G.Mahalingappa
Vs. G.M. Savitha [2005] Insc 405 (9 August 2005)
D.M.
Dharmadhikari & Tarun Chatterjee Tarun Chatterjee, J.
This
is an unfortunate litigation between a father and his married daughter on the
right of ownership of a house measuring about 40 feet by 30 feet in Khata No.54
of Garehatty Village in Chitradurga Taluk in the State of Karnataka (hereinafter referred to as the
"suit property").
The
appellant, who suffered defeat in second appeal before the High Court at Bangalore (Karnataka), filed a Special Leave
Petition which on admission got registered as a regular appeal being Civil
Appeal No. 2867/2000 in this Court.
The
appellant is the father of the respondent. The suit property was purchased by
the appellant in the name of the respondent by a registered sale deed dated
24th of August, 1970 when the respondent was a minor of seven years of age.
Subsequently, her marriage was settled and at that point of time she was
assured that the respondent shall not be disturbed as she was given to understand
that the suit property was her own property. She was married to one Shri C.Thippeswamy
on 4th of December, 1980. Relationship between the appellant and the respondent
was cordial till 8th of October, 1983, and only thereafter relationship became
strained. At that stage she asked for vacation of the suit property not only
from the appellant and his family but also from the tenants who were defendants
2 to 5 in the suit and for payment of rent to her. The appellant and the
tenants had, however, refused to vacate their respective portions of the suit
property in their possession or to pay rent to her. Accordingly, the respondent
was constrained to file the suit for declaration of title and recovery of
possession in respect of the suit property on the averment that since the suit
property stood in her name, and the same was purchased for the benefit of the
respondent and as a security for her marriage she was entitled to a decree for
declaration and possession.
The
suit was however filed on 5th of July, 1984.
The
appellant resisted the claim of the respondent on various grounds by filing a
written statement. According to the appellant, the suit property was purchased
by his own funds in the benami of her daughter. He also denied the allegation
that the suit property was purchased for and on behalf of the respondent under
the sale deed dated 24th
August, 1970 nor it
was purchased as a security for her marriage. According to him, the respondent
was born on 5th
November, 1963 and
immediately after the birth an astrologer was contacted from whom the appellant
ascertained that she was born on an auspicious nakshatra and immediately
thereafter he made up his mind to purchase a site with a view to construct a
house for his residence. Accordingly, he purchased the suit property for a sum
of Rs.500/-. It was not the intention of the appellant to create any benefit,
any right in the suit property to the respondent. However, in the year 1984,
the suit property was bequeathed by a Will in favour of the respondent and two
sons. After the suit property was purchased in the benami of the respondent, he
made improvement of the suit property and in doing so he mortgaged the suit
property in favour of one Srinivasa Setty and obtained a loan of Rs.3,000/- on 15th September, 1972. Thereafter, he purchased another
site adjacent to the suit property under a sale deed dated 23rd May, 1972. That sale deed was also obtained
in the name of the respondent out of love and affection. At that time the
respondent was about nine years old. The rest of the mortgaged amount was
utilized for construction of the back portions of the house after spending his
own money. After improving the same he constructed four portions which were in
occupation of the tenants, and he himself discharged the mortgaged loan and
other loans incurred for construction of the suit property. He also obtained
permission of the Deputy Commissioner for alienation of the suit property for
non-agricultural purposes. He paid taxes levied by the Revenue Authorities in
respect of construction of the house. He also paid alienation charges and Kandayam
of the suit property from time to time. Accordingly, the appellant sought for
dismissal of the suit inter alia on the ground that he was the real owner and
in possession of the suit property and the respondent was merely a benamidar in
respect of the same. Parties went into trial with the following issues:
1)
Does the plaintiff prove that she is the owner of the suit property?
2) Is
she entitled to possession of the suit property as contended by her?
3) Is
she entitled for damages as claimed by her?
4) To
what relief the plaintiff was entitled, if any?
