Bhim Singh & ANR Vs. Kan Singh
[1979] INSC 276 (21 December 1979)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S.
(J) SHINGAL, P.N.
CITATION: 1980 AIR 727 1980 SCR (2) 628 1980
SCC (3) 72
CITATOR INFO :
RF 1981 SC 102 (33)
ACT:
Benami-What is-Tests for deciding benami
transactions.
HEADNOTE:
Plaintiff no. 1 and plaintiff no. 2 were
father and son while defendant was the brother of plaintiff no. 1. The
plaintiffs in their suit against the defendant claimed that the suit house in
which the defendant was living, belonged to them by virtue of a patta issued in
their names. They alleged that the deceased brother of plaintiff no. 1, who
remained a bachelor till his death, loved plaintiff no. 2 as his son and had
thought of adopting plaintiff no. 2 but since he died all of a sudden it could
not be done. The defendant on the other hand claimed that he and his deceased
brother lived as members of a joint family after the partition of their family
that as a result of the joint efforts of himself and his deceased brother the
Maharaja, of Bikaner sanctioned sale of the house to them, that the purchase
money was paid out of their joint income but that the patta was granted in the
names of the plaintiffs due to political reasons and therefore the plaintiffs
were at the most benamidars.
The trial court held that the house was
acquired by the deceased brother from the Government of Bikaner for the
plaintiffs and the patta was granted in favour of the plaintiffs and that they
were in its possession till 1956.
It rejected the defendant's claim that it was
acquired with the joint funds of himself and his deceased brother.
On appeal the High Court held that the house
had been purchased by the deceased brother out of his own money in the names of
the plaintiffs without any intention to confer any beneficial interest on them
and on his death plaintiff no. 1 and the defendant succeeded jointly to the
estate as his heirs.
HELD: The transaction under which the patta
was obtained was not a benami transaction. The house was acquired by the
deceased brother with his money and with the intention of constituting
plaintiff no. 2 as the absolute owner thereof. [648G] Where a person buys
property with his own money but in the name of another person without any
intention to benefit such other person, the transaction is called benami. In
that case the transferee holds the property for the benefit of the person who
has contributed the purchase money and he is a real owner. The second case
which is loosely termed a benami transaction is a case where a person, who is
the owner of the property, executes a conveyance in favour of another without
the intention of transferring the title to the property thereunder. In this
case the transferor continues to be the real owner. The difference between the
two kinds of benami transactions is that whereas in the former there is an
operative transfer from the transferor to the transferee, though the transferee
holds the property for the benefit of the person who has 629 contributed the
purchase money, in the latter there is no operative transfer at all and the
title rests with the transferor notwithstanding the execution of the
conveyance.
One common feature in both cases is that the
real title is divorced from the ostensible title and they are vested in different
persons. The question whether a transaction is a benami transaction or not
depends upon the intention of the person who has contributed the purchase money
in the former case, and upon the intention of the person who has executed the
conveyance in the latter case. The principle underlying the former case is
statutorily recognized in section 82 of the Indian Trust Act, 1882. [638B-E]
Meenakshi Mills, Madurai v. The Commissioner of Income- Tax, Madras, [1956]
S.C.R. 691 at p. 722; Mohammad Sadiq Ali Khan v. Fakhr Jahan Begam & Ors.
59 I.A. 1; Manmohan Das & Ors. v. Mr. Ramdai & Anr. A.I.R. 1931 P. C.
175; Jaydayal Poddar (deceased) through his L.Rs. & Anr. v. Mst. Bibi Hazra
& Ors. [1974] 2 S.C.R. 90 referred to.
2. The principles governing the determination
of the question whether a transfer is a benami or not are: (1) The burden of
showing that a transfer is a benami transaction lies on the person who asserts
that it is such a transaction; (2) if it is proved that the purchase money came
from a person other than the person in whose favour the property is
transferred, the purchase is prima-facie assumed to be for the benefit of the
person who supplied the purchase money, unless there is evidence to the
contrary;
(3) the true character of the transaction is
governed by the intention of the person who has contributed the purchase money
and (4) the question as to what his intention was, has to be decided on the
basis of the surrounding circumstances, the relationship of the parties the
motives governing their action in bringing about the transaction and their
subsequent conduct. [641C-E] In the instant case the deceased brother was a
bachelor. On the death of the wife of plaintiff no. 1, plaintiff no. 2 and his
younger brother were staying with the deceased brother. Plaintiff no. 1 was
almost in an indigent condition while defendant practised law for some time and
later entered into service. The patta for the house was issued in the name of
plaintiffs nos. 1 and 2 at the request of the deceased brother for the benefit
of plaintiff no. 2 and was handed over to him after he completed his education.
This conduct of the deceased brother established that it was his intention
that, when he secured the patta from the State Government in the names of
plaintiffs it was his intention that plaintiff no. 2 whom he loved, should
become the owner. [641F-H]
3. The declaration made by the deceased, who
had contributed the purchase money subsequent to the date of purchase to the
effect that the property belonged to plaintiff no. 2 was admissible in evidence
either under section 32(3) or section 21 of the Indian Evidence Act to prove
his intention that he intended that plaintiff No. 2 should become its owner.
[647E] Shephard & Anr. v. Cartwright & Anr. [1955] A.C. 431, distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal
Nos. 626 & 629 of 1971.
From the Judgment and Order dated 5-8-1970 of
the Rajasthan High Court in R.F.A. No. 31/60.
630 S. T. Desai and Naunit Lal for the
Appellant.
