Full Judgment Text
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PETITIONER:
JAYDAYAL PODDAR (DECEASED) THROUGH HIS L.RS ANDANOTHER
Vs.
RESPONDENT:
MST. BIBI HAZRA AND ORS.
DATE OF JUDGMENT19/10/1973
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
KRISHNAIYER, V.R.
CITATION:
1974 AIR 171 1974 SCR (1) 70
1974 SCC (1) 3
CITATOR INFO :
F 1977 SC 796 (26)
RF 1978 SC1362 (35)
R 1980 SC 727 (17)
ACT:
Benami Transaction-Burden of proving that a particular
transaction is benami lies on the person who asserts it-This
burden has to be discharged by definite proof-Essence of
benami is the intention of parties-Circumstances to be taken
into consideration for determining whether a transaction is
benami or real-Source of purchase money if the most
important test.
HEADNOTE:
The burden of proving that a particular sale is benami and
the apparent purchaser is not the real owner, always rests
on the person asserting it to be so. This burden has to be
strictly discharged by adducing legal evidence of a definite
character which would either directly prove the fact of
Benami or establish circumstances unerringly raising an
inference of that fact. The essence of a benanii is the
intention of the party or parties concerned; and not
unoften, such intention is shrouded in a thick veil which
cannot be easily pierced through. But such difficulties do
not relieve the person asserting the transaction to be
benami of any part of the serious onus that rests on him;
nor justify the acceptance of mere conjectures or surmises,
as a substitute for proof. Though the question, whether a
particular sale is Benami or not, is largely one of fact,
and for determining this question, no absolute formulae or
acid tests, uniformally applicable in all situations, can be
laid down; yet in weighing the probabilities and for
gathering the relevant indicia, the Courts are usually
guided by these circumstances : (1) the source from which
the purchase money came; (2) the nature and possession of
the property, after the purchase; (3) motive, if any, for
giving the transaction a benami color; (4) the position of
the parties and the relationship if any, between the
claimant and the alleged benamidar; (5) the custody of the
title-deeds after the sale and (6) the conduct of the
parties concerned in dealing with the property after the
sale.
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These indicia are not exhaustive and their efficacy varies
according to the facts of each case. Nevertheless the
source whence the purchase money came. is by far, the most
important test for determining whether the sale standing in
the name of one person, is in reality for the benefit of
another. [91H-92E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : CiVil Appeal No. 1759 of
1967.
From the judgment and Decree dated the 31st October, 1962 of
the Patna High Court in First Appeal No. 619 of 1958.
V. S. Desai and R. C. Pra, for the appellant.
L. M. Singhvi, U.P. Singh and A. T. Patra, for respondent
No. 1.
The Judgment of the Court was delivered by
SARKARIA, J.-This appeal by certificate is directed against
the appellate judgment and decree, dated the 31st October,
1962, of the High Court of Judicature at Patna.
The plaintiffs-appellants instituted a suit on 30-6-1956, in
the Court of Subordinate Judge, Samastipur for a declaration
of title and possession in respect of a pucca house in Plot
No. 216, Ward III of Samastipur Municipality. It was
alleged that Abdul Karim (Def.
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No. 1) had out of his own funds purchased this house in the
name of his wife Mst. Hakimunnissa by a registered sale-
deed dated 10-5-1941, from one Abdul Motilib. After the
purchase, Defendant No.1, who was in possession of the
house, executed two mortgage deeds, date 6-1-1948 and 28-7-
1948, in favour of his son-in-law, Abdul Latif (Defendent
No. 3), husband of Mst. Bibi Hazra (Defendant No. 2).
Abdulkarim (Defendant No. 1), in order to clear the mortgage
dues and for meeting other necessities, agreed to sell the
house to Plaintiff No. 1 for a consideration of Rs.
20,000/-. Pursuant to this agreement of sale, Plaintiff No.
1 paid a sum of Rs. 10,209-4-0, by installments to Defendant
No. 1. Another sum of Rs. 2,990-12-0 was left with Plaintiff
No. 2, for payment of the mortgage debts of Defendant No. 3,
Rs. 6,800/-, the balance of the price, was paid in cash to
the vendor at the time of the registration of the sale-deed
on 25-5-1951. Thereafter Plaintiff No. 2 got this house
mutuated in the Municipal records in her favour. Despite
the sale, defendants Nos, 1 to 3, acting in collusion,
continued to be illegal possession of the house.