An
additional issue was framed which is of the following effect:
Does
defendant No.1 prove that the suit was purchased nominally in the name of the
plaintiff under the circumstances pleaded in the written statement, the
plaintiff is a benamidar and he is the real owner of the suit property, as
contended? Parties went to trial after adducing evidence to support their
respective claims as made out in the pleadings.
Both
the courts found on consideration of the oral and documentary evidence on
record as well as the pleadings that
1) the
appellant had paid the purchase money.
2) the
original title deeds were with the appellant.
3) the
appellant had mortgaged the suit property for raising loan to improve the same.
4) he
paid taxes for the suit property.
5) he
had let out the suit property to defendant Nos. 2 to 5 and collecting rents
from them.
6) the
motive for purchasing the suit property in the name of plaintiff was that the
plaintiff was born on an auspicious nakshatra and the appellant believed that
if the property was purchased in the name of plaintiff/respondent, the
appellant would prosper.
7) the
circumstances surrounding the transaction, relationship of the parties and
subsequent conduct of the appellant tend to show that the transaction was benami
in nature.
On the
aforesaid concurrent findings of fact it was held that the respondent had
failed to prove that she was the real owner of the suit property and that the
appellant was however the real owner of the same and the respondent was only a benamidar
of the appellant.
Accordingly,
the appellate court as well as the trial court dismissed the suit of the
respondent.
Feeling
aggrieved by the concurrent decisions of the appellate court as well as the
trial court, a second appeal was filed before the High Court at Bangalore,
which, however, had set aside the concurrent decisions and decreed the suit of
the respondent only on the ground that the purchase by the appellant in the
name of the respondent was intended for the benefit of the respondent. While
coming to this conclusion, the High Court had taken into consideration the fact
that since the appellant had already executed a Will bequeathing his property
to the respondent and two other sons, which would, according to the High Court,
amply show that the intention of the appellant to purchase the suit property in
the name of the respondent was to benefit the respondent. In our view, this
finding on the face of the record is erroneous and perverse. This finding,
according to us, was arrived at by the High Court in the second appeal without
any material on record to support such finding nor it was based after
considering the oral and documentary evidence as well as the findings of fact
arrived at by the trial court and appellate court. On the other hand, in our
view, the findings of the appellate court as well as the trial court were based
on due consideration of oral and documentary evidence on record and pleadings
of the parties.
To
consider the intention to purchase the suit property for the benefit of the
respondent, in our view, the fact of bequeathing the suit property by executing
a Will by the appellant in favour of respondent and two sons could not at all
be a factor for consideration. The execution of the Will by the appellant in favour
of his sons and the respondent would only indicate that the suit property was
treated as the property of his own and the respondent was never accepted by him
to be a real owner of the same. The other ground on which the concurrent
findings of fact were set aside and suit was decreed is to the following
effect:
"Even
otherwise, as could be gathered from the evidence and representation made at
the Bar, her father used to purchase the property in the name of all his sons
and daughters on auspicious days. It can be clearly gathered that the intention
of the father was to benefit his children to avoid any possible conflict or
dispute that may arise between them with reference to sharing of the properties
after his life time. Therefore, taking the view on equity as well, and the
cumulative circumstances, I am inclined to hold that the plaintiff is entitled
to be held as the owner of the property." We are unable to agree with this
conclusion of the High Court.
It is
difficult to rely on the representation from the Bar that the appellant used to
purchase properties in the names of his children on auspicious days and for
that the intention of the appellant to purchase the suit property for the
benefit of the daughter only must be presumed without having any material to
support this conclusion from the record. We must not forget that the High Court
was dealing with a second appeal which was filed against the concurrent
findings of fact based on consideration of oral and documentary evidence
adduced by the parties and such findings were on sound reasoning.
Even
otherwise, we are of the view that the presumption that the suit property was
purchased for the benefit of the respondent only was amply rebutted by the
appellant by adducing evidence that the suit property, though purchased in the
name of the respondent, was so purchased for the benefit of the appellant and
his family.
