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PETITIONER: JAYDAYAL PODDAR (DECEASED) THROUGH HIS L.RS ANDANOTHER

       Vs.

RESPONDENT: MST.  BIBI HAZRA AND ORS.

DATE OF JUDGMENT19/10/1973

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH KRISHNAIYER, V.R.

CITATION:  1974 AIR  171            1974 SCR  (1)  70  1974 SCC  (1)   3  CITATOR INFO :  F          1977 SC 796  (26)  RF         1978 SC1362  (35)  R          1980 SC 727  (17)

ACT: Benami  Transaction-Burden  of  proving  that  a  particular transaction is benami lies on the person who asserts it-This burden  has  to be discharged by definite  proof-Essence  of benami is the intention of parties-Circumstances to be taken into consideration for determining whether a transaction  is benami  or  real-Source  of  purchase  money  if  the   most important test.

HEADNOTE: The  burden of proving that a particular sale is benami  and the  apparent purchaser is not the real owner, always  rests on the person asserting it to be so.  This burden has to  be strictly discharged by adducing legal evidence of a definite character  which  would either directly prove  the  fact  of Benami  or  establish circumstances  unerringly  raising  an inference  of  that fact.  The essence of a benanii  is  the intention  of  the  party  or  parties  concerned;  and  not unoften,  such intention is shrouded in a thick  veil  which cannot be easily pierced through.  But such difficulties  do not  relieve  the  person asserting the  transaction  to  be benami  of any part of the serious onus that rests  on  him; nor justify the acceptance of mere conjectures or  surmises, as  a substitute for proof.  Though the question, whether  a particular  sale is Benami or not, is largely one  of  fact, and  for determining this question, no absolute formulae  or acid tests, uniformally applicable in all situations, can be laid  down;  yet  in  weighing  the  probabilities  and  for gathering  the  relevant  indicia, the  Courts  are  usually guided  by these circumstances : (1) the source  from  which the  purchase money came; (2) the nature and  possession  of the  property, after the purchase; (3) motive, if  any,  for giving  the transaction a benami color; (4) the position  of the  parties  and  the  relationship  if  any,  between  the claimant  and the alleged benamidar; (5) the custody of  the title-deeds  after  the  sale and (6)  the  conduct  of  the parties  concerned  in dealing with the property  after  the sale.

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These  indicia are not exhaustive and their efficacy  varies according  to  the  facts of each  case.   Nevertheless  the source  whence the purchase money came. is by far, the  most important test for determining whether the sale standing  in the  name  of one person, is in reality for the  benefit  of another. [91H-92E]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : CiVil Appeal  No.  1759  of 1967. From the judgment and Decree dated the 31st October, 1962 of the Patna High Court in First Appeal No. 619 of 1958. V. S. Desai and R. C. Pra, for the appellant. L.   M. Singhvi, U.P. Singh and A. T. Patra, for  respondent No. 1. The Judgment of the Court was delivered by SARKARIA, J.-This appeal by certificate is directed  against the  appellate judgment and decree, dated the 31st  October, 1962, of the High Court of Judicature at Patna. The plaintiffs-appellants instituted a suit on 30-6-1956, in the Court of Subordinate Judge, Samastipur for a declaration of title and possession in respect of a pucca house in  Plot No.  216,  Ward  III of  Samastipur  Municipality.   It  was alleged that Abdul Karim (Def. 91 No. 1) had out of his own funds purchased this house in  the name  of his wife Mst.  Hakimunnissa by a  registered  sale- deed  dated  10-5-1941, from one Abdul Motilib.   After  the purchase,  Defendant  No.1,  who was in  possession  of  the house, executed two mortgage deeds, date 6-1-1948 and  28-7- 1948,  in favour of his son-in-law, Abdul  Latif  (Defendent No.  3),  husband  of Mst.  Bibi Hazra  (Defendant  No.  2). Abdulkarim (Defendant No. 1), in order to clear the mortgage dues  and for meeting other necessities, agreed to sell  the house  to  Plaintiff  No.  1  for  a  consideration  of  Rs. 20,000/-.  Pursuant to this agreement of sale, Plaintiff No. 1 paid a sum of Rs. 10,209-4-0, by installments to Defendant No. 1. Another sum of Rs. 2,990-12-0 was left with Plaintiff No. 2, for payment of the mortgage debts of Defendant No. 3, Rs.  6,800/-, the balance of the price, was paid in cash  to the vendor at the time of the registration of the  sale-deed on  25-5-1951.   Thereafter Plaintiff No. 2 got  this  house mutuated  in the Municipal records in her  favour.   Despite the  sale,  defendants  Nos, 1 to 3,  acting  in  collusion, continued to be illegal possession of the house. Defendant  No. 1, while admitting the exception of the  sale deed   dated.  25-5-1951,  pleaded  that  it   was   without consideration.  He however, asserted that the house had been purchased  by him, and that Mst.  Hakimunnissa was only  his benamidar.  The suit was registered by Bibi Hazra, Defendant No.  2, on the ground that the house had been  purchased  by her mother, Mst.  Hakimunnissa with her own money, she being a  lady of considerable means; and, on Mst.   Hakimunnissa’s death in  1944, she (Mst.  Hazra) inherited  and  came  in possession of 12 annas share therein, while the remaining  4 annas   share  devolved  on  Defendant  No.1  according   to Mohammedan  Law  by  which the  parties.  were  governed  in matters of succession.  Mst.  Hazra further pleaded that the sale  deed. dated 24-5-1951 executed by Defendant No. 1.  in favour of Plaintiff No. 2, being a fictitious and  collusive document, was ineffective qua her share in the house. The  trial  court held that "the disputed house  did  really belong  to  Abdul  Karim, and  Mst.   Hakimunnissa  was  his