P. R. Mridul, B. P. Sharma, Krishna Bhatt and
R. K. Bhatt for the Respondents.
The Judgment of the Court was delivered by
VENKATARAMIAH, J.-These two cross appeals by certificate arise out of a suit
for possession of a house situate in Bikaner and for damages for use and
occupation thereof filed in Civil Original Case No. 17 of 1957 on the file of
the District Judge, Bikaner. The plaintiffs in the suit are the appellants in
Civil Appeal No. 626 of 1971 and the defendant is the appellant in Civil Appeal
No. 629 of 1971. The genealogy showing the relationship between the parties is
given below:- Sur Singh |
----------------------------------------------------------- | | | | Gad Singh
Bharat Singh Bhim Singh Kan Singh | (Died in (P.I.) (Deft.) | Sept. 1955) | | |
----------------------- | | | | | Duley Dhaney Deep | Singh Singh Singh | | |
----------------- Himmat Dalip Singh Singh (P.2.) (Died in Sept. 56) Gad Singh,
Bharat Singh, Bhim Singh (plaintiff No. 1) and Kan Singh (defendant) are the
sons of Sur Singh. Bharat Singh died unmarried in September, 1955. Gad Singh
died thereafter leaving behind him three sons, Duley Singh, Dhaney Singh and
Deep Singh. Dalip Singh, the second son of plaintiff No.1 died in September,
1956. Bharat Singh and the defendant were residing in the house which was the
subject matter of the suit. After the death of Bharat Singh, the plaintiffs
Bhim Singh and Himmat Singh filed the suit out of which this appeal arises
against Kan Singh, the defendant for recovery of possession of the suit house
and other ancillary reliefs. In the plaint, they 631 pleaded that the suit
house belonged to them by virtue of a patta dated July 12, 1940 issued in their
names; that the defendant who was the brother of plaintiff No. 1 and uncle of
plaintiff No. 2 was living in a part of the house with their consent; that
plaintiff No. 2 and his younger brother Dalip Singh were also living in the
house till the year 1956; that the defendant had refused to receive a notice
issued by them in the month of September, 1957 calling upon him to hand over possession
of the house to the plaintiffs;
that the defendant had done so on account of
personal ill will and that the plaintiffs were, therefore, entitled to recover
possession of the suit house and damages from the defendant. These were briefly
the allegations made in the plaint. On the above basis, the plaintiffs prayed
for a decree for the reliefs referred to above.
In the written statement, the defendant did
not admit the existence of the patta on the basis of which the plaintiffs
claimed title to the suit house. He denied the allegation that the plaintiffs
were the owners in possession of the suit house. He claimed that he was the
exclusive owner of the suit house, and in support of the said claim stated as
follows:- There was a partition amongst the sons of Sur Singh in the year 1929.
At that partition, Gad Singh and plaintiff No. 1 became separated and they were
given all the family properties which were situated in their village, Roda. As
Bharat Singh and the defendant had been educated at the expense of the family,
they were not given any share in the property. Bharat Singh and he settled in
Bikaner and lived together as members of joint Hindu family. Bharat Singh died
on September 2, 1955 leaving the defendant as a surviving coparcener. On his death,
the defendant became the owner of the properties of Bharat Singh 'as a member
of joint Hindu family'. He further pleaded that from the year 1928, Bharat
Singh and he who were working as the Aid-de-Camp and Private Secretary
respectively of the Maharaja of Bikaner were living in the suit house which
then belonged to the Maharaja. The defendant filed an application for
purchasing the house. The proceedings had not terminated when the defendant
left the service of the Maharaja and went to Banaras for higher studies. On his
return from Banaras, he joined the service of the Maharaja in the civil
department of Bikaner. After a long time on account of the joint efforts of
Bharat Singh and the defendant, the sale of the house was sanctioned. Bharat
Singh who was living jointly with him paid the consideration for the sale on
November 4, 1939 'out of the joint income.' Thus according to the defendant,
Bharat Singh and he became its owners from the date of payment of the
consideration. He 632 further pleaded that 'if the patta of the property had
been granted in the names of the plaintiffs due to some reasons, political and
other surrounding circumstances and for the safety of the property, it cannot
affect the right of the defendant'. It was also stated that Bharat Singh and
the defendant had not executed any sale deed in favour of the plaintiffs and so
they could not become owners of the suit house. In another part of the written
statement, the defendant pleaded thus:
"The plaintiffs have taken the entire
ancestral property of the village. Still they are harassing the defendant due
to avarice. The defendant and Thakur Bharat Singh had been doing Government
service. So there was always danger or removal or confiscation of the property.
Even if Thakur Bharat Singh might have written or given his consent for
entering the names of the plaintiffs in the patta in this view, it is not
binding. The plaintiffs are at the most 'benami' even though the patta which is
not admitted might be proved." It is thus seen that the defendant put
forward a two- fold claim to the suit house-one on the basis of the right of
survivorship another on the basis of a joint purchase along with Bharat Singh.
Even though in one part of the written statement, he declined to admit the
existence of the patta, in paragraph 13 of the written statement which is
extracted above, he put forward the plea that the plaintiffs were at the most
holding the property as benamdars. He, however, did not claim that he was
entitled to the property as an heir of Bharat Singh alongwith plaintiff No. 1.
and Gad Singh who would have inherited the estate of Bharat Singh on his death
being his nearest heirs.
In the reply, the plaintiffs denied that the
defendant was entitled to the suit house as a surviving coparcener on the death
of Bharat Singh. They, however, pleaded that plaintiff No. 1 had purchased the
suit house out of his income; that Bharat Singh used to love plaintiff No. 2
'as his son' and was thinking of adopting him but he died all of a sudden and
that the defendant had not disclosed in his written statement the special
political circumstances under which the names of the plaintiffs were entered in
the patta.
