Smt. Satya
Gupta Alias Madhu Gupta Vs. Brijesh Kumar [1998] INSC 378 (4 August 1998)
K. Venkataswami
K. Venkataswami, J.
ACT:
HEAD NOTE:
This
appeal is preferred against the judgment and decree dated 14.2.83 of the
Allahabad High Court in Second Appeal No. 1845 of 1974. Brief facts giving rise
to this appeal by special leave are the following :- The respondent herein
filed an Original Suit No. 43 of 1962 in the Court of the Second Civil Judge. Meerut, for partitioning his half share in
the Property described in the plaint and for rendition of account in respect of
the same.
The
appellant was the defendant in the said suit, now representated by legal
representatives as she died pending this appeal. For easy appreciation, we
refer the parties as plaintiff (respondent herein) and defendant (deceased
appellant) in this judgment. On Battu Mal was the husband of the defendant. The
said Battu Mal purchased the suit property under a Sale Deed dated 9.5.53 for a
sum of Rs.17,000/- in the joint names of himself and the plaintiff, who was
then a minor aged 16 years. The said Battu Mal was murdered in June, 1956. The
plaintiff was prosecuted for the murder of said Battu Mal and was convicted and
sentenced to imprisonment and factually when the suit was filed he was in prison.
The plaintiff was the son of a cousin of the said Battu Mal. Battu Mal had no
issue.
In the
plaint, though a claim was made that the plaintiff was the adopted son of Battu
Mal, the suit was based not on that ground but expressly on the basis that Battu
Mal purchased half of the property for him (the plaintiff).
The
suit was resisted by filing the Written Statement.
It
was, inter alia, stated in the Written Statement that there was no disclosure
in the plaint as to how the property in dispute belonged to the plaintiff and Battu
Mal equally.
It was
also stated that the said Battu Mal purchased the suit property exclusively for
him by paying the entire sale consideration. There was no intention on the part
of Battu Mal to share the property or gift half share to the plaintiff when the
name of the plaintiff was jointly included in the sale deed.
The
Trial Court found that the entire sale consideration came from the deceased Battu
Mal and the plaintiff did not contribute any money towards the purchase of the
suit property. The Trial Court also found that the defendant has discharged the
initial burden to show that the sale deed in the joint name of the plaintiff
was only a Benami transaction. After finding that the entire sale consideration
was advanced by the said Battu Mal, the Trial Court observed that the burden
was on the e plaintiff to establish that the deceased Battu Mal intended to
gift away half of the property purchased by him to the plaintiff. The Trial
Court has noticed the fact that the plaintiff, except alleging that half of the
suit property belonged to him, had not disclosed how and on what basis such
claim was made in the plaint. After discussing the evidence of P.Ws. 1 to 3 and
after noticing that the defendant had not entered in the witness box but
tendered evidence through her brothers son as D.W. 1, came to the conclusion
that the deceased Battu Mal, in fact, intended to pay half of the consideration
of the sale deed for the benefit of the plaintiff.
Consequently,
the Trial Court decreed the suit of the plaintiff for half share in the suit
property and for rendition of accounts for past three years before the
institution of the suit.
The
defendants, aggrieved by the judgment of the Trial Court, preferred an appeal
to the Additional District Judge, Meerut. The learned District Judge, while confirming the finding of the Trial
Court that the entire sale consideration was given by the deceased Battu Mal,
expressed his inability to endorse the Trial Court's finding that the deceased Battu
Mal intended that the property should b e of the plaintiff as well. The learned
District Judge took note of the fact that in the Plaint it was nowhere averred
that Battu Mal intended the purchase of the suit house to be for the benefit of
the plaintiff as well. The Lower Appellate Court agreed with the contention
advanced on behalf of the defendant that if there was any truth in the claim of
the plaintiff that Battu Mal really intended to s hare the property with the plaintiff,
that should have been pleaded expressly in the plaint itself. After referring
to the pleadings, the Lower Appellate Court examined in detail the oral
evidence given on behalf of the plaintiff. The Lower Appellate Court found that
`the plaintiff's evidence is, thus, extremely meagre and unsatisfactory to
rebut the presumption that the sale deed was obtained benami by Shri Battu
Mal'. The Lower Appellate Court has also given reasons in the judgment why it
differed with the conclusions reached by the Trial Court on this point. The
Lower Appellate Court observed as follows :- "In the present case, the
plaintiff was not the son (natural or adopted) of Sri Battu Mal. The plaintiff
was the son of Sri Battu Mal's cousin and from the mere fact that the plaintiff
lived with and was loved by Sri Battu Mal, we cannot conclude that it was
intended to purchase the house for the plaintiff's benefit." After
referring to a judgment of the Nagpur High Court Nagpur 185], the Lower
Appellate Court held as follows :- "Relying on the case of 6 M I A 53
(P.C.) it was held that where a Hindu father purchases property out of his own
money in the name of his son, the presumption is that he intended to make the
purchase for his own benefit and not for the benefit of his
son................................
