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CASE NO.: Appeal (civil)  8098 of 2004

PETITIONER: Binapani Paul

RESPONDENT: Pratima Ghosh & Ors

DATE OF JUDGMENT: 27/04/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T  

S.B. SINHA, J :

       One Dr. Ashutosh Ghosh (Dr. Ghosh), a Physician practising at  Rangoon was a prosperous person.  He purchased two immovable properties  in Calcutta in the year 1927 situate at 79/3-A and 79/3-B, Lower Circular  Road, Calcutta, in his own name.  Suprovabala was his wife.  They at the  relevant time had seven daughters, including the appellant herein and a son  named, Amal.  Respondent Nos. 1 and 2 are his wife and daughter.   Suprovabala intended to purchase the premises situate at No. 24, Convent  Road, Calcutta belonging to the estate of Late Edwin St. Clair Vallentine.   She executed a power of attorney in favour of one Atul Chandra Ghosh,  brother of Dr. Ghosh, the relevant portion whereof reads as under:

       "\005Whereas I have decided to purchase premises No.24, Convent  Road, Calcutta, belongings to the Estate of Late Mr. Edwin St. Chair  Vallente at the price of Rs.26000/- (Rupees Twenty Six thousand only) but  the agreement for sale has not yet been entered into with the Administration  General of Bengal as Administrator to the Estate of Edwin St. Clair Vallente  now therefore know.  Yet that I hereby appoint Atul Chandra Ghosh of 79/3- A, Lower Circular Road, Calcutta my attorney to do and execute for me and  in my name and all acts, matters and things that may be necessary in order to  complete the said purchase and particularly the following: \005 In witness whereof I set and subscribe my hand and seal at Rangoon this 23rd  day of September 1935 in the presence of Date: 23.09.1935 No.1986 Date of Registry: 17.10.1935                                                         Sd/- Smt. Supravabla Ghosh Sd/- K.N. Ganguli Advocate High Court & Councilor Corporation of Rangoon Sd/- S.N. Ganduly, Advocate, High Court Sd/- Ashutosh Ghosh M.B. (Cal) Medical Practioner\005"

            The said power of attorney, however, was preceded and followed by  two telegrams of Dr. Ghosh addressed to his brother in relation to execution  thereof as also purchase of the said property.  The said power of attorney  was executed before a Magistrate at Rangoon.  Dr. Ghosh was an attesting  witness therein.  Interestingly, Suprovabala described herself as daughter of  Babu Rangalal Ghosh and not the wife of Dr. Ghosh therein.  A registered  indenture was executed on 16.11.1935 by the Administrator General of  Bengal to the estate of Edurn St. Clair Vallentine in favour of Suprovabala  for a sum of Rs. 26,000/-.  Indisputably, during the life time of Dr. Ghosh,

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the name of Suprovabala was mutated.  She had all along been in possession  of the said property.  Dr. Ghosh died in Rangoon in the year 1940.   Suprovabala continued to reside in the suit premises.  She died on  26.05.1942 leaving, as indicated hereinbefore, seven daughters and son  Amal.  Amal was married to Respondent No. 1 herein in 1946.   

       In the year 1958, the daughters of Suprovabala got their names  mutated in place of their mother.  Amal objected thereto, but his objection  was rejected.  Marriage of four sisters of Amal took place in the suit  premises during the period 1944 to 1970.  Although initially all the sisters  and the brother were living together in the said house, inter alia, after their  marriage the daughters of Suprovabala started living at their respective  husbands’ places.  However, three sisters allegedly continued to live in the  said house till May, 1958 but they had to leave it because of ill-treatment of  Amal and his wife.  It appears that in the year 1964, two unmarried  daughters of Suprovabala who had been living there were also compelled to  leave the house.  They filed a suit for maintenance with liberty to claim their  right to take appropriate legal action to recover their share of the said  premises at an appropriate time, which was allowed by the High Court.   Three out of the seven daughters of Dr. Ghosh filed a suit for partition  against Amal on 19.09.1973 claiming 3/7th share of the property of their  mother, a final decree for partition as also a decree for accounts.