They denied that the defendant had any
interest in the suit house.
On the basis of the oral and documentary
evidence produced before him, the learned District Judge who tried the suit
held that Bharat Singh had secured the house from the Government of Bikaner for
the plaintiffs with their money; that the patta of the house had been granted
by the Patta Court in favour of the plaintiffs; that the plaintiffs were in
possession of the suit house till September, 1956 and that the 633 defendant
being their close relative was living in the house not on his own account but
with the plaintiffs' permission.
The learned District Judge also held that the
defendant had failed to prove that the suit house had been acquired by him and
Bharat Singh with their joint fund. Accordingly he decreed the suit for
possession of the house in favour of the plaintiffs and further directed that
the defendant should pay damages for use and occupation at the rate of Rs. 50
per month from September 20, 1956 till the possession of the house was restored
to them. Aggrieved by the decree of the trial court, the defendant filed an
appeal before the High Court of Rajasthan in Civil First Appeal No. 31 of 1960.
The High Court rejected the case of the plaintiffs that the consideration for
the house had been paid by Bharat Singh out of the funds belonging to them and
also the case of the defendant that the house had been purchased by Bharat
Singh with the aid of joint family funds belonging to himself and the
defendant. The High Court held that the house had been purchased by Bharat
Singh out of his own money in the names of the plaintiffs without any intention
to confer any beneficial interest on them. It further held that the suit house
belonged to Bharat Singh and on his death, Gad Singh, plaintiff No. 1 and the
defendant succeeded to his estate which included the suit house in equal
shares. Accordingly in substitution of the decree passed by the trial court,
the High Court made a decree for joint possession in favour of plaintiff No. 1.
The rest of the claim of the plaintiffs was rejected. Dissatisfied with the
decree of the High Court, the plaintiffs and the defendant have filed these two
appeals as mentioned above.
The principal issue which arises for
consideration relates to the ownership of the suit house. It is admitted on all
hands that though Bharat Singh and the defendant were living in the suit house
from the year 1928, it continued to be the property of the Maharaja of Bikaner
till the date on which the patta (Exh. 4) was issued by the Patta Court of
Bikaner and that on the issue of the patta, the State Government ceased to be
its owner. It is also not disputed that the patta constituted the title deed in
respect of the suit house and it was issued in the names of the plaintiffs on
receipt of a sum of Rs. 5,000. On January 11, 1930, the defendant had made an
application, a certified copy of which is marked as Exhibit A-116 to the
Revenue Minister of the State of Bikaner making enquiry about the price of the
suit house on coming to know that the State Government intended to sell it.
After the above application was made, the defendant left the service of the
State of Bikaner and went to Banaras for studies. Bharat Singh who was also an
employee of the State Gov- 634 ernment was working as the Aid-de-Camp of the
Maharaja in 1939. At the request of Bharat Singh, an order was made by the
Maharaja on May 4, 1939 sanctioning the sale of the suit house for a sum of Rs.
5,000. Exhibit A-118 is the certified copy of the said order. Exhibit A-120 is
a certified copy of the order of Tehsil Malmandi showing that a sum of Rs.
5,000 had been deposited on behalf of Bharat Singh towards the price of the
suit house. It also shows that Bharat Singh was asked to intimate the name of
the person in whose favour the patta should be prepared. Presumably, the patta
was issued in the names of the plaintiffs as desired by Bharat Singh and
Exhibit A-121 shows that it was handed over on September 30, 1940. The patta
was produced before the trial court by the plaintiffs.
By the time the patta was issued in the names
of the plaintiffs, the mother of plaintiff No. 2 had died. He was about eight
years of age in 1940 and he and his younger brother, Dalip Singh were under the
protection of Bharat Singh who was a bachelor. They were staying with him in
the suit house. The defendant also was residing in it. The plaintiffs who claimed
title to the property under the patta in the course of the trial attempted to
prove that the sum of Rs. 5,000 which was paid by way of consideration for the
patta by Bharat Singh came out of the jewels of the mother of plaintiff No. 2
which had come into the possession of Bharat Singh on her death. The plaintiff
No. 2 who gave evidence in the trial court stated that he had not given any
money to Bharat Singh for the purchase of the house but he had come to know
from his father, plaintiff No. 1 that it had been purchased with his money.
Jaswant Singh (P.W. 2) and Kesri Singh (P.W. 3) to whose evidence we will make
a reference in some detail at a later stage also stated that they had heard
from Bharat Singh that the jewels of the mother of plaintiff No. 2 were with
him suggesting that they could have been the source of the price house.
Plaintiff No. 1 who could have given evidence on the above question did not
enter the witness box. It is stated that he was a person of weak mind and after
the death of Bharat Singh was behaving almost like a mad man. The defendant
stated in the course of his evidence that the mother of plaintiff No. 2 had
gold jewels weighing about 3-4 tolas only. In this state of evidence, it is
difficult to hold that the plaintiffs have established that the consideration
for the suit house was paid by them. The finding of the trial court that the
house had been purchased by Bharat Singh for the plaintiffs with their money
cannot be upheld. The case of the defendant that the price of the suit house
was paid out of the funds belonging to him and Bharat Singh has been rejected
both by the trial court and the High Court. On going 635 through the evidence
adduced by the defendant, we feel that there is no reason for us to disturb the
concurrent findings arrived at by the trial court and the High Court on the
above question. We shall, therefore, proceed to decide the question of title on
the basis that the consideration for the purchase of the house was paid by
Bharat Singh out of his own funds.