Defendant No. 1, while admitting the exception of the sale
deed dated. 25-5-1951, pleaded that it was without
consideration. He however, asserted that the house had been
purchased by him, and that Mst. Hakimunnissa was only his
benamidar. The suit was registered by Bibi Hazra, Defendant
No. 2, on the ground that the house had been purchased by
her mother, Mst. Hakimunnissa with her own money, she being
a lady of considerable means; and, on Mst. Hakimunnissa’s
death in 1944, she (Mst. Hazra) inherited and came in
possession of 12 annas share therein, while the remaining 4
annas share devolved on Defendant No.1 according to
Mohammedan Law by which the parties. were governed in
matters of succession. Mst. Hazra further pleaded that the
sale deed. dated 24-5-1951 executed by Defendant No. 1. in
favour of Plaintiff No. 2, being a fictitious and collusive
document, was ineffective qua her share in the house.
The trial court held that "the disputed house did really
belong to Abdul Karim, and Mst. Hakimunnissa was his
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benamidar in the sale deed (Ex.D/1) by which the house was
acquired", and as such Mst. Hazra (Defendant 2) had no
interest in it. It further found that the sale-deed in
favour of Plaintiff No. 2 executed by Defendant No. 1 in
respect of the suit house was "valid, genuine and for a
consideration". In the result, it decreed the plaintiffs’
suit.
In First Appeal No. 619 of 1958 preferred by Mst. Hazra
(Defendant No. 2), the High Court reversing the finding.of
the trial court, held that the plaintiffs had failed to show
that Mst. Hakimunnissa in whose name the sale-deed (Ex.
D/1) dated 10-5-1941 stood, was only a benamidar and not the
real purchaser In consequence, plaintiffs" suit was
dismissed with regard to 12 annas share of Bibi Hazra and a
decree for joint possession of 4 annas share of the vendor
(Defendant 1) was passed in favour of plaintiffs.
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
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would either directly prove the fact of Benami or establish
circumstances ,unerringly and reasonably raising an
inference of that fact. The essence ,of a benami is the
intention of the party or parties concerned; and not unoften
such intention is shrouded in a thick veil which cannot ’be
,easily pierced through. But such difficulties do not
relieve the person asserting the transaction to be benami of
any part of the serious onus that rests on him; nor justify
the acceptance of mere conjectures or .surmises, as a
substitute for proof. The reason is that a deed is a solemn
document prepared and executed after considerable
deliberation and the ,person expressly shown as the
purchaser or transferee in the deed, starts with the
initial presumption in his favour that the apparent state
,of affairs is the real state of affairs. Though the
question, whether a particular sale is Benami or not, is
largely one of fact, and for determining this question, no
absolute formulae or acid tests, uniformally :applicable in
all situations, can be laid down; yet in weighing the pro-
babilities and for gathering the relevant indicia, the
courts are usually guided by these circumstances : (1) the
source from which ’the purchase money came; (2) the nature
and possession of the property, after the purchase; (3)
motive, if any, for giving the transaction a benami color;
(4) the position of the parties and the relationship, if any
between the claimant and the alleged benamidar; (5) the cus-
tody of the title-deeds after the sale and (6) the conduct
of the parties concerned in dealing with the property after
the sale.
The above indicia are not exhaustive and their efficacy
varies according to the facts of each case. Nevertheless
no. 1, viz. the source whence The purchase money came, is by
far the most important test for determining whether the sale
standing in the name of one person, is in ,reality for the
benefit of another.
The question in the case is to be considered in the light of
the above indicia. As regards circumstance (1), the High
Court noted Abdul Karim (Defendant No.1) who was the best
informed person to depose to the source from which the
purchase money was derived did not when examined as D.W.7,
specifically testify that the money had been paid ’from his
personal fund. In cross-examination, he admitted that he
had only two kathas of ancestral land with him; he had a
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tailoring. shop in which the entire capital invested was to
the tune of Rs. 1,000/-or Rs. 1,500/- only; he did not keep
any accounts; he had six members of his family; his rental
income was Rs. 12/- per month only. The High Court was thus
right in holding that these facts admitted by Abdul Karim
(Defendant No.1) presented a very "gloomy picture of Abdul
Karim’s financial condition and resources" and that he was
not in a position to invest Rs. 4300/- for purchase of the
house in ,question. The High Court after a survey of the
other evidence on the .record further came to the conclusion
that Mst. Hakimunnissa had means of her own and her first
husband and her son Moktadi by the first husband were well
to do person. Moktadi had a big, shop of ,tobacco, scent
oil, zarda etc.
Mr. Desai, learned Counsel for the appellant assails this
finding of the High Court on the ground that it was based
on the oral evidence
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of Abdul Rauf (D.W. 9) and Mohd. Shafiullah (D.W. 10), who
according to their own showing, had scant knowledge, about
the affairs of Abdul Karim, Mst. Hakimunnissa or Bibi
Hazra. It was stressed that the trial court had rightly
discarded the useless evidence of these witnesses.