As
noted hereinearlier, the appellate court as well as the trial court on
consideration of all the materials including oral and documentary evidence and
on a sound reasoning after considering the pleadings of the parties came to
concurrent findings of fact that purchase of the suit property by the appellant
in the name of the respondent was benami in nature. As noted herein earlier,
the following findings of fact were arrived at by the appellate court and the
trial court to conclude that the transaction in question was benami in nature :-
1) the
appellant had paid the purchase money.
2) the
original title deed was with the appellant. And
3) the
appellant had mortgaged the suit property for raising loan to improve the same.
4) he
paid taxes for the suit property.
5) he
had let out the suit property to defendant Nos. 2 to 5 and collecting rents
from them.
6) the
motive for purchasing the suit property in the name of plaintiff was that the
plaintiff was born on an auspicious nakshatra and the appellant believed that
if the property was purchased in the name of plaintiff/respondent, the
appellant would prosper.
7) the
circumstances surrounding the transaction, relationship of the parties and
subsequent conduct of the appellant tend to show that the transaction was benami
in nature.
Keeping
these concurrent findings of fact in our mind which would conclusively prove
that the transaction in question was benami in nature, let us now consider
whether the appellant was entitled to raise the plea of benami in view of
introduction of the Benami Transaction (Prohibition) Act, 1988 (In short
"Act") and whether the Act was retrospective in operation. If so, in
view of Section 4(2) of the Act, plea of benami in the defence of the appellant
was not available to him.
Before
a two Judges Bench decision of this Court, in the 1989(2) SCC 95 this question
had cropped up. In that decision, it was held that the question of benami
cannot be taken as a plea either in the plaint or in the written statement even
when the sale deed was executed and registered before the introduction of the
Act and when the suit was filed before the Act had come into force. Before we
proceed further, we may remind ourselves of certain provisions of the Act.
Section 2 (a) defines 'benami transactions' which means any transaction in
which property is transferred to one person for a consideration paid or
provided by another person. Section 3 (1) and (2) reads as under:
3(1)
"No person shall enter into any benami transactions.
(2)
Nothing in sub-section(1) shall apply to the purchase of property by any person
in the name of his wife or unmarried daughter and it shall be presumed, unless
the contrary is proved, that the said property had been purchased for the
benefit of wife or the unmarried daughter." (Underlining is ours) Section
4 of the Act prohibits the right to recover property held benami. It reads as
under:
4(1)
"No suit, claim or action to enforce any right in respect of any property
held benami against the person in whose name the property is held or against
any other person shall lie by or on behalf of a person claiming to be the real
owner of such property.
(2) No
defence based on any right in respect of any property held benami, whether
against the person in whose name the property is held or against any other
person, shall be allowed in any suit, claim or action by or on behalf of a
person claiming to be the real owner of such property." (underlining is
ours) Since in this case, we are concerned with the question whether the
appellant was entitled to raise the plea of benami in his defence in view of
the bar imposed in Section 4(2) of the Act, let us now confine ourselves to the
bar imposed in Section 4(2) of the Act of taking this plea in his defence and
to the question of retrospective operation of this section or this provision is
prospective in operation.
Now,
therefore, the question arises is whether under section 4(2) of the Act, defence
can be allowed to be raised on any right in respect of any property held benami,
whether against the person in whose name the property is held or against any
other person, shall be allowed in any suit, claim or action or on behalf of a
person claiming to be real owner of such property. As noted already, this
question cropped up for decision before this Court in the case of Mithilesh
fact, the retrospective operation of this provision, as noted herein earlier,
was answered in the affirmative in the aforesaid decision.