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benamidar  in the sale deed (Ex.D/1) by which the house  was acquired",  and  as such Mst.  Hazra (Defendant  2)  had  no interest  in  it.  It further found that  the  sale-deed  in favour  of  Plaintiff No. 2 executed by Defendant No.  1  in respect  of  the suit house was "valid, genuine  and  for  a consideration".   In the result, it decreed the  plaintiffs’ suit. In  First  Appeal No. 619 of 1958 preferred by  Mst.   Hazra (Defendant  No. 2), the High Court reversing the  finding.of the trial court, held that the plaintiffs had failed to show that  Mst.   Hakimunnissa in whose name the  sale-deed  (Ex. D/1) dated 10-5-1941 stood, was only a benamidar and not the real   purchaser  In  consequence,  plaintiffs"   suit   was dismissed with regard to 12 annas share of Bibi Hazra and  a decree  for joint possession of 4 annas share of the  vendor (Defendant 1)  was passed in favour of plaintiffs. It  is  well  settled  that the burden  of  proving  that  a particular sale is benami and the apparent purchaser is  not the  real owner, always rests on the person asserting it  to be  so.   This  burden  has to  be  strictly  discharged  by adducing legal evidence of a definite character which 92 would either directly prove the fact of Benami or  establish circumstances   ,unerringly   and  reasonably   raising   an inference  of  that fact.  The essence ,of a benami  is  the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot  ’be ,easily  pierced  through.   But such  difficulties  do  not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor  justify the  acceptance  of  mere conjectures  or  .surmises,  as  a substitute for proof.  The reason is that a deed is a solemn document   prepared   and   executed   after    considerable deliberation   and  the  ,person  expressly  shown  as   the purchaser  or  transferee  in the  deed, starts  with  the initial  presumption in his favour that the  apparent  state ,of  affairs  is  the real state  of  affairs.   Though  the question,  whether  a particular sale is Benami or  not,  is largely  one of fact, and for determining this question,  no absolute formulae or acid tests, uniformally :applicable  in all  situations, can be laid down; yet in weighing the  pro- babilities  and  for  gathering the  relevant  indicia,  the courts  are usually guided by these circumstances : (1)  the source  from which ’the purchase money came; (2) the  nature and  possession  of the property, after  the  purchase;  (3) motive,  if any, for giving the transaction a benami  color; (4) the position of the parties and the relationship, if any between the claimant and the alleged benamidar; (5) the cus- tody  of the title-deeds after the sale and (6) the  conduct of the parties concerned in dealing with the property  after the sale. The  above  indicia are not exhaustive  and  their  efficacy varies  according to the facts of each  case.   Nevertheless no. 1, viz. the source whence The purchase money came, is by far the most important test for determining whether the sale standing  in the name of one person, is in ,reality for  the benefit of another. The question in the case is to be considered in the light of the  above indicia.  As regards circumstance (1),  the  High Court  noted Abdul Karim (Defendant No.1) who was  the  best informed  person  to  depose to the source  from  which  the purchase  money was derived did not when examined as  D.W.7, specifically testify that the money had been paid ’from  his personal  fund.  In cross-examination, he admitted  that  he had  only  two kathas of ancestral land with him; he  had  a