It was contended by the learned counsel for
the defendant that since the plaintiffs had failed to establish that they had
contributed the price paid for the suit house, the suit should be dismissed
without going into the question whether Bharat Singh had purchased the suit
house with his money in the names of the plaintiffs for the benefit of
plaintiff No. 2. The plaint does not disclose the name of the person or persons
who paid the sale price of the suit house. The suit is based on the patta
standing in the names of the plaintiffs. In the written statement of the
defendant, there was an allegation to the effect that even though the patta was
standing in the names of the plaintiffs, they were only benamidars and the real
title was with Bharat Singh and the defendant. The particulars of the
circumstances which compelled Bharat Singh or the defendant to take the patta
in the names of the plaintiffs were not disclosed although it was stated that
it had been done owing to some political and other surrounding circumstances
and for the safety of the property. From the evidence led by the parties, we
are satisfied that they knew during the trial of the suit that the question
whether the transfer effected under the patta was a benami transaction or not
arose for consideration in the case. Even in the appeal before the High Court,
the main question on which arguments were addressed was whether the transaction
was a benami transaction or not. Merely because the plaintiffs attempted to
prove in the trial court that the money paid for purchasing the house came out
of their funds, they cannot in the circumstances of this case be prevented from
claiming title to the property on the basis that even though Bharat Singh had
paid the consideration therefor, plaintiff No. 2 alone was entitled to the suit
house. Reference may be made here to the decision of this Court in Bhagwati
Prasad v. Shri Chandramaul(1) where the Court observed as follows:- "There
can be no doubt that if a party asks for a relief on a clear and specific grounds,
and in the issues or at the trial, no other ground is covered either directly
or by necessary implication, it would not be open to the said party to 636
attempt to sustain the same claim on a ground which is entirely new........But
in considering the application of this doctrine to the facts of the present
case, it is necessary to bear in mind the other principle that considerations
of form cannot over-ride the legitimate considerations of substance. If a plea
is not specifically made and yet it is covered by an issue by implication, and
the parties knew that the said plea was involved in the trial, then the mere
fact that the plea was not expressly taken in the pleadings would not
necessarily disentitle a party from relying upon it if it is satisfactorily
proved by evidence. The general rule no doubt is that the relief should be
founded on pleadings made by the parties. But where the substantial matters
relating to the title of both parties to the suit are touched, though in
directly or even obscurely in the issues, and evidence has been led about them,
then the argument that a particular matter was not expressly taken in the
pleadings would be purely formal and technical and cannot succeed in every
case. What the Court has to consider in dealing with such an objection is: did
the parties know that the matter in question was involved in the trial, and did
they lead evidence about it ?" After holding that the parties to the said
case were not taken by surprise, the Court granted the relief prayed for by the
plaintiff on the basis that defendant was a licensee even though the plaintiff
had pleaded in his plaint that the defendant was tenant. In the above case, the
Court distinguished the decision in Trojan & Co. Ltd. v. RM. N. N. Haggappa
Chettiar(1) on which much reliance was placed by the learned counsel for the
defendant before us. In the case of Trojan & Co. Ltd. (supra), this Court
came to the conclusion that the alternative claim on which relief was sought
was not at all within the knowledge of the parties in the course of the trial.
The case before us is not of the nature.
In Ismail Mussajee Mookerdum v. Hafiz Boo(2)
the plaintiff laid claim to a property which had been transferred in her name
by her mother alleging that she had paid the purchase money to her mother. The
court came to the conclusion that she had failed to prove that she had paid the
consideration. Still a decree was made in her favour holding that she had
become the owner of the property by virtue of the transfer in her favour even though
consideration had not been 637 paid by her since it had been established in the
case that her mother intended to transfer the beneficial interest in the
property in her favour. This is borne out from the following passage at page
95:
"In her evidence, which was very
confused, she tried to say that she paid that purchase-money to her mother.
This was clearly untrue: as both Courts have found. The fact, therefore,
remains that the properties purchased by the sale proceeds were purchased no
doubt in Hafiz Boo's name, but were purchased out of funds emanating from her
mother's estate. This circumstance no doubt, if taken alone, affords evidence
that the transaction was benami, but there is, in their Lordships' opinion,
enough in the facts of the case to negative any such inference." Moreover
no plea was raised on behalf of the defendant before the High Court in this
case contending that the High Court should not go into the question whether the
transfer under the patta was a benami transaction or not. We, therefore, reject
the above contention and proceed to examine whether the High Court was right in
arriving at the conclusion that the plaintiffs were only benamidars holding the
property for the benefit of its real owner, Bharat Singh as the consideration therefor
had emanated from him.
Under the English law, when real or personal
property is purchased in the name of a stranger, a resulting trust will be
presumed in favour of the person who is proved to have paid the purchase money
in the character of the purchaser. It is, however, open to the transferee to
rebut that presumption by showing that the intention of the person who
contributed the purchase money was that the transferee should himself acquire
the beneficial interest in the property. There is, however, an exception to the
above rule of presumption made by the English law when the person who gets the
legal title under the conveyance is either a child or the wife of the person
who contributes the purchase money or his grandchild, whose father is dead. The
rule applicable in such cases is known as the doctrine of advancement which
requires the court to presume that the purchase is for the benefit of the
person in whose favour the legal title is transferred even though the purchase
money may have been contributed by the father or the husband or the
grandfather, as the case may be, unless such presumption is rebutted by
evidence showing that it was the intention of the person who paid the purchase
money that the transferee should not become the real owner of the property in
question. The doctrine of advancement is not in vogue in India.
638 The counterpart of the English law of
resulting trust referred to above is the Indian law of benami transactions.
Two kinds of benami transactions are
generally recognized in India. Where a person buys a property with his own
money but in the name of another person without any intention to benefit such
other person, the transaction is called benami.