...I
need hardly emphasize that the plaintiff being not the son of Sri Battu Mal
could not be held in greater love than a son. His case is, therefore, on no
higher footing and in view of law laid down in the above mentioned cases, I
must hold that the sale was obtained benami by Sri Battu Mal. There should have
been something more than the- mere existence of love too rebut the presumption
of the transaction being benami." In the light of the above conclusion,
the Lower Appellate Court allowed the appeal and consequently dismissed the
suit filed by the plaintiff.
The
plaintiff, aggrieved by the reversing judgement of the Lower Appellate Court,
preferred a Second Appeal to the High Court. The High Court, after going into
the evidence and reappreciating the same, differed from the conclusions reached
on facts by the Lower Appellate Court. The High Court observed as follows :-
"I am of opinion that the proper inference to be drawn in this case on the
aforesaid facts and circumstances was that Lala Battu Mal intended to make the
plaintiff a joint owner of the property with him and that it was not a case of Benami
transaction." The High Court initially delivered the judgment without
hearing the counsel for the defendant. Later on, on an application to recall
the judgment passed without hearing the defendant's counsel, the learned Judge,
after hearing learned counsel for the defendant, confirmed the earlier judgment
by referring to passages from it.
When
the learned counsel, appearing for the defendant before the High Court, invited
its attention to the cases decided by the Privy Council and of this Court, the
High Court, distinguishing those cases, held as follows :- "I then took
note of the fact that the theory of advancement said not to apply in India
because the habit of making Benami purchase was rempant among `the natives'
which was the name given to us by the British. It is said that the theory
applied only in England. In then noticed the change that
has over taken our country since the first pronouncement of the Privy Council
on which the pronouncements of the Privy Council in Guran Ditta and Kothandarama
[AIR 1925 P.C. 1981] were based. I observed that the presumptions, which could
be raised more than a century ago, can longer be raised in the present day
social conditions and the said decisions of the Privy Council must accordingly
be applied with some caution. I then took note of the law declared by the
Supreme Curt in S.C. 727], wherein the true test fr determining whether a
transaction was Benami or not was laid down to be that of intention and instead
of presuming that the purchase made by Lala Battu Mal was Benami in so far as
the plaintiff was concerned, and that the theory of advancement not being
applicable in India, the plaintiff could not be said to have had an equal share
in the property on account of his name having been joined as a co-purchaser by Lala
Battu Mal unless it were proved that Lala Battu Mal had, in fact, made a gift
of an equal share in the property when he purchased it in the plaintiff's name,
I looked at the surrounding facts and circumstances in an attempt to find out
the intention, with which Lala Battu Mal joined the plaintiff's name as a
co-purchaser with him in the sale deed of the property in question and on that
test according to the view taken by me, the surrounding facts and circumstances
all lead t the inference that when Lala Battu Mal joined the plaintiff as a
co-purchaser with him and described him as his adopted son living under his
guardianship, he intended to make the plaintiff a joint equal owner in the
property with him." Ultimately, the High Court held as follows :- "It
rested n the facts and circumstances brought out by the evidence on the facts
on the record. One fact which weigh ed with me considerably was the fact that
the purchase was made by Lala Battu Mal in the joint names f himself and the
plaintiff and that there was nothing secretive about the transaction." On
the basis of the said conclusions, the High Court allowed the Second Appeal,
set aside the judgment of the Lower Appellate Court and decreed the suit of t
he plaintiff.
The
defendant aggrieved by the judgment of the High Court has filed this appeal.
Mr.
Salve, learned senior counsel appearing for the appellant, submitted that the
High Court went wrong in reappreciating the oral evidence and also
distinguishing the case which are directly on point and allowing the Second
Appeal. He placed reliance on Guran Ditta's case (supra), which has been
referred to with approval in Bhim Singh's case (supra) by this Court. According
to the learned counsel, in the light of law settled in these cases, the
Judgment of the High Court is liable to be set aside and that of the Lower
Appellate Court has to be restored.
Mr. Rakesh
K. Sharma, learned counsel appearing for the plaintiff, supporting the judgment
of the High Court, submitted that on the facts of this case the High Curt was
right in distinguishing the cases relied on by the learned counsel for the
defendant.
We
have considered the rival submissions.