However,
the correctness of that decision was doubted and an order was passed by this
Court subsequently referring this question of retrospectivity for decision to a
3-Judges Bench of this Court. In the Chandrasekharan (Dead) by LRs. 1995 (2)
SCC 630, S.B. Majmudar, J. (As His Lordship then was) writing the judgment for
the Three Judges Bench could not agree with the views expressed in Mithilesh Kumari's
case and held that the Act was prospective in nature and it has no
retrospective operation excepting certain observations made in respect of some
cases which would be mentioned hereinafter. In paragraph 10 it was observed as
follows:- "though the Law Commission recommended retrospective
applicability of the proposed legislation, Parliament did not make the Act or
any of its sections retrospective in its wisdom.". Thereafter on a careful
consideration of the provisions made under sections 3 and 4 of the Act, it was
observed:
"A
mere look at the above provisions shows that the prohibition under Section 3(1)
is against persons who are to enter into benami transactions and it has laid
down that no person shall enter into any benami transaction which obviously
means from the date on which this prohibition comes into operation i.e. w.e.f.
5/9/1988. That takes care of future benami transactions. We are not concerned
with sub-section (2) but sub-section (3) of Section 3 also throws light on this
aspect. As seen above, it states that whoever enters into any benami
transaction shall be punishable with imprisonment for a term which may extend
to three years or with find or with both. Therefore, the provision creates a
new offence of entering into such benami transaction. It is made non-cognizable
and bailable as laid down under sub-section (4) It is obvious that when a
statutory provision creates new liability and new offence, it would naturally
have prospective operation and would cover only those offences which take place
after Section 3(1) comes into operation." (Underlining is ours).
In
paragraph 11 of the said decision of this Court, the Supreme Court further
observed "On the contrary, clear legislative intention is seen from the
words "no such claim, suit or action shall lie", meaning thereby no
such suit, claim or action shall be permitted to be filed or entertained or
admitted to the portals of any court for seeking such a relief after coming
into force of Section 4(1)." (underline is ours).
In the
same paragraph the Supreme Court observed:
"
With respect, the view taken that Section 4(1) would apply even to such pending
suits which were already filed and entertained prior to the date when the
section came into force and which has the effect of destroying the then
existing right of plaintiff in connection with the suit property cannot be
sustained in the face of the clear language of Section 4(1). It has to be
visualized that the legislature in its wisdom has not expressly made Section 4
retrospective. Then to imply by necessary implication that Section 4 would have
retrospective effect and would cover pending litigations filed prior to coming
into force of the section would amount to taking a view which would run counter
to the legislative scheme and intent projected by various provisions of the Act
to which we have referred earlier. It is, however, true as held by the Division
Bench that on the express language of Section 4(1) any right inhering in the
real owner in respect of any property held benami would get effaced once
Section 4(1) operated, even if such transaction had been entered into prior to
the coming into operation of Section 4(1), and henceafter Section 4(1) applied
no suit can lie in respect to such a past benami transaction. To that extent
the section may be retroactive." In our view, similar is the position in
law on the question of retrospectivity of section 4(2) of the Act.
Finally,
this Court in the aforesaid decision held that the taking the view that under
Section 4(2), in all suits filed by persons in whose names properties are held
no defence can be allowed at any future stage of the proceedings that the
properties are held benami cannot be sustained. It was also held that Section
4(2) will have a limited operation even in cases of pending suits after Section
4(2) had come into force, if such defences are not already allowed. The Padmini
Chandrasekharan (Dead) by LRs. 1995 (2) SCC 630 which overruled the decision of
two Judges Bench in the case of Mithilesh C.Narayanan AIR 2000 SC 589. In view
of the aforesaid, this question is, therefore, no longer res integra.
Therefore,
we are now to consider in this case whether the facts disclosed would indicate
that even after coming into force of the Act the defence under Secion 4 can be
available. Admittedly, the transaction in question was registered on 24th
August, 1970. The suit was filed on 5th of July 1984 which was long before
coming into force of the Act. It is an admitted position that the written
statement in the suit taking plea of benami was also filed by the appellant
long before the Act had come into force. Therefore, it was not a case where
Section 4(2) of the Act will have a limited operation in the pending suit after
Section 4(2) of the Act had come into operation. It is true that the judgment
of the trial court was delivered after the Act had come into force but that
could not fetter the right of the appellant to take the plea of benami in his defence.