In that case, the transferee holds the
property for the benefit of the person who has contributed the purchase money,
and he is the real owner. The second case which is loosely termed as a benami
transaction is a case where a person who is the owner of the property executes
a conveyance in favour of another without the intention of transferring the
title to the property thereunder. In this case, the transferor continues to be
the real owner. The difference between the two kinds of benami transactions
referred to above lies in the fact that whereas in the former case, there is an
operative transfer from the transfer to the transferee though the transferee
holds the property for the benefit of the person who has contributed the
purchase money, in the latter case, there is no operative transfer at all and
the title rests with the transferor notwithstanding the execution of the
conveyance.
One common feature, however, in both these
cases is that the real title is divorced from the ostensible title and they are
vested in different persons. The question whether a transaction is a benami
transaction or not mainly depends upon the intention of the person who has
contributed the purchase money in the former case and upon the intention of the
person who has executed the conveyance in the latter case. The principle
underlying the former case is also statutorily recognized in section 82 of the Indian
Trusts Act, 1882 which provides that where property is transferred to one
person for a consideration paid or provided by another person and it appears
that such other person did not intend to pay or provide such consideration for
the benefit of the transferee, the transferee must hold the property for the benefit
of the person paying or providing the consideration. This view is in accord
with the following observations made by this Court in Meenakshi Mills. Madurai
v. The Commissioner of Income-Tax, Madras(1):- "In this connection, it is
necessary to note that the word 'benami' is used to denote two classes of
transactions which differ from each other in their legal character and
incidents. In one sense, it signifies a transaction which is real, as for
example when A sells properties to B but the sale deed mentions X as the
purchaser. Here the sale itself is genuine, but the real purchaser is B, X
being his benamidar.
This is 639 the class of transactions which
is usually termed as benami. But the word 'benami' is also occasionally used,
perhaps not quite accurately, to refer to a sham transaction, as for example,
when A purports to sell his property to B without intending that his title
should cease or pass to B. The fundamental difference between these two classes
of transactions is that whereas in the former there is an operative transfer
resulting in the vesting of title in the transferee, in the latter there is
none such, the transferor continuing to retain the title notwithstanding the
execution of the transfer deed. It is only in the former class of cases that it
would be necessary, when a dispute arises as to whether the person named in the
deed is the real transferee or B, to enquire into the question as to who paid
the consideration for the transfer, X or B. But in the latter class of cases,
when the question is whether the transfer is genuine or sham, the point for
decision would be, not who paid the consideration but whether any consideration
was paid." In Mohammad Sadiq Ali Khan v. Fakhr Jahan Begum & Ors.(1)
the facts were these: A Mahemmodan bought an immovable property taking the
conveyance in the name of his daughter who was five years of age. The income
was credited to a separate account, but it was in part applied to purposes with
which she had no concern. Upon her marriage, the deed was sent for the
inspection of her father-in-law.
After the death of the donor it was contended
that the property was part of his estate, the purchase being benami.
The Judicial Committee of the Privy Council
held that there was a valid gift to the daughter because there was proof of a
bona fide intention to give, and that intention was established. In the course
of the above decision, it was observed thus:- "The purchase of this
property was a very natural provision by Baqar Ali for the daughter of his
favourite wife, and though there may be no presumption of advancement in such
cases in India, very little evidence of intention would be sufficient to turn
the scale. The sending of the deed for the inspection of the lady's
father-in-law, which the Chief Court held to be established, was clearly a
representation that the property was hers, and their Lordships agree with the
learned Judges in the conclusion to which they came." 640 In Manmohan Dass
& Ors. v. Mr. Ramdei & Anr. (1) Lord Macmillian speaking for the
Judicial Committee observed:
In order to determine the question of the
validity or invalidity of the deed of gift in question it is of assistance to
consider.
'the surrounding circumstances, the position
of the parties and their relation to one another, the motives which could
govern their actions and their subsequent conduct.' Dalip Singh v. Nawal Kanwar
35 I.A. 104 (P.C.) always remembering that the onus of proof rests upon the
party impeaching the deed.
The principle enunciated by Lord Macmillan in
the case of Manmohan Dass & Ors. (supra) has been followed by this Court in
Jayadayal Poddar (deceased) through his L. Rs. & Anr. v. Mst. Bibi Hazara
& Ors.(2) where Sarkaria, J.
observed thus:
"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 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,
uniformly applicable in all situations, can be laid down; yet in weighing the
probabilities and for gathering 641 the relevant indicia, the courts are
usually guided by these circumstances: (1) the source from which the purchase
money came; (2) the nature and possesion 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 principle governing the determination of the question whether a
transfer is a benami transaction or not may be summed up thus: (1) The burden
of showing that a transfer is a benami transaction lies on the person who asserts
that it is such a transaction; (2) if it is proved that the purchase money came
from a person other than the person in whose favour the property is
transferred, the purchase is prima facie assumed to be for the benefit of the
person who supplied the purchase money, unless there is evidence to the
contrary; (3) the true character of the transaction is governed by the
intention of the person who has contributed the purchase money and (4) the
question as to what his intention was has to be decided on the basis of the
surrounding circumstances, the relationship of the parties, the motives
governing their action in bringing about the transaction and their subsequent
conduct etc.
Now we shall refer to the facts of the
present case.
When the suit house was purchased from the
Maharaja of Bikaner, Bharat Singh was a bachelor and he did not marry till his
death in the year 1955. The wife of Bhim Singh had died before 1939 leaving
behind her two young children.
Plaintiff No. 2 was about eight years old in
the year 1939 and his younger brother Dalip Singh was about two years old.