       Amal in his written statement filed in the suit inter alia contended that  Suprovabala was benamdar of Dr. Ghosh.  Suprovabala, therefore, had only  a limited interest under the Hindu Women’s Right to Property Act, 1937 and  on her death Amal became the absolute owner.  Amal died during pendency  of the suit whereupon Respondent Nos. 1 and 2 were substituted in his place.

       Before the learned Trial Judge, plaintiff - Binapani examined herself  as PW-3.  A common relation of the parties being Chandi Charan Ghosh  examined himself as PW-4.  Respondent No. 1 did not examine herself.   Putul Ghosh, daughter of Amal who was born only in 1954 examined herself  as DW-1.   

       The learned Trial Judge decreed the suit holding that Dr. Ghosh  intended to purchase the said property for the benefit of his wife.  The Trial  Court in its judgment opined that if Dr. Ghosh wanted to purchase the  property for himself, there was no necessity for execution of power of  attorney  by Suprovabala in favour of Atul Chandra Ghosh.  It was noticed  that the power of attorney had been attested by Dr. Ghosh which is a pointer  to show that the property was purchased by him for the benefit of his wife.   Circumstances surrounding the same, it was held, also led to the said  concusion.  It was, therefore, not held to be a case of benami transaction.  A  first appeal was preferred thereagainst before the High Court by Respondent  Nos. 1 and 2.  A Division Bench of the High Court although completed  hearing of the appeal on 25.01.2002, delivered judgment after 19 months,  i.e., on 29.07.2003.   

       The High Court opined that:

(i)     it was for the plaintiff to prove that Dr. Ghosh purchased the  property for the benefit of his wife; (ii)    purchase by Suprovabala through an attorney does not negative the  nature of transaction being a benami one; (iii)   mutation of names of all the heirs of Suprovabala was of no  consequence. (iv)    Dr. Ghosh could not have gifted the property in favour of his wife  being impermissible under the Dayabhaga School of Hindu Law.

       Mr. S.B. Sanyal, learned senior counsel appearing on behalf of the  appellant, submitted that the High Court committed a manifest error in  passing the impugned judgment insofar:

(i)     the onus of proof had wrongly been placed upon the plaintiff;

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(ii)    the defendant had not been able to show any motive for the benami  purchase. (iii)   the presumption that an apparent state of affairs is the real state of  affairs has not been rebutted by adduction of any cogent evidence. (iv)    contribution of purchase money is only one of the factors for  proving benami transaction but intention also plays a significant  role in relation thereto which was required to be determined having  regard to the surrounding circumstances, the relationship of the  parties, the motive governing their action and the subsequent  conduct of the parties. (v)     Putul Ghosh (DW-1) cannot be said to have any knowledge about  the transaction and there was no reason as to why her mother  Pratima Ghosh did not examine herself as a witness.

       Mr. Devadatt Kamat, learned counsel appearing on behalf of  Respondent Nos. 4 to 7 supplemented the argument of Mr. Sanyal stating  that the High Court cursorily dealt with the question of intention in relation  to the transaction in question.  Our attention has also been drawn to Section  5 of the Power of Attorney Act, 1882.

       Mr. Bhaskar P. Gupta, learned senior counsel appearing on behalf of  Respondent Nos. 1 and 2, on the other hand, would submit that:

(i)     the suit property having been acquired in the year 1935, as  purchases of property in the benami name of wives being prevalent  at the relevant time, the case was required to be considered from  that angle.  (ii)    a transaction in benami may be entered into for no apparent reason. (iii)    doctrine of advancement has no application in India. (iv)     Benami Transactions (Prohibition) Act, 1988 has no retrospective  effect.  The source of money being an important factor for  determining benami nature of transaction, the onus lay on the  plaintiffs.   (v)     the parties being governed by the Dayabhaga School of Hindu  Law, Dr. Ghosh could not have made a gift of immovable property  in favour of his wife.

       Before embarking upon the rival contentions of the parties, we may  also notice that Dr. Ghosh had a life insurance.  Suprovabala was his  nominee and after his death, the entire amount of insurance was received by  her.

