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PETITIONER: BHIM SINGH & ANR.

       Vs.

RESPONDENT: KAN SINGH(AND VICE VERSA)

DATE OF JUDGMENT21/12/1979

BENCH: VENKATARAMIAH, E.S. (J) BENCH: 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]

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    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

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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.

JUDGMENT:      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

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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

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    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

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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

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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

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    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

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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   grand  child,  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.

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    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

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    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

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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

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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

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    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

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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

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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

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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 alongwith 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. 650