These two children were living with Bharat
Singh. Bhim Singh, plaintiff No. 1 was almost in indigent condition. The
defendant had by then acquired a degree in law and also had practised as a lawyer
for some time. It is stated that the defendant had again been employed in the
service of the State of Bikaner. The patta was issued in the names of
plaintiffs 1 and 2 at the request of Bharat Singh. Even though the defendant
stated in the written statement that the patta had been taken in the names of
the plaintiffs owing to certain political circumstances, he had not disclosed
in the course of his evidence those circumstances which compelled Bharat Singh
to secure the patta in the names of the plaintiffs, though at one stage, he
stated that it was under his advice that Bharat Singh got the patta in the
names of the plaintiffs. Bharat 642 Singh had no motive to suppress from the
knowledge of the public that he had acquired the property. It was suggested in
the course of the arguments that he had taken the patta in the names of the
plaintiffs because he was in the service of the State. We do not find any
substance in this submission because the property was being purchased from the
State Government itself and there was no need for him to shield his title from
the knowledge of the State Government.
It appears that Bharat Singh acquired the
suit house for the benefit of plaintiff No. 2 for the following circumstances:
The first circumstance is that the original
patta had been handed over by Bharat Singh to plaintiff No. 2 on his passing B.
Sc. Examination. This fact is proved by the evidence of plaintiff No. 2 and it
is corroborated by the fact that the patta was produced by the plaintiffs
before the Court. In the course of his evidence, the defendant no doubt stated
that the patta had been stolen by plaintiff No. 2 from the suit house during
the twelve days following the death of Bharat Singh when the keys of Bharat
Singh's residence had been handed over to plaintiff No. 2 by the defendant. It
is difficult to believe the above statement of the defendant because of two
circumstances-(i) that the defendant did not state in the written statement
that the patta had been stolen by plaintiff No. 2 and (ii) that within a month
or two after the death of Bharat Singh, plaintiff No. 2 wrote a letter which is
marked as Exhibit A- 124 to the defendant stating that the rumour which the
defendant was spreading that plaintiff No. 2 had stolen some articles from the
suit house was not true since whenever plaintiff No. 2 opened room or any of
the almirahs of Bharat Singh in the suit house, Devi Singh the son of the
defendant was keeping watch over him. That letter has been produced by the
defendant and there is no reference in it to a false rumour being spread about
the theft of the patta by plaintiff No. 2. Plaintiff No. 2 however, while
asserting his claim to the suit house in the course of that letter stated that
he had seen that the patta had been executed in his favour; and that the patta
contained his name. The defendant does not appear to have sent any reply to
Exhibit A. 124 nor did he call upon the plaintiffs to return the patta to him.
He did not also file a complaint stating that the patta had been stolen by
plaintiff No. 2. We are of the view that there is no reason to disbelieve the
evidence of plaintiff No. 2 that the patta had been handed over to him by
Bharat Singh on his passing the B.Sc. examination. This conduct of Bharat Singh
establishes that it was the intention of Bharat Singh when he secured the patta
from the State Government in the names of the plaintiffs the plaintiff No. 2
whom he loved should become the owner. It is no doubt true that the name of
plaintiff No. 1 is also included in the patta. It may have been so included by
way 643 of abundant caution as plaintiff No. 2 was a minor when the patta was
issued. The above circumstance is similar to the one which persuaded their
Lordships of the Privy Council in the case of Mohammad Sadiq Ali Khan (supra) to
hold that the property involved in that case belonged to the person in whose
favour the conveyance had been executed.
The second circumstance which supports the
view that Bharat Singh intended that plaintiff No. 2 should become the owner of
the suit house is proved by the declarations made by Bharat Singh regarding the
title to the suit house.
Jaswant Singh (P.W. 2) was a former Prime
Minister of the State of Bikaner. His wife was a cousin of plaintiff No. 1,
Bharat Singh and the defendant. Being a close relative of Bharat Singh who was
also the Aid-de-Camp of the Maharaja of Bikaner, he was quite intimate with
Bharat Singh who used to discuss with him about his personal affairs. P.W. 2
has stated in the course of his evidence that Bharat Singh thought it proper to
purchase the house in the name of plaintiff No. 2 and that he intended to make
plaintiff No. 2 his heir and successor. He has also stated that Bharat Singh
had expressed his desire to give all his property to plaintiff No. 2 by a will
and that he had told Kesri Singh (P.W. 3) just a day prior to his (Bharat
Singh's) death that a will was to be executed. This statement of Jaswant Singh
(PW. 2) is corroborated by the evidence of Kesri Singh (P.W.
3) whose wife was also a cousin of Bharat
Singh, plaintiff No. 1 and the defendant. The relevant portion of the
deposition of Kesri Singh (P.W. 3) reads thus:
"I came from Jaipur to Bikaner by train
one day before the death of Bharat Singh and when I was returning after a walk
I found Bharat Singh standing at the gate of his house. I asked Bharat Singh to
accompany me to my house to have tea etc. Bharat Singh came with me to my
house. Bharat Singh told me at my house that he was not quite all right and
that he might die at any time. He wanted to execute a will. He further told me
that his house really belonged to Himmat Singh. It has been purchased in his
name. He wanted to give even other property to Himmat Singh.. By other property
which Bharat Singh wanted to give to Himmat Singh was meant Motor car, bank
balance and the presents which he had. The house regarding which my talk took
place with Bharat Singh at my house was the house in dispute." There is no
reason to disbelieve the evidence of these two witnesses. Their evidence is
corroborated by the deposition of Dr. Himmat Singh (D.W. 6) who was the
Secretary of a Club in Bikaner 644 of which Bharat Singh was a member. He was
examined by the defendant himself as his witness. In the course of his
cross-examination, Dr. Himmat Singh (D.W. 6) referred to what Bharat Singh had
told him a few months prior to his death. The substance of his deposition is
found in the judgment of the trial court, the relevant portion of which reads
thus:
"D.W. 6 Dr. Himmat Singh is the
Secretary of the Sardul Club, Bikaner. He is the Senior Eye-Surgeon in the
Government Hospital, Bikaner. He has stated that Bharat Singh was the member of
Sardul Club. A sum of Rs. 425/6/-remained outstanding against him till the year
1955. This amount was received on 28-10-1955. He has said that he does not know
who deposited this amount. On the merits of the case, he has stated that he
intimately knew Bharat Singh and members of his family. Bhim Singh and his sons
Himmat Singh and Dalip Singh used to live in this house. Bharat Singh took this
house for Bhim Singh and Himmat Singh. Four months before his death, Bharat
Singh told the witness that he had already taken the house for Bhim Singh and
Himmat Singh and that whatever else would remain with him shall go to them. Dr.