       A question as to whether a transaction evidences a benami nature  thereof is always difficult to answer.  It is a case where despite some  evidence brought on records by the plaintiffs that Suprovabala paid the  consideration amount or at least a part of it, we may proceed to determine  the issues between the parties on the premise that the amount of  consideration was provided by Dr. Ghosh.  A person may for various  reasons intend to purchase a property in the name of his wife.  It may be for  one reason or the other.  There may or may not be a practice in respect  thereto.  A purported prevalent practice in this behalf, as was observed by  the Judicial Committee, in Sura Lakshmiah Chetty and Others v.  Kothandarama Pillai [AIR 1925 PC 121] and Gopeekrist Gosain v.  Gungapersaud Gosain [(1854) 6 Moore’s Indian Appeals 53], is in our  opinion not of much importance.  A court of law is required to determine  such a question. Without anything more, it cannot determine the same on the  basis of such an alleged practice only.

       Dr. Ghosh was a prosperous person.  He must be a medical  practitioner of repute.  He had purchased two very valuable properties in  Calcutta in quick succession being situate at 79/3-A and 79/3-B, Lower  Circular Road, Calcutta, which is a very prime area in the town of Calcutta.   The property in question was purchased in 1935.  Admittedly, renovations  were made in the year 1938.  He died in the year 1940 at Rangoon.  At that  point of time, none of his children was married.  He had seven daughters.  In

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1935, Hindu Women’s Right to Property Act, 1937 did not come into force.   He, therefore, might have been of the opinion that in case of his early death,  which appears to have been his premonition, something should be kept apart  for his wife and daughters.   When a person develops such an intention, it  would be opposed to the essential characteristics of a benami transaction.   He furthermore was not a debtor.  He was not required to avoid any liability.   He had no apparent motive for entering into a benami transaction.  The  plaintiffs’ case that he had done so for the benefit of his wife, therefore,  must be considered from that angle.   

       Amal appears to be the eldest amongst the children.  When a son is  the eldest amongst the children, expectation of a father will always be that  on his death, he would look after his mother and sisters.  Son would perform  his duties not only by providing maintenance to the daughters, to which they  were otherwise entitled to, but also they were to be married.  Dr Ghosh’s  eagerness to purchase the property is evidenced by two telegrams dated 20th  and 24th September, 1935.

       Mr. Gupta’s submission that the said telegrams are relevant to show  Dr. Ghosh’s personal involvement in the transaction may not be of much  significance.  They were at Rangoon.  Negotiations for purchase were to be  held with the Administrator General of Bengal.  Earnest money was to be  deposited.  The deed was to be drawn up.  In those days, a Hindu wife was  supposed to maintain some ’purdah’.  We do not know whether she knew  English or not.  She, therefore, was not expected to draft a telegram and go  to post office for the purpose of transmission thereof.  But, the power of  attorney executed by her plays an important role.  The power of attorney  must have also been drafted at the behest of Dr. Ghosh.  Ordinarily,  Suprovabala would be described as the wife of Dr. Ghosh.  She was not.   She was described as the daughter of Babu Rangalal Ghosh.  Dr. Ghosh  himself was an attesting witness.  He being in the position of husband and if  we accept the case of the defendants \026 respondents that he intended to have a  benami transaction, ordinarily, he would not get his wife described as  daughter of somebody instead of his own wife.  Such unusual step on the  part of Dr. Ghosh leads to one conclusion that he intended to purchase the  property for the benefit of his wife.  The recitals made in the power of  attorney are also of much significance.  It was categorically stated that it was  Suprovabala who had decided to purchase the said property and it was she  who was appointing her husband’s brother as her attorney.

       In Tara Sundari Sen v. Pasupati Kumar Banerjee & Ors. [1974 CLJ  370], it was observed:

"\005The only purpose of Nagendra Nath Ganguly  having been a signatory to the said document must  have been to represent to the world at large that the  property was being acquired by Sm. Shantabala as  her absolute property and that her husband had no  right, title or interest in the same\005"

       It was further observed therein:

"The significance and value of these indisputable  facts have to be carefully assessed.  It is common  case that the ultimate source of the money was the  income and savings of Nagendra Nath Ganguly.   The plaintiff contends that Nagendra Nath made a  gift of the money of his wife Shantabala to enable  her to acquire the properties.  If that be so, the  properties were Shantabala’s Ajoutuka Stridhana.   That Nagendra made gift out of his funds does not  in any way prejudice the plaintiff’s case.  Once the  gift was made, if it was made at all, the money  belonged absolutely to Shantabala and the

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properties she purchased were hers and hers alone.   That Nagendra engaged a contractor or a  supervisor for construction of a structure on the  land purchased by Shantabala or that he made  payments to the contractor or the supervisor will  not by itself be any evidence of his ownership.   The husband of a Hindu lady living in a common  matrimonial home usually manages and maintains  her properties.  The Court can and ought to take  judicial notice of the fact that ordinarily in a Hindu  household the husband deals with strangers and  trademen.  Therefore, the fact that payments were  made by Nagendra Nath Ganguly is not  inconsistent with the case that the premises  belonged to Shantabala absolutely."     