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tailoring. shop in which the entire capital invested was  to the tune of Rs. 1,000/-or Rs. 1,500/- only; he did not  keep any  accounts; he had six members of his family; his  rental income was Rs. 12/- per month only. The High Court was thus right  in holding that these facts admitted by  Abdul  Karim (Defendant  No.1) presented a very "gloomy picture of  Abdul Karim’s  financial condition and resources" and that he  was not  in a position to invest Rs. 4300/- for purchase of  the house  in ,question.  The High Court after a survey  of  the other evidence on the .record further came to the conclusion that  Mst.  Hakimunnissa had means of her own and her  first husband  and her son Moktadi by the first husband were  well to  do person.  Moktadi had a big, shop of  ,tobacco,  scent oil, zarda etc. Mr.  Desai, learned Counsel for the appellant  assails  this finding  of the High Court on the ground that it was  based on the oral evidence 93 of Abdul Rauf (D.W. 9) and Mohd.  Shafiullah (D.W. 10),  who according  to their own showing, had scant knowledge,  about the  affairs  of  Abdul Karim, Mst.   Hakimunnissa  or  Bibi Hazra.   It  was stressed that the trial court  had  rightly discarded the useless evidence of these witnesses. It is true that the evidence of these two witnesses suffered from infirmities; but the finding of the High Court on  this point is not based on their evidence alone.  The High  Court also took into, account the evidence of Bibi Hazara (D.W.13) who stated that she had received Rs. 1000/- or Rs. 1500/- as her  share of the cash on the death of her mother.  She  was in  a position to know about the financial condition of  her father and mother.  According to her, Abdul Karim, had given up  tailoring long ago and he was running only a petty  shop of  tobacco, tikia, hardly earning Re.  1/- or Rs.  2/-  per day.   Then there was the documentary evidence furnished  by the  sale-deed  (C-1/11)  dated  1-4-42,  executed  by  Mst. Hakimunnissa  whereby she sold a house to  Chaudhary  Kishan Chand.   It  was  recited  in this deed  that  in  order  to purchase  the  house in dispute she  (Hakimunnissa)  had  to incur   certain  debts  for  payment  of  a  part   of   toe consideration for the sale-deed (Exh.D/1). The sale in ques- tion  was effected about 11 months earlier on  May  10,1941. This recital being ante litem motam, was a valuable piece of evidence  to.  show that the consideration of the  sale  was paid  by Mst.  Hakimunnissa, the apparent purchaser  of  the house, from her own resources. Mr. Desai next contended that the recitals in the  sale-deed (Ex.D/ 1) not only neutralise the effect of the recitals  in the sale-deed (Ex.C(1)-II) but also show that the money  for purchasing the house must have been paid by Abdul Karim from his  own pocket.  Learned Counsel invited our  attention  to two recitals in Exh.D/1 which are to the effect :               1.    "I, the executant negotiated with  Abdul               Karim the tenant aforesaid regarding the  sale               of  the  said  house.   The  said  tenant   on               receiving  the.  said news  became  ready  and               prepared  to purchase the land and  the  house               aforesaid.  1,  the  executant  finalised  the               negotiation  for sale of the said house,  with               the  said tenant and fixed  the  consideration               money at Rs. 4,300/-."               2.    "Accordingly 1, the executant, have held               out  full  assurance and satisfaction  to  the               claimant and her husband  in respect  thereof.               The  husband of the claimant and the  claimant               get  this. deed ’of sale executed having  con-

