources" and that he was not in a
position to invest Rs. 4300/for purchase of the house in ,question. The High
Court after a survey of the other evidence on the .record further came to the
conclusion that Mst. Hakimunnissa had means of her own and her first husband
and her son Moktadi by the first husband were well to do person. Moktadi had a
big, shop of ,tobacco, scent oil, zarda etc.
Mr. Desai, learned Counsel for the appellant
assails this finding of the High Court on the ground that it was based on the
oral evidence 93 of Abdul Rauf (D.W. 9) and Mohd. Shafiullah (D.W. 10), who
according to their own showing, had scant knowledge, about the affairs of Abdul
Karim, Mst. Hakimunnissa or Bibi Hazra. It was stressed that the trial court
had rightly discarded the useless evidence of these witnesses.
It is true that the evidence of these two witnesses
suffered from infirmities; but the finding of the High Court on this point is
not based on their evidence alone. The High Court also took into, account the
evidence of Bibi Hazara (D.W.13) who stated that she had received Rs. 1000/or
Rs. 1500/as her share of the cash on the death of her mother. She was in a
position to know about the financial condition of her father and mother.
According to her, Abdul Karim, had given up tailoring long ago and he was
running only a petty shop of tobacco, tikia, hardly earning Re. 1/or Rs. 2/per
day. Then there was the documentary evidence furnished by the sale-deed
(C-1/11) dated 1-4-42, executed by Mst. Hakimunnissa whereby she sold a house
to Chaudhary Kishan Chand. It was recited in this deed that in order to
purchase the house in dispute she (Hakimunnissa) had to incur certain debts for
payment of a part of toe consideration for the sale-deed (Exh.D/1). The sale in
question was effected about 11 months earlier on May 10,1941.
This recital being ante litem motam, was a
valuable piece of evidence to. show that the consideration of the sale was paid
by Mst. Hakimunnissa, the apparent purchaser of the house, from her own
Mr. Desai next contended that the recitals in
the sale-deed (Ex.D/ 1) not only neutralise the effect of the recitals in the
sale-deed (Ex.C(1)-II) but also show that the money for purchasing the house
must have been paid by Abdul Karim from his own pocket. Learned Counsel invited
our attention to two recitals in Exh.D/1 which are to the effect :
1. "I, the executant negotiated with
Abdul Karim the tenant aforesaid regarding the sale of the said house. The said
tenant on receiving the. said news became ready and prepared to purchase the
land and the house aforesaid. 1, the executant finalised the negotiation for
sale of the said house, with the said tenant and fixed the consideration money
at Rs. 4,300/-."
2. "Accordingly 1, the executant, have
held out full assurance and satisfaction to the claimant and her husband in
The husband of the claimant and the claimant
get this. deed 'of sale executed having confidence in and reliance on the,
assurance given by me, the executant, without making enquiry about encumbrance
and defect in title and without seeing the index." This contention does
not appear to be tenable. It is not proper to tear the above recitals out of
the context and read them in isolation. They must be read with the preceding
and succeeding contents of the document (Ex.D/1) and also the connected recitals
in the sale-deed (C-(1)-II) dated 1st April, 1942. In the latter deed,
Hakimunnissa 94 inter-alia stated that she had previously taken in mortagage
plot No. 216, per registered mortgage bond, dated 13-9-1940, from one Sh. Abdul
Motlib, and later on she had purchased that plot, including the house, for Rs.
4300/under the sale-deed, dated 10th May 1941 (Ex.D/1) from this Motlib.
It is significant to note that Abdul Karim
(Defendant No 1) had signed this deed as an attesting witness. In the deed
Ex.D/1, there is a clear reference to this previous mortgage executed in favour
of Mst. Hakimunnissa, and the vendor therein is repeatedly referring to Mst.
Hakimunnissa as the "claimant" (creditor); and the payment of these
past debts is mentioned as a reason for making the sale by the vendor Motlib.
The learned judges of the High Court have rightly construed these recitals as
indicative of Hakimunnissa being the real purchaser of the property.
The evidence with regard to possession of the
disputed house was to the effect that Abdul Karim and Hakimunnissa were in
occupation ,of the house both before and after the sale.
Even according to the trial court "such
joint possession was not at all material in the present case for determining
the benami character or otherwise of the transaction.
No evidence whatever was led to show that
there was any motive or reason for giving a benami character to the
transaction. Abdul Karim who had special knowledge of the circumstances bearing
on such motive, if any, did not say a word on this point. There was not even an
oblique suggestion that Abdul Karim was heavily under debt and in order to
avoid payment of such debts, he thought it fit to acquire the house in the name
of his wife.
No capital can be made out of the
circumstance that the negotiations for the purchase of the house were earned
out by Abdul Karim and a sum of Rs. 1700/towards the part of the price was paid
before the Sub-Registrar by him. It is in evidence that Hakimunnissa was a
Pardanishin lady, and naturally therefore it was her husband who used to look
after her affairs. Neither the actual delivery of Rs.
1700/before the Sub-Registrar by Abdul Karim,
nor the recitals made in Ex.D/1 could be accepted as evidence of Abdul Karim
being the real purchaser. He was acting only as an agent of his Pardanishin
wife. For the same reasons, no significance can be attached to the fact that
the sale-deed remained in the custody of the husband.