Himmat Singh refutes the defendant's stand and supports the plaintiff's
case." It was argued on behalf of the defendant that there is some
variation between the deposition of Dr. Himmat Singh (D.W. 6) and the above
passage found in the judgment of the trial court and that the evidence of D.W.
6 should not be believed as he had turned hostile.
The deposition of Dr. Himmat Singh (D.W. 6)
was read out to us. It was also brought to our notice that an application had
been made by the defendant to treat D.W. 6 as hostile and that it had not been
granted by the trial court. Even though there is a slight variation between
what is stated by D.W. 6 and what is contained in the judgment of the trial
court with regard to certain details, we do not feel that the said variation is
of any substantial nature.
The evidence of D.W. 6 suggests that Bharat
Singh was of the view even during his life time that the suit house belonged to
plaintiffs and not to himself. Even though an application had been made by the
defendant to treat D.W. 6 as hostile, we feel that this part of the evidence of
D.W. 6 cannot be rejected on that ground since it is consistent with the
evidence of Jaswant Singh (P.W. 2) and Kesri Singh (P.W. 3).
It is seen from the judgment of the High
Court that the effect of the statement of Kesri Singh (P.W.3) in his deposition
that Bharat Singh 645 had told him that the suit house was the property of
plaintiff No. 2 has not been considered. The High Court while dealing with the
evidence of Jaswant Singh (P.W. 2) and Kesri Singh (P.W. 3) laid more emphasis
on those parts of their evidence where there was a reference to the alleged
utilisation of the jewels or moneys belonging to the plaintiffs by Bharat Singh
for the purpose of acquiring the suit house. The High Court has also observed
in the course of its judgment that neither of them had stated that Bharat Singh
had told them that he was purchasing or had purchased the suit house as a gift
to Bhim Singh and Himmat Singh. The above observation does not appear to be
consistent with the evidence of Kesri Singh (P.W. 3) discussed above.
It was, however, contended on behalf of the
defendant that the statement made by Bharat Singh in the year 1955 could not be
accepted as evidence in proof of the nature of the transaction which had taken
place in the year 1940. It was contended that the question whether a
transaction was of a benami nature or not should be decided on the basis of
evidence about facts which had taken place at or about the time of the
transaction and not by statements made several years after the date of the
transaction. In support of the above contention, the learned counsel for the
defendant relied on the decision of the House of Lords in Shephard & Anr.
v. Cartwright & Anr.(1). The facts of that case were these: In 1929, a
father, with an associate, promoted several private companies and caused a
large part of the shares, for which he subscribed, to be allotted in varying
proportions to his three children, one of them being then an infant. There was
no evidence as to the circumstances in which the allotments were made. The
companies were successful and in 1934 the father and his associate promoted a
public company which acquired the shares of all the companies. The children
signed the requisite documents at the request of their father without
understanding what they were doing. He received a cash consideration and at
various times sold, and received the proceeds of sale of, their shares in the
new company. He subsequently placed to the credit of the children respectively
in separate deposit accounts the exact amount of the cash consideration for the
old shares and round sums in each case equivalent to proceeds of sale of the
new shares. Later he obtained the children's signatures to documents, of the
contents of which they were ignorant, authorising him to withdraw money from
these accounts and without their knowledge he drew on the accounts, which were
by the end of 1936 exhausted, part of the sums withdrawn being dealt with for
the benefit of the children but a large part remaining unaccounted for. He died
in 646 1949. In the action filed against his executors, it was contended by
them that the subsequent conduct of the father showed that when the shares were
got allotted by him in the names of the children in 1929, he did not intend to
make them the real owners of the shares and that the presumption of advancement
had been rebutted. This contention was met by the plea that the subsequent
conduct of the father in dealing with the shares as if they were his own could
not be relied upon either in his favour or in favour of his representatives,
executors and administrators to prove that he had no intention to create any
beneficial interest in his children in the shares in question when they were
obtained.
On these facts, the House of Lords held that
the subsequent acts and declarations of the father could not be relied upon in
his favour or in favour of his executors to rebut the presumption of
advancement. Viscount Simonds in the course of his judgment observed thus:
"My Lords, I do not distinguish between
the purchase of shares and the acquisition of shares upon allotment, and I
think that the law is clear that on the one hand where a man purchases shares
and they are registered in the name of a stranger there is a resulting trust in
favour of the purchaser; on the other hand, if they are registered in the name
of a child or one to whom the purchaser then stood in loco parentis, there is
no such resulting trust but a presumption of advancement. Equally it is clear
that the presumption may be rebutted but should not, as Lord Eldon said, give
way to slight circumstances: Finch v. Finch (1808) 15 Ves. 43.