At the
outset, we would like to point out that the findings on facts by the Lower
Appellate Court as a final Court on facts, are based on appreciation of
evidence and the same cannot be treated as perverse or based on no evidence.
That being the position, were] are of the view that the High Court, after reappreciating
the evidence and without finding that the conclusions reached by the Lower
Appellate Court were not based on the evidence, reversed the conclusions on
facts on the ground that the view taken by it was also a possible view n the
facts. The High Court, it is well settled, while exercising jurisdiction under
Section 100, C.P.C., cannot reverse the findings of the Lower Appellate Court
on facts merely on the ground that on the facts found by the Lower Appellate
Court another view was possible.
In Bhim
Singh's case (supra), this Curt, after considering the number of cases on an
identical issue, held as follows ;- "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 t he
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."
Aloke Mitra
[1981 (1) SCR 943], this Court considered the similar issue and held as follows
:- "The law in this matter is not in doubt and is authoritatively stated
by a long line of decisions of the Privy Council starting from the well known
case of Gopeekrist Gosain V. Gungapersaud Gosain to Sura Lakshmiah Chetty V. Kothandarama
Pillai and of this Court in Shree Meenakshi Mills Ltd. V. CIT. As observed by
Knight Bruce L.J. in Gopeekrist Gosain's case, the doctrine of advancement is
not applicable in India, so as to raise the question of a
resulting trust.
When a
property is purchased by a husband in the name of his wife, or by a father in
the name of his son, it must be presumed that they are benamidars, and if they
claim it as their own by alleging that the husband or the father intended to
make a gift f the property to them, the onus rests upon them to establish such
a gift. In Sura Lakshmiah Chetty's case, the law was stated with clarity by Sir
John Edge in these words ;
"There
can be no doubt now that a purchase in India by a native of India of property
in India in the name of his wife unexplained by other proved or admitted facts
is to be regarded as a benami transaction, by which the beneficial interest in
the property is in the husband, although the ostensible title is in the
wife." It is but axiomatic that a benami transaction does not vest any
title in the banamidar but vests it in the real owner. When the benamidar is in
possession of the property standing in h is name, he is in a sense the trustee
for the real owner, he is only a name-lender or an alias for the real owner. In
Petheperumal Chetty v. Muniandy Servai, the Judicial Committee quoted with
approval the following passage from Mayne's Hindu Law 7th ed., para 446 :
"Where
a transaction is once made out to be a mere benami, it is evident that the benamidar
absolutely disappears from the title. His name is simply an alias for that of
the person beneficially interested." The cardinal distinction between a
trustee known to English law and a benamidar lies in the fact that a trustee is
the legal owner of the property standing in his name and cestui que trust is
only a beneficial owner, whereas in the case of a benami transaction the real
owner has got the legal title through the property is i the name of the benamidar.
It is well settled that the real owner can deal with the property without
reference to the latter. In Gur Narayan V. Shoo Lal Singh, the Judicial
Committee referred to the judgment of Sir George Farwell in Mst. Bilas Kunwar
v. Dasraj Ranjit Singh, where it was observed that a benami transaction had a
curious resemblance to the doctrine of English law that the trust of the legal
estate results to the man who pays the purchase-money, and went on to say :
".....the
benamidar has not beneficial interest in the property or business that stands
in his name; he represents, in fact, the real owner, and s far as their
relative legal position is concerned he is a mere trustee for him." In Guran
Ditta V. Ram, Ditta, the judicial Committee reiterated the principle laid down
in Gopeekrist Gosain's case and observed that in case of a benami transaction,
there is a resulting trust in favour of t he person providing the purchase
money." In the light of the above exposition of law by this Court and in
the light of the findings of the Lower Appellate Court, the judgment of the
High Court, on reappreciation of evidence, cannot be upheld. We have noticed
earlier the vagueness in the plaint about non- disclosure of how and on what
basis the plaintiff claimed partition in the suit property. We have also
noticed that the Trial Court and the Lower Appellate Court noticed this aspect.
The Lower Appellate Court also found that the plaintiff's evidence was
extremely meagre and unsatisfactory. Taking all factors into consideration, the
Lower Appellate Court found that Battu Mal did not intend to purchase the house
for the Plaintiff's benefit. This finding has been upset by the High Court
illegally by re- appreciating the evidence. This is not permissible.
The
High Court was not justified in ignoring/distinguishing the law laid down by
this Court in Bhim Singh's case without properly appreciating the ratio of that
decision.
In the
circumstances, we set aside the judgment of the High Court under appeal and
restore that of the Lower Appellate Court in First Appeal No. 130 of 1963.
In the
result, the appeal succeeds and is allowed accordingly with no order as to
costs.
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