       In a given situation, execution of a power of attorney may not be of  importance but then the backdrop of events and the manner in which the  power of attorney was drafted as well as the very fact that Dr. Ghosh himself  became an attesting witness thereto, the same plays very significant role.  If  in the light of the so-called practice as then existed, i.e., to purchase property  in the name of his wife, Dr. Ghosh intended to enter into a benami  transaction, his intention, therefor, would have been clear and unambiguous  or in any event, the same would have been explicit from the surrounding  circumstances.  They were not.  Moreover, immediately after the purchase,  the name of Suprovabala was mutated.  She started paying tax.  There is no  evidence to show that Dr. Ghosh took an active role except providing for the  amount in regard to the construction of the house.  Evidence on records  clearly show that Suprovabala had also been looking after the constructions  of the house along with Chandi Charan Ghosh (PW-4).   

       The fact, which we have noticed hereinbefore, viz., that an insurance  was also made in her name is also a pointer to show that Dr. Ghosh intended  to provide sufficient money at the hands of his wife. [See Ext. A (13)]   Ordinarily, a son would be made a nominee.  We must place on record the  social condition as thence prevailing, viz., a son under the law was bound to  maintain his family and, therefore, the entire property at the disposal of the  father would be given to the son.    

       We do not have any direct evidence of conclusive nature in this regard  before us.  We must, therefore, deal with the matter on reasonable  probabilities and legal inferences.

       Dr. Ghosh indisputably was a person having a superior knowledge  and understanding.  He was holding a responsible position in the society.  He  was in a noble profession.  When he made attestation of the deed of the  power of attorney keeping in view the fact that he was the husband there  cannot be any doubt that he fully understood in regard to the nature of the  transaction as also the contents and merits thereof.

       We may at this juncture also notice a Constitution Bench decision of  this Court in Kanakarathanammal v. V.S. Loganatha Mudaliar [AIR 1965  SC 271 : (1964) 6 SCR 1] wherein this Court had an occasion to deal with  the question of providing money to the wife, the purpose for purchase of the  property vis-‘-vis a transaction which was benami in nature.  For the  purpose of inferring acknowledgement and/ or admission by husband that  the property was purchased by his wife, this Court, upon taking into  consideration the provisions of Mysore Hindu Law Women’s Rights Act (10  of 1933), opined:

"12. We have carefully considered the arguments  thus presented to us by the respective parties and  we are satisfied that it would be straining the  language of Section 10(2)(b) to hold that the

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property purchased in the name of the wife with  the money gifted to her by her husband should be  taken to amount to a property gifted under Section  10(2)(b). The argument about the substance of the  transaction is of no assistance in the present case,  because the requirement of Section 10(2)(b) is that  the property which is the subject-matter of  devolution must itself be a gift from the husband to  the wife. Can we say that the property purchased  under the sale deed was such a gift from the  husband to his wife? The answer to this question  must clearly be in the negative. With what funds  the property is purchased by the female is  irrelevant for the purpose of Section 10(2)(d); so  too the source the title to the fund with which the  said property was purchased. All that is relevant to  enquire is: has the property been purchased by the  female, or has it been gifted to her by her husband?  Now, it seems clear that in deciding under which  class of properties specified by clauses (b) &(d) of  Section 10(2) the present property falls, it would  not be possible to entertain the argument that we  must treat the gift of the money and the purchase  of the property as one transaction and hold on that  basis that the property itself has been gifted by the  husband to his wife. The obvious question to ask in  this connection is, has the property been gifted by  the husband to his wife, and quite clearly a gift of  immovable property worth more than Rs 100 can  be made only by registered deed. The enquiry as to  whether the property was purchased with the  money given by the husband to the wife would in  that sense be foreign to Section 10 (2)(d) gift of  money which would fall under Section 10(2)(b) if  converted into another kind of property would not  help to take the property under the same clause,  because the converted property assumes a different  character and falls under Section 10(2)(d). Take a  case where the husband gifts a house to his wife,  and later, the wife sells the house and purchases  land with the proceeds realised from the said sale.  It is, we think, difficult to accede to the argument  that the land purchased with the sale-proceeds of  the house should, like the house itself, be treated as  a gift from the husband to the wife; but that is  exactly what the appellants argument; will  inevitably mean. The gift that is contemplated by  Section 10(2)(b) must be a gift of the very property  in specie made by the husband or other relations  therein mentioned. Therefore, we are satisfied that  the trial court was right in coming to the  conclusion that even if the property belonged to  the appellants mother, her failure to implead her  brothers who would inherit the property along with  her makes the suit incompetent. It is true that this  question had not been considered by the High  Court, but since it is a pure point of law depending  upon the construction of Section 10 of the Act, we  do not think it necessary to remand the case for  that purpose to the High Court\005"