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             fidence  in  and reliance  on  the,  assurance               given  by  me, the executant,  without  making               enquiry about encumbrance and defect in  title               and without seeing the index." This  contention does not appear to be tenable.  It  is  not proper  to  tear the above recitals out of the  context  and read  them  in  isolation.   They  must  be  read  with  the preceding  and succeeding contents of the document  (Ex.D/1) and also the connected recitals in the sale-deed  (C-(1)-II) dated 1st April, 1942.  In the latter deed, Hakimunnissa 94 inter-alia stated that she had previously taken in mortagage plot No. 216, per registered mortgage bond, dated 13-9-1940, from  one Sh.  Abdul Motlib, and later on she had  purchased that  plot,  including the house, for Rs. 4300/-  under  the sale-deed,  dated 10th May 1941 (Ex.D/1) from  this  Motlib. It is significant to note that Abdul Karim (Defendant No  1) had  signed this deed as an attesting witness.  In the  deed Ex.D/1, there is a clear reference to this previous mortgage executed  in  favour of Mst.  Hakimunnissa, and  the  vendor therein is repeatedly referring to Mst.  Hakimunnissa as the "claimant"  (creditor); and the payment of these past  debts is  mentioned as a reason for making the sale by the  vendor Motlib.   The learned judges of the High Court have  rightly construed these recitals as indicative of Hakimunnissa being the real purchaser of the property. The evidence with regard to possession of the disputed house was to the effect that Abdul Karim and Hakimunnissa were  in occupation  ,of  the house both before and after  the  sale. Even according to the trial court "such joint possession was not at all material in the present case for determining  the benami character or otherwise of the transaction. No  evidence  whatever was led to show that  there  was  any motive  or  reason  for giving a  benami  character  to  the transaction.   Abdul Karim who had special knowledge of  the circumstances bearing on such motive, if any, did not say  a word  on  this  point.   There  was  not  even  an   oblique suggestion  that Abdul Karim was heavily under debt  and  in order to avoid payment of such debts, he thought it fit  to acquire the house in the name of his wife. No  capital  can be made out of the  circumstance  that  the negotiations  for the purchase of the house were earned  out by  Abdul Karim and a sum of Rs. 1700/- towards the part  of the  price was paid before the Sub-Registrar by him.  It  is in  evidence that Hakimunnissa was a Pardanishin  lady,  and naturally  therefore  it was her husband who  used  to  look after  her  affairs.   Neither the actual  delivery  of  Rs. 1700/-  before  the Sub-Registrar by Abdul  Karim,  nor  the recitals  made  in Ex.D/1 could be accepted as  evidence  of Abdul Karim being the real purchaser.  He was acting only as an agent of his Pardanishin wife.  For the same reasons,  no significance can be attached to the fact that the  sale-deed remained in the custody of the husband. Learned  Counsel  next referred to the two  mortgage  deeds, Exhs.   C-1  and C(1)-1, dated 6th January,  1948  and  26th July, 1948, respectively, executed by Abdul Karim in  favour of Abdul Latif (Defendant No. 3).  Emphasis was laid on  the fact that Abdul Latif was the son-in-law of Abdul Karim  and the  husband of Bibi Hazra (Defendant No. 2).  We have  also adverted to the discussion of this evidence in the  judgment of  the  Sub-ordinate  Judge.  In agreement  with  the  High Court,  we  think,  that  this evidence also  is  not  of  a clinching  character; firstly, Abdul Latif was not only  the husband  of  Bibi Hazra-, he was also the  nephew  of  Abdul Karim; secondly, these mortgages were brought into existence