Since the Act cannot have any retrospective operation in the facts and
circumstances of the present case, as held by this Court in the aforesaid
decision, we are therefore of the view that the appellant was entitled to raise
the plea of benami in the written statement and to show and prove that he was
the real owner of the suit property and that the respondent was only his benamidar.
Before
parting with this judgment, we may take into consideration of a short
submission of the learned counsel for the respondent. The submission is that
since the suit property was purchased by the appellant in the name of the
respondent, the suit property must be held to have been purchased by him for
the benefit of the respondent. Section 3 deals with Prohibition of benami
transaction. Sub-section (1) clearly prohibits that no person shall enter into benami
transaction. However, sub-section (2) of Section 3 clearly says that nothing in
sub-section (1) shall apply to purchase of property of any person in the name
of his wife, unmarried daughter and it shall be presumed, unless the contrary
is proved, that suit property had been purchased for the benefit of the
unmarried daughter.
Section
3(2) makes it abundantly clear that if a property is purchased in the name of
an unmarried daughter for her benefit, that would only be a presumption but the
presumption can be rebutted by the person who is alleging to be the real owner
of the property by production of evidences or other materials before the court.
In this case, the trial court as well as the appellate court concurrently found
that although the suit property was purchased in the name of the respondent but
the same was purchased for the interest of the appellant. We are therefore of
the opinion that even if the presumption under section 3(2) of the Act arose
because of purchase of the suit property by the father (in this case appellant
) in the name of his daughter ( in this case respondent ), that presumption got
rebutted as the appellant had successfully succeeded by production of cogent
evidence to prove that the suit property was purchased in the benami of the
respondent for his own benefit.
Let us
now consider whether the concurrent findings of fact could be set aside by the
High Court in the second appeal. It is well settled by diverse decisions of
this Court that the High Court in second appeal is entitled to interfere with
the concurrent findings of fact if the said concurrent findings of fact are
based on non- consideration of an important piece of evidence in the nature of
admission of one of the party to the suit, which is overlooked by the two
courts below ( See [2003 (7) SCC 481, Deva (Dead) Through that under section
100 of the Code of Civil Procedure, High Court cannot interfere with concurrent
findings of facts of the courts below without insufficient and just reasons.
(See [2003(7)SCC 52, Sayeda entitled to set aside concurrent findings of fact
by giving its own findings contrary to the evidence on record. (See [2001 (4)
SCC As held herein earlier the High Court had set aside the concurrent findings
of fact not on consideration of the evidence adduced by the parties but set
aside the concurrent findings of fact on the basis of findings contrary to the
evidence on record and without considering the findings of fact arrived at by
the appellate court and the trial court. From the judgment of the High Court we
further find that the concurrent findings of fact were set aside not on
consideration of the findings of fact arrived at by the courts below but only
on the basis of the arguments of the learned Advocate of the respondent.
This
was also not permissible to the High Court in Second Appeal to come to a
contrary findings of its own only on the basis of the arguments of the learned
counsel for the respondent without considering the findings of the trial court
as well as the appellate Sarju Pandey (Dead) by LRs & Ors.] ). It is
equally settled that High Court in second appeal is not entitled to interfere
with the concurrent findings of fact arrived at by the courts below until and
unless it is found that the concurrent findings of fact were perverse and not
based on sound reasoning. We ourselves considered the evidence on record as
well as the findings of fact arrived at by the two courts below.
From
such consideration we do not find that the concurrent findings of fact arrived
at by the appellate court as well as the trial court were either perverse or
without any reason or based on non-consideration of important piece of evidence
or admission of some of the parties.
We are
therefore of the view that the High Court was not justified in interfering with
the concurrent findings of fact arrived at by the appellate court as well as
the trial court which findings were rendered on consideration of the pleadings
as well as the material (oral and documentary) evidence on record.
For
the reasons aforesaid this appeal is allowed. The judgment of the High Court
impugned in this Court is set aside and the judgments of the trial court as
well as the appellate court are affirmed.
The
suit filed by the respondent shall stand dismissed.
There
will be no order as to costs.
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