       Mr. Gupta made an endeavour to distinguish the said decision on fact  of the matter submitting that therein the father wrote a large number of  letters which included a discussion of the wife’s will where he had  acknowledged the wife’s title to the property, but we have to consider the

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crux of the matter to understand the underlying principle laid down therein.

       Acceptance of acknowledgement of title comes in various forms.  It  may be before the transaction is entered into and may be subsequent thereto.   The court has to gather the intention of the concerned parties on the basis of  the circumstances surrounding the transaction and not from the conduct of  the parties only at a subsequent stage.  It may be true that ipso jure  acknowledgement of title would mean the same should be only after the title  is acquired, but, whether addressing ourselves to a question of this nature,  viz., as to whether Dr. Ghosh intended to enter into a benami transaction in  the name of his wife, either surrounding circumstances leading to the  inference that he had no such intention must be gathered from the totality of  the circumstances both preceding and subsequent to the transaction in  question or if the intention of the person providing for the fund for  purchasing the property has a major role to play, how it was given also  assumes some significance.  Apart from the fact that Dr. Ghosh himself was  keen to see that the property is purchased for the benefit of his wife, we must  notice that it was also mutated in her name.  When a mutation takes place  with the knowledge of the husband, although not conclusive, would provide  for a link in the chain.   

       To decipher the intention of the parties, this Court must go back to the  societal situation as was prevailing in 1935.  Dr. Ghosh as a man of ordinary  prudence wanted to make provision to protect and insure the welfare of his  seven daughters and wife.  In a case of this nature, the answer to such a  question has to be in the affirmative.  Question of intention is always  relatable and peculiar to the facts of each case.  [See Nawab Mirza  Mohammad Sadiq Ali Khan and Others v. Nawab Fakr Jahan Begam and  Another AIR 1932 PC 13]

       In Chittaluri Sitamma and another v. Saphar Sitapatirao and others  [AIR 1938 Madras 8], it was held:

"\005The mere suspicion that the purchases might  not have wholly been made with the lady’s money  will certainly not suffice to establish that the  purchases were benami, nor even the suspicion that  moneys belonging to Jagannadha Rao whether in a  smaller measure or a larger measure, must have  also contributed to these purchases.  Even in cases  where there is positive evidence that money had  been contributed by the husband and not by the  wife, that circumstance is not conclusive in favour  of the benami character of the transaction though it  is an important character\005"

       The learned counsel for both the parties have relied on a decision of  this Court in Thakur Bhim Singh (Dead) By LRs and Another v. Thakur Kan  Singh [(1980) 3 SCC 72] wherein it has been held that the true character of a  transaction is governed by the intention of the person who contributed the  purchase money and the question as to what his intention was, has to  decided by: (a)     Surrounding circumstances (b)     Relationship of the parties (c)     Motives governing their action in bringing about the transaction and  (d)     Their subsequent conduct.

       All the four factors stated may have to be considered cumulatively.   The relationship between the parties was husband and wife.  Primary motive  of the transaction was security for the wife and seven minor daughters as  they were not protected by the law as then prevailing.  The legal position  obtaining at the relevant time may be considered to be a relevant factor for  proving peculiar circumstances existing and the conduct of Dr. Ghosh which  is demonstrated by his having signed the registered power of attorney.  