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after  the controversy had arisen.  Bibi Hazra  had  alleged that these transactions had been brought about by 95 her husband calendestinely in collusion with her father.  In this  connection,  it  is noteworthy that on  the  death  of Hakimunnissa, her husband had also acquired 4 annas share in it.   ’Mere  was, therefore, ground to  suspect  that  Abdul Karim, taking advantage of his being a sharer in the  house, brought into existence these mortgages in collusion with his nephew, to grab the entire property of Mst.  Hakimunnissa. Learned Counsel further referred to a certified copy of  the order,  dated 22-11-1950 (Ex.E.1) and urged that this  order whereby  Mst.  Hakimunnisa is claim of her being  the.  real owner  of  the attached house was dismissed, was  a  weighty piece  of  evidence admissible under s. 13 of  the  Evidence Act, and, taken in conjunction with the judgment, dated  22- 11-1950,  vide Ex.E(1) 1 and the recitals in the  deed,  was sufficient  to  show  that Mst.-  Hakimunnissa  was  only  a benamidar of her husband. It is common ground that the house in question, at one time, belonged  to Abdul Motlib and he had rented it out to  Abdul Karim,  the original owner, Motlib, had mortgaged a part  of this house to one Fakira Lal Sahu on 28-9-1947.  Sahu  filed a money suit against four persons (1) Abdul Karim; (2)  Mst. Hakimunnissa (3) Bibi Khatoon and (4) Sh.  Motlib inter-alia for the recovery of rent with interest for the period, 21-3- 1941  to  20-3-1942.  The suit was  partly  decreed  against Abdul Karim alone and was dismissed as against  Hakimunnissa by  the  Munsiff on 1-3-1943 vide  Exh.1-II.  Abdul  Karim’s appeal  against that decree was dismissed and the decree  of the  trial  court with some  modification,  was  maintained. Sahu  then  took  out execution of his  decree  against  the judgment-debtor,  Abdul Karim.  Mst.  Hakimunnissa filed  an application  under s.47 (under 0.21, r.57,) of the  Code  of Civil Procedure claiming that the attached house in plot 216 was  her exclusive property and her husband had no right  or interest  in  it.   Her application  was  dismissed  by  the Munsiff   on   22-11-1943  with  the   finding   that   Mst. Hakimunnissa  was only a benamidar of the  judgment  debtor, Abdul  Karim.  Her appeal against that order was  disallowed by the Appellate Court on 21-2-1944 vide Ex. 10. Mr. Desai very fairly conceded that this order, dated 22-11- 1943,   did not operate as res judicata because the  Munsiff was  not competent to decide the subsequent suit from  which the present appeal has arisen; but he urged that this  order had become final because no suit under Order 21, Rule 103 of the Code of Civil Procedure was filed by Mst.   Hakimunnissa to  establish her right, and, as such, this order,  even  if not conclusive, was a very efficacious and presumptive proof of  the fact that Mst.  Hakimunnissa was merely a  benamidar in respect of the house in dispute. The  contention  is attractive but does not  stand  a  close examination.    It,is  to  be  borne  in  mind   that   Mst. Hakimunnissa  died only a few months after the dismissal  of her appeal before the limitation for filling the suit  under Order 21, Rule 103 had run out.  Assuming this evidence  was admissible   under  s.13  of  the  Evidence  Act,   it   was inconclusive   and  had  been  out-weighed  by   the   other determinative    circumstances   and   the    preponderating probability   that  the  purchase  money  came   from   Mst. Hakimunnissa and not from Abdul Karim. 96 The judgment Exh.E(1)- in the rent suit filed in 1949-50  by Abdul Karim against Sh.  Mohd.  Yakub with regard to a  shop attached  to  the-  disputed house  could  not,  as  rightly

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observed   by   the  High  Court,  be  used   against   Mst. Hakimunnissa who was not a party to those proceedings. Defendant  No.  2 had also brought on the record  some  rent receipts  and Municipal receipts, A(2)-II to  A(5)-II..  Ex. A-11 stands in the name of Mst.  Hakimunnissa.  It evidences payment  of platform tax by her to the Municipality.  It  is true  that the date on it was not decipherable; but  it  was obvious that this document concerned the disputed house  and related to a period when Mst.  Hakimunnissa was alive.  This evidence  further  strengthened  the  conclusion  that  Mst. Hakiinunnissa  in her life time, and, after her  death,  her daughter  Bibi Hazra, were in enjoyment of and dealing  with the house in dispute as owners thereof. Keeping  in view the totality of the circumstances  and  the probabilities of the case, we have no hesitation in  holding that the plaintiffs appellants had failed to prove that Mst. Hakimunnissa in whose name the sale-deed (Ex.D/1) stood, was not the real purchaser but only a benamidar of her husband. I  in the result, we affirm the decision of the  High  Court and dismiss this appeal with costs. S.B.W.                         Appeal dismissed. 97