It is true that the evidence of these two witnesses suffered
from infirmities; but the finding of the High Court on this
point is not based on their evidence alone. The High Court
also took into, account the evidence of Bibi Hazara (D.W.13)
who stated that she had received Rs. 1000/- or Rs. 1500/- as
her share of the cash on the death of her mother. She was
in a position to know about the financial condition of her
father and mother. According to her, Abdul Karim, had given
up tailoring long ago and he was running only a petty shop
of tobacco, tikia, hardly earning Re. 1/- or Rs. 2/- per
day. Then there was the documentary evidence furnished by
the sale-deed (C-1/11) dated 1-4-42, executed by Mst.
Hakimunnissa whereby she sold a house to Chaudhary Kishan
Chand. It was recited in this deed that in order to
purchase the house in dispute she (Hakimunnissa) had to
incur certain debts for payment of a part of toe
consideration for the sale-deed (Exh.D/1). The sale in ques-
tion was effected about 11 months earlier on May 10,1941.
This recital being ante litem motam, was a valuable piece of
evidence to. show that the consideration of the sale was
paid by Mst. Hakimunnissa, the apparent purchaser of the
house, from her own resources.
Mr. Desai next contended that the recitals in the sale-deed
(Ex.D/ 1) not only neutralise the effect of the recitals in
the sale-deed (Ex.C(1)-II) but also show that the money for
purchasing the house must have been paid by Abdul Karim from
his own pocket. Learned Counsel invited our attention to
two recitals in Exh.D/1 which are to the effect :
1. "I, the executant negotiated with Abdul
Karim the tenant aforesaid regarding the sale
of the said house. The said tenant on
receiving the. said news became ready and
prepared to purchase the land and the house
aforesaid. 1, the executant finalised the
negotiation for sale of the said house, with
the said tenant and fixed the consideration
money at Rs. 4,300/-."
2. "Accordingly 1, the executant, have held
out full assurance and satisfaction to the
claimant and her husband in respect thereof.
The husband of the claimant and the claimant
get this. deed ’of sale executed having con-
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fidence in and reliance on the, assurance
given by me, the executant, without making
enquiry about encumbrance and defect in title
and without seeing the index."
This contention does not appear to be tenable. It is not
proper to tear the above recitals out of the context and
read them in isolation. They must be read with the
preceding and succeeding contents of the document (Ex.D/1)
and also the connected recitals in the sale-deed (C-(1)-II)
dated 1st April, 1942. In the latter deed, Hakimunnissa
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inter-alia stated that she had previously taken in mortagage
plot No. 216, per registered mortgage bond, dated 13-9-1940,
from one Sh. Abdul Motlib, and later on she had purchased
that plot, including the house, for Rs. 4300/- under the
sale-deed, dated 10th May 1941 (Ex.D/1) from this Motlib.
It is significant to note that Abdul Karim (Defendant No 1)
had signed this deed as an attesting witness. In the deed
Ex.D/1, there is a clear reference to this previous mortgage
executed in favour of Mst. Hakimunnissa, and the vendor
therein is repeatedly referring to Mst. Hakimunnissa as the
"claimant" (creditor); and the payment of these past debts
is mentioned as a reason for making the sale by the vendor
Motlib. The learned judges of the High Court have rightly
construed these recitals as indicative of Hakimunnissa being
the real purchaser of the property.
The evidence with regard to possession of the disputed house
was to the effect that Abdul Karim and Hakimunnissa were in
occupation ,of the house both before and after the sale.
Even according to the trial court "such joint possession was
not at all material in the present case for determining the
benami character or otherwise of the transaction.
No evidence whatever was led to show that there was any
motive or reason for giving a benami character to the
transaction. Abdul Karim who had special knowledge of the
circumstances bearing on such motive, if any, did not say a
word on this point. There was not even an oblique
suggestion that Abdul Karim was heavily under debt and in
order to avoid payment of such debts, he thought it fit to
acquire the house in the name of his wife.
No capital can be made out of the circumstance that the
negotiations for the purchase of the house were earned out
by Abdul Karim and a sum of Rs. 1700/- towards the part of
the price was paid before the Sub-Registrar by him. It is
in evidence that Hakimunnissa was a Pardanishin lady, and
naturally therefore it was her husband who used to look
after her affairs. Neither the actual delivery of Rs.
1700/- before the Sub-Registrar by Abdul Karim, nor the
recitals made in Ex.D/1 could be accepted as evidence of
Abdul Karim being the real purchaser. He was acting only as
an agent of his Pardanishin wife. For the same reasons, no
significance can be attached to the fact that the sale-deed
remained in the custody of the husband.