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       This aspect of the matter has been considered by this Court in  Jaydayal Poddar (Deceased) Through L.Rs. and Another v. Mst. Bibi Hazira  and Others [(1974) 1 SCC 3], wherein this Court held:

"\005The 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 test,  uniformly 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 colour; (4) the position of the  parties and the relationship, it 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."

       Source of money had never been the sole consideration.  It is merely  one of the relevant considerations but not determinative in character.  [See  Thulasi Ammal v. Official Receiver, Coimbator AIR 1934 Madras 671]

       In Protimarani Debi and Anr. v. Patitpaban Mukherjee and Ors. [60  CWN 886], the Calcutta High Court observed:

"The correct proposition was stated in Official  Assignee of Madras vs. Natesha Gramani (1)  (A.I.R. 1927 Madras 194).  There is no  presumption that when a property stands in the  name of a female the Court will immediately jump  to the conclusion without any proof that it really  belongs to the husband of the female.  Before such  a presumption is raised or attracted it is necessary  for the person who wants to make out that the  property is not the property of the female, in whose  name the document stands, to establish the fact  that the consideration money for the purpose  had  come from the husband."

       It will be useful at this juncture to notice a judgment of the Calcutta  High Court in K.K. Das, Receiver and others v. Sm. Amina Khatun Bibi and  another [AIR 1940 Cal 356], wherein it was held that where a husband  provides for the money for construction of a building on a land which is in  the name of his wife, he did not intend to reserve any right in the structures  raised therein.  

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       In 1935, the appellant herein was a minor.  Whether she was aged 9  years or 14 years, thus, is immaterial.  She, however, had the occasion to  know something about the property from her mother or father.  Dr. Ghosh  expired only in 1940 and Suprovabala died in 1942.  If the children had no  knowledge about the title of her mother, there would not have been any  occasion for them to make any application for mutation of their names.   Amal was marred in 1946.  Allegedly, he and his wife started mal-treating  the sisters.  Three of them, as noticed hereinbefore, were yet to be married.   The dispute between the parties rose to such a pass that three of the sisters  had to leave the house.  They had to seek for a shelter somewhere else.  So  long as the relationship between the parties was good, evidently, no problem  arose.  The mutation in the name of the daughters, therefore, assumes  considerable significance.  It is not a coincidence that three daughters had to  leave the house and an application for mutation was filed in the year 1958.   Amal objected thereto and it would not be a matter beyond anybody’s  comprehension that he had fought out the same bitterly.  He must have done  it and despite the same mutation was done in the name of all.  Only a  suggestion was given to PW-4 that the name of all the co-sharers was  mutated only because husband of one of the sisters was in Calcutta  Municipal Corporation.  If that be so, it was expected of Amal to prefer an  appeal thereagainst.  It was expected that he would file a suit for declaration  to assert his own title as he did in the suit.

       Mr. Gupta has relied upon a decision of the Patna High Court in  Shahdeo Karan Singh and others v. Usman Ali Khan [AIR 1939 Patna 462]  wherein it was held that obtaining mutation of names do not establish a gift.   This may be so.  But, however, in this case, we are concerned with the  conduct of the parties.

       The fact that Amal allowed the order of mutation to attain finality,  thus, would also be a pointer to suggest that despite such bitter relationship  between the parties he accepted the same; more so, when mutation of one’s  name in the Municipal Corporation confers upon him a variety of rights and  obligations.  He had rights and obligations in relation thereto because,  according to him, in relation to the said property vis-‘-vis Calcutta  Municipal Corporation, he was residing with his wife, he allegedly inducted  tenants and had been realizing rent from them.

       Tenants could have denied his title.  He would not have been given  permission to make any additions or alterations.  He, in absence of an order  of mutation, might not be given other amenities, if he had filed such an  application in his own name.  He, therefore, knew that mutation of names of  all the parties in the Calcutta Municipal Corporation may bring forth to him  many obstacles in future in the enjoyment of the property.  At least he could  have taken such a step even after the suit filed by two of the sisters for  maintenance.  The suit was decreed.  Even in the said suit, the right to claim  partition in the properties had been kept reserved.