Learned Counsel next referred to the two
mortgage deeds, Exhs. C-1 and C(1)-1, dated 6th January, 1948 and 26th July,
1948, respectively, executed by Abdul Karim in favour of Abdul Latif (Defendant
No. 3). Emphasis was laid on the fact that Abdul Latif was the son-in-law of
Abdul Karim and the husband of Bibi Hazra (Defendant No. 2). We have also
adverted to the discussion of this evidence in the judgment of the Sub-ordinate
Judge. In agreement with the High Court, we think, that this evidence also is
not of a clinching character; firstly, Abdul Latif was not only the husband of
Bibi Hazra-, he was also the nephew of Abdul Karim; secondly, these mortgages
were brought into existence after the controversy had arisen. Bibi Hazra had
alleged that these transactions had been brought about by 95 her husband
calendestinely in collusion with her father. In this connection, it is
noteworthy that on the death of Hakimunnissa, her husband had also acquired 4
annas share in it. 'Mere was, therefore, ground to suspect that Abdul Karim,
taking advantage of his being a sharer in the house, brought into existence
these mortgages in collusion with his nephew, to grab the entire property of
Learned Counsel further referred to a
certified copy of the order, dated 22-11-1950 (Ex.E.1) and urged that this
order whereby Mst. Hakimunnisa is claim of her being the. real owner of the
attached house was dismissed, was a weighty piece of evidence admissible under
s. 13 of the Evidence Act, and, taken in conjunction with the judgment, dated
2211-1950, vide Ex.E(1) 1 and the recitals in the deed, was sufficient to show
that Mst.Hakimunnissa was only a benamidar of her husband.
It is common ground that the house in
question, at one time, belonged to Abdul Motlib and he had rented it out to
Abdul Karim, the original owner, Motlib, had mortgaged a part of this house to
one Fakira Lal Sahu on 28-9-1947. Sahu filed a money suit against four persons
(1) Abdul Karim; (2) Mst.
Hakimunnissa (3) Bibi Khatoon and (4) Sh.
Motlib inter-alia for the recovery of rent with interest for the period, 21-31941
to 20-3-1942. The suit was partly decreed against Abdul Karim alone and was
dismissed as against Hakimunnissa by the Munsiff on 1-3-1943 vide Exh.1-II.
Abdul Karim's appeal against that decree was dismissed and the decree of the
trial court with some modification, was maintained.
Sahu then took out execution of his decree
against the judgment-debtor, Abdul Karim. Mst. Hakimunnissa filed an
application under s.47 (under 0.21, r.57,) of the Code of Civil Procedure
claiming that the attached house in plot 216 was her exclusive property and her
husband had no right or interest in it. Her application was dismissed by the
Munsiff on 22-11-1943 with the finding that Mst.
Hakimunnissa was only a benamidar of the
judgment debtor, Abdul Karim. Her appeal against that order was disallowed by
the Appellate Court on 21-2-1944 vide Ex. 10.
Mr. Desai very fairly conceded that this
order, dated 22-111943, did not operate as res judicata because the Munsiff was
not competent to decide the subsequent suit from which the present appeal has
arisen; but he urged that this order had become final because no suit under
Order 21, Rule 103 of the Code of Civil Procedure was filed by Mst.
Hakimunnissa to establish her right, and, as such, this order, even if not
conclusive, was a very efficacious and presumptive proof of the fact that Mst.
Hakimunnissa was merely a benamidar in respect of the house in dispute.
The contention is attractive but does not
stand a close examination. It,is to be borne in mind that Mst.
Hakimunnissa died only a few months after the
dismissal of her appeal before the limitation for filling the suit under Order
21, Rule 103 had run out. Assuming this evidence was admissible under s.13 of
the Evidence Act, it was inconclusive and had been out-weighed by the other
determinative circumstances and the preponderating probability that the
purchase money came from Mst. Hakimunnissa and not from Abdul Karim.
96 The judgment Exh.E(1)in the rent suit
filed in 1949-50 by Abdul Karim against Sh. Mohd. Yakub with regard to a shop
attached to thedisputed house could not, as rightly observed by the High Court,
be used against Mst. Hakimunnissa who was not a party to those proceedings.
Defendant No. 2 had also brought on the
record some rent receipts and Municipal receipts, A(2)-II to A(5)-II.. Ex. A-11
stands in the name of Mst. Hakimunnissa. It evidences payment of platform tax
by her to the Municipality. It is true that the date on it was not
decipherable; but it was obvious that this document concerned the disputed
house and related to a period when Mst. Hakimunnissa was alive. This evidence
further strengthened the conclusion that Mst.
Hakiinunnissa in her life time, and, after
her death, her daughter Bibi Hazra, were in enjoyment of and dealing with the
house in dispute as owners thereof.
Keeping in view the totality of the
circumstances and the probabilities of the case, we have no hesitation in
holding that the plaintiffs appellants had failed to prove that Mst.
Hakimunnissa in whose name the sale-deed
(Ex.D/1) stood, was not the real purchaser but only a benamidar of her husband.
I in the result, we affirm the decision of
the High Court and dismiss this appeal with costs.
S.B.W. Appeal dismissed.