Learned Counsel next referred to the two mortgage deeds,
Exhs. C-1 and C(1)-1, dated 6th January, 1948 and 26th
July, 1948, respectively, executed by Abdul Karim in favour
of Abdul Latif (Defendant No. 3). Emphasis was laid on the
fact that Abdul Latif was the son-in-law of Abdul Karim and
the husband of Bibi Hazra (Defendant No. 2). We have also
adverted to the discussion of this evidence in the judgment
of the Sub-ordinate Judge. In agreement with the High
Court, we think, that this evidence also is not of a
clinching character; firstly, Abdul Latif was not only the
husband of Bibi Hazra-, he was also the nephew of Abdul
Karim; secondly, these mortgages were brought into existence
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after the controversy had arisen. Bibi Hazra had alleged
that these transactions had been brought about by
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her husband calendestinely in collusion with her father. In
this connection, it is noteworthy that on the death of
Hakimunnissa, her husband had also acquired 4 annas share in
it. ’Mere was, therefore, ground to suspect that Abdul
Karim, taking advantage of his being a sharer in the house,
brought into existence these mortgages in collusion with his
nephew, to grab the entire property of Mst. Hakimunnissa.
Learned Counsel further referred to a certified copy of the
order, dated 22-11-1950 (Ex.E.1) and urged that this order
whereby Mst. Hakimunnisa is claim of her being the. real
owner of the attached house was dismissed, was a weighty
piece of evidence admissible under s. 13 of the Evidence
Act, and, taken in conjunction with the judgment, dated 22-
11-1950, vide Ex.E(1) 1 and the recitals in the deed, was
sufficient to show that Mst.- Hakimunnissa was only a
benamidar of her husband.
It is common ground that the house in question, at one time,
belonged to Abdul Motlib and he had rented it out to Abdul
Karim, the original owner, Motlib, had mortgaged a part of
this house to one Fakira Lal Sahu on 28-9-1947. Sahu filed
a money suit against four persons (1) Abdul Karim; (2) Mst.
Hakimunnissa (3) Bibi Khatoon and (4) Sh. Motlib inter-alia
for the recovery of rent with interest for the period, 21-3-
1941 to 20-3-1942. The suit was partly decreed against
Abdul Karim alone and was dismissed as against Hakimunnissa
by the Munsiff on 1-3-1943 vide Exh.1-II. Abdul Karim’s
appeal against that decree was dismissed and the decree of
the trial court with some modification, was maintained.
Sahu then took out execution of his decree against the
judgment-debtor, Abdul Karim. Mst. Hakimunnissa filed an
application under s.47 (under 0.21, r.57,) of the Code of
Civil Procedure claiming that the attached house in plot 216
was her exclusive property and her husband had no right or
interest in it. Her application was dismissed by the
Munsiff on 22-11-1943 with the finding that Mst.
Hakimunnissa was only a benamidar of the judgment debtor,
Abdul Karim. Her appeal against that order was disallowed
by the Appellate Court on 21-2-1944 vide Ex. 10.
Mr. Desai very fairly conceded that this order, dated 22-11-
1943, did not operate as res judicata because the Munsiff
was not competent to decide the subsequent suit from which
the present appeal has arisen; but he urged that this order
had become final because no suit under Order 21, Rule 103 of
the Code of Civil Procedure was filed by Mst. Hakimunnissa
to establish her right, and, as such, this order, even if
not conclusive, was a very efficacious and presumptive proof
of the fact that Mst. Hakimunnissa was merely a benamidar
in respect of the house in dispute.
The contention is attractive but does not stand a close
examination. It,is to be borne in mind that Mst.
Hakimunnissa died only a few months after the dismissal of
her appeal before the limitation for filling the suit under
Order 21, Rule 103 had run out. Assuming this evidence was
admissible under s.13 of the Evidence Act, it was
inconclusive and had been out-weighed by the other
determinative circumstances and the preponderating
probability that the purchase money came from Mst.
Hakimunnissa and not from Abdul Karim.
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The judgment Exh.E(1)- in the rent suit filed in 1949-50 by
Abdul Karim against Sh. Mohd. Yakub with regard to a shop
attached to the- disputed house could not, as rightly
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observed by the High Court, be used against Mst.
Hakimunnissa who was not a party to those proceedings.
Defendant No. 2 had also brought on the record some rent
receipts and Municipal receipts, A(2)-II to A(5)-II.. Ex.
A-11 stands in the name of Mst. Hakimunnissa. It evidences
payment of platform tax by her to the Municipality. It is
true that the date on it was not decipherable; but it was
obvious that this document concerned the disputed house and
related to a period when Mst. Hakimunnissa was alive. This
evidence further strengthened the conclusion that Mst.
Hakiinunnissa in her life time, and, after her death, her
daughter Bibi Hazra, were in enjoyment of and dealing with
the house in dispute as owners thereof.
Keeping in view the totality of the circumstances and the
probabilities of the case, we have no hesitation in holding
that the plaintiffs appellants had failed to prove that Mst.
Hakimunnissa in whose name the sale-deed (Ex.D/1) stood, was
not the real purchaser but only a benamidar of her husband.
I in the result, we affirm the decision of the High Court
and dismiss this appeal with costs.
S.B.W. Appeal dismissed.
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