       We have seen hereinbefore that the appellant examined herself as a  witness.  The wife of Amal even did not do so.  An adverse inference should  be drawn against her.

        In Tulsi and Others v. Chandrika Prasad and Others [(2006) 8 SCC  322], this Court observed:

"Before the courts below, the Appellant No. 1 did  not examine herself.  The Respondents  categorically averred in the plaint that the  mortgage amount was tendered to her as also to  her husband.  Having regard to the peculiar facts  and circumstances of this case, we are of the  opinion that she should have examined herself to  deny such tender.

       In Sardar Gurbakhsh Singh v. Gurdial Singh

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and Another [AIR 1927 PC 230], the Privy  Council emphasized the need of examination of  the parties as witnesses.  [See also Martand  Pandharinath v. Radhabai, AIR 1931 Bom 97 and  Sri Sudhir Ranjan Paul v. Sri Chhatter Singh Baid  & Anr., Cal LT 1999(3) HC 261]"

       Daughter of Respondent No. 1 (Respondent No. 2) who was born in  1954 examined herself as DW-1.  She evidently had no knowledge about the  transaction.  She could not have any.  At least it was expected that  Respondent No. 1 might have gathered some knowledge keeping in view the  conduct of her husband vis-‘-vis the sisters in relation to the property.  Even  otherwise, she was a party to the suit.  No evidence, worh the name,  therefore, had been adduced on behalf of Respondent No. 1.

       Interestingly, Amal pleaded ouster.  If ouster is to be pleaded, the title  has to be acknowledged.  Once such a plea is taken, irrespective of the fact  that as to whether any other plea is raised or not, conduct of the parties  would be material.  If, therefore, plea of ouster is not established, a’ fortiori  the title of other co-sharers must be held to have been accepted.   

       In T. Anjanappa and Others v. Somalingappa and Another [(2006) 7  SCC 570], it was held:

"12. The concept of adverse possession  contemplates a hostile possession i.e. a possession  which is expressly or impliedly in denial of the  title of the true owner. Possession to be adverse  must be possession by a person who does not  acknowledge the other’s rights but denies them.  The principle of law is firmly established that a  person who bases his title on adverse possession  must show by clear and unequivocal evidence that  his possession was hostile to the real owner and  amounted to denial of his title to the property  claimed. For deciding whether the alleged acts of a  person constituted adverse possession, the animus  of the person doing those acts is the most crucial  factor. Adverse possession is commenced in wrong  and is aimed against right. A person is said to hold  the property adversely to the real owner when that  person in denial of the owner’s right excluded him  from the enjoyment of his property."

       It was further held:

"21. The High Court has erred in holding that even  if the defendants claim adverse possession, they do  not have to prove who is the true owner and even  if they had believed that the Government was the  true owner and not the plaintiffs, the same was  inconsequential. Obviously, the requirements of  proving adverse possession have not been  established. If the defendants are not sure who is  the true owner the question of their being in hostile  possession and the question of denying title of the  true owner do not arise\005"

       [See also See also Govindammal v. R. Perumal Chettiar & Ors.,  (2006) 11 SCC 600 and P.T. Munichikkanna Reddy & Ors. v. Revamma and  Ors., Civil Appeal No. 7062 of 2000 decided on 24th April, 2007]

       Amal, therefore, could not have turned round and challenged the title

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of the appellant and other respondents.  [See Syed Abdul Khader v. Rami  Reddy and Others (1979) 2 SCC 601]

       PW-3 in her evidence made three significant statements:

(i)     The property was purchased for the benefit of the mother without  keeping any financial interest; (ii)    During the life time of her father, her mother used to exercise right,  title and interest of the property and she continued to do so even  after her father’s death. (iii)   Her mother used to say that the property belonged to her.