It must then be asked by what evidence can
the presumption be rebutted, and it would, I think, be very unfortunate if any
doubt were cast (as I think it has been by certain passages in the judgments
under review) upon the well-settled law on this subject. It is, I think,
correctly stated in substantially the same terms in every text book that I have
consulted and supported by authority extending over a long period of time. I
will take, as an example, a passage from Snell's Equity, 24th ed., p. 153,
which is as follows:
"The acts and declarations of the
parties before or at the time of the purchase, or so immediately after it as to
constitute a part of the transaction are admissible in evidence either for or
against the party who did the act or made the 647 declaration. ... But
subsequent declarations are admissible as evidence only against the party who
made them, and not in his favour." The above passage, we are of the view,
does not really assist the defendant in this case. What was held by the House
of Lords in the case of Shephard & Anr. (supra) was that the presumption of
advancement could be displaced only by a statement or conduct anterior to or
contemporaneous to the purchase nor could any conduct of the children operate
against them as admissions against their interest as they acted without the
knowledge of the facts. In the instant case, we are concerned with the conduct
and declarations of Bharat Singh subsequent to the transaction which were
against his interest. The evidence regarding such conduct and declarations is
not being used in his favour but against the legal representative of Bharat
Singh i.e. the defendant who would have become entitled to claim a share in the
suit house if it had formed part of his estate. Such conduct or declaration
would be admissible even according to the above decision of the House of Lords
in which the statement of law in Snell's Equity to the effect `but subsequent
declarations are admissible as evidence only against the party who made them,
and not in his favour' is quoted with approval. The declarations made by Bharat
Singh would be admissible as admissions under the provisions of the Indian Evidence
Act being statements made by him against his proprietary interest under section
21 and section 32(3) of the Indian Evidence Act The defendant cannot also
derive any assistance from the decision of this Court in Bibi Saddiqa Fatima v.
Saiyed Mohammad Mahmood Hasan(1). The question before the Court in the case of
Bibi Siddiqa Fatima (supra) was whether a property which had been purchased by
a husband in his wife's name out of the fund belonging to a waqf of which he
was a Mutawalli could be claimed by the wife as her own property.
This Court held that the wife who was the
ostensible owner could not be treated as a real owner having regard to the fact
that the purchase money had come out of a fund belonging to a waqf over which
her husband who was the Mutawalli had no uncontrolled or absolute interest. In
reaching the above conclusion, this Court observed thus :
"We may again emphasize that in a case
of this nature, all the aspects of the benami law including the 648 question of
burden of proof cannot justifiably be applied fully. Once it is found, as it
has been consistently found, that the property was acquired with the money of
the waqf, a presumption would arise that the property is a waqf property
irrespective of the fact as to in whose name it was acquired. The Mutawalli by
transgressing the limits of his power and showing undue favour to one of the
beneficiaries in disregard to a large number of other beneficiaries could not
be and should not be permitted to gain advantage by this method for one beneficiary
which in substance would be gaining advantage for himself. In such a situation
it will not be unreasonable to say-rather it would be quite legitimate to
infer, that it was for the plaintiff to establish that the property acquired
was her personal property and not the property of the waqf." It was next
contended that the defendant had spent money on the repairs and reconstruction
of the building subsequent to the date of the patta and that therefore, he must
be held to have acquired some interest in it. We have gone through the evidence
bearing on the above question. We are satisfied that the defendant has not
established that he had spent any money at all for construction and repairs.
Even if he has spent some money in that way
with the knowledge of the actual state of affairs, it would not in law confer
on the defendant any proprietary interest in the property.
It is also significant that neither Gad Singh
during his life time nor his children after his death have laid any claim to a
share in the suit house which they were entitled to claim along with the
defendant if it was in fact a part of the estate of Bharat Singh. Their conduct
also probabilities the case of the plaintiffs that Bharat Singh did not intend
to retain for himself any interest in the suit house.
On the material placed before us, we are
satisfied that the transaction under which the patta was obtained was not a
benami transaction and that Bharat Singh had acquired the suit house with his
money with the intention of constituting plaintiff No. 2 as the absolute owner
thereof. Plaintiff No. 2 is, therefore, entitled to a decree for possession of
the suit house.
The trial court passed a decree directing the
defendant to pay damages for use and occupation in respect of the suit house at
the rate of Rs. 50/- per month from September 20, 1956 till the 649 possession of the house was delivered to the plaintiffs. The operation of the decree of
the trial court was stayed by the High Court during the pendency of the appeal
before it. In view of the decree passed by the High Court, the defendant has
continued to be in possession of the suit house till now. Nearly twenty years
have elapsed from the date of the institution of the suit. In the
circumstances, we are of the view that the defendant should be directed to pay
mesne profits at the rate of Rs. 50/- per month till today and that an enquiry
should be made by the trial court under Order 20, Rule 12 of the Code of Civil
Procedure to determine the mesne profits payable by the defendant hereafter till
the date of delivery of possession.
In the result, the decree passed by the High
Court is set aside and a decree is passed directing the defendant to deliver
possession of the suit house to plaintiff No. 2 and to pay mesne profits to him
at the rate of Rs. 50/- per month from September 20, 1956 till today and also
to pay future mesne profits as per decree to be passed by the trial court under
Order 20, Rule 12 of the Code of Civil Procedure.
For the foregoing reasons, Civil Appeal No.
626 of 1971 is accordingly allowed with costs throughout. Civil Appeal No. 629
of 1971 is dismissed but without costs.
C.A. 626/71 allowed.
P.B.R. C.A. 629/71 dismissed.
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