       PW-4 Chandi Charan Ghosh is a common relation.  According to him,  Dr. Ghosh acknowledged the title of his wife before him.  We may not rely  on his evidence in its entirety but we intend to emphasise that at least some  evidence has been adduced on behalf of the appellant whereas no evidence,  worth the name, has been adduced on behalf of the defendants \026  respondents.  DW-1, as noticed hereinbefore, having born in 1954, could not  have any personal knowledge either in regard to the transaction or in regard  to the management of the property by Suprovabala whatsoever.  She was  even only four years old when the name of all co-sharers was mutated in the  records of the Calcutta Municipal Corporation.  She, however, admitted that  there are two other houses standing in the name of Dr. Ghosh.  She even  could not say anything about the power of attorney.  She accepted that the  suit house was in the name of Suprovabala till 1958.  She accepted that her  father objected to the mutation but the same was granted and no further step  had been taken.  Although she claimed that she had been looking after the  affairs, she could not give any details about the purported litigations as  against the tenants initiated by her father.   

       Reliance placed by Mr. Gupta on Hindu Women’s Right to Property  Act, 1937 is misplaced as the property was purchased in the year 1935.  The  said Act had no application at that point of time.  There, however, cannot be  any doubt whatsoever in regard to the legal position that in respect of other  properties of Dr. Ghosh, she had a limited interest.

       Reliance by the High Court upon Mulla’s Hindu Law for the  proposition that husband could not give immovable property as stridhan to  his wife, in our opinion, is wholly misplaced.  Mulla has relied upon a  decision of the Madras High Court in Venkata Rama Rau v. Venkata Suriya  Rau and Another [ILR (1877) Madras 281 at 286].  What Mulla in fact says  is that any gift or immovable property under Dayabhaga law would not  become wife’s stridhan.  It is, however, not in dispute that the amount  necessary for purchasing an immovable property can be a subject matter of  gift by a person in favour of his wife. [See K.K. Das (supra)]

       We are also really not concerned with such a situation as the situation  had undergone a sea change after coming into force of the Transfer of  Property Act.  The Transfer of Property Act prescribes that any clog on  transfer of property right to transfer would be void.  Dayabhaga does not  prohibit gift of immovable property in favour of his wife by her husband.  It  merely says that Dayabhaga did not recognize it to be her stridhan.  It was  only for the purpose of inheritance and succession.  The same has nothing to  do with the Benami Transaction of the Property and to determine the nature  of transaction.   

       Burden of proof as regards the benami nature of transaction was also  on the respondent.   This aspect of the matter has been considered by this  Court in Valliammal (D) By LRS. v. Subramaniam and Others [(2004) 7  SCC 233] wherein a Division Bench of this Court held:

"13. This Court in a number of judgments has held

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that it is well established that burden of proving  that a particular sale is benami lies on the person  who alleges the transaction to be a benami. The  essence of a benami transaction is the intention of  the party or parties concerned and often, 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.  Refer to Jaydayal Poddar v. Bibi Hazra,  Krishnanand Agnihotri v. State of M.P., Thakur  Bhim Singh v. Thakur Kan Singh, Pratap Singh v.  Sarojini Devi and Heirs of Vrajlal J. Ganatra v.  Heirs of Parshottam S. Shah. It has been held in  the judgments referred to above that the question  whether a particular sale is a benami or not, is  largely one of fact, and for determining the  question no absolute formulas or acid test,  uniformly applicable in all situations can be laid.  After saying so, this Court spelt out the following  six circumstances which can be taken as a guide to  determine the nature of the transaction: (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 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. (Jaydayal Poddar  v. Bibi Hazra1, SCC p. 7, para 6) 14. The above indicia are not exhaustive and their  efficacy varies according to the facts of each case.  Nevertheless, the source from where the purchase  money came and the motive why the property was  purchased benami are by far the most important  tests for determining whether the sale standing in  the name of one person, is in reality for the benefit  of another. We would examine the present  transaction on the touchstone of the above two  indicia.

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18. It is well settled that intention of the parties is  the essence of the benami transaction and the  money must have been provided by the party  invoking the doctrine of benami. The evidence  shows clearly that the original plaintiff did not  have any justification for purchasing the property  in the name of Ramayee Ammal. The reason given  by him is not at all acceptable. The source of  money is not at all traceable to the plaintiff. No  person named in the plaint or anyone else was  examined as a witness. The failure of the plaintiff  to examine the relevant witnesses completely  demolishes his case."

       For the reasons aforementioned, the impugned judgment cannot be

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sustained which is set aside accordingly.  The judgment of the Trial Court is  restored.  The appeal is allowed.  In the peculiar facts and circumstances of  this case, however, there shall be no order as to costs.