07 November 1996
Supreme Court
Download

SMT. TULSA BAI Vs STARE OF MADHYA PRADESH & ORS.

Bench: K. RAMASWAMY,G.B. PATTANAIK
Case number: Appeal (civil) 3100 of 1980


1

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2  

PETITIONER: SMT. TULSA BAI

       Vs.

RESPONDENT: STARE OF MADHYA PRADESH & ORS.

DATE OF JUDGMENT:       07/11/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                THE 7TH DAY OF NOVEMBER, 1996 Present:               Hon’ble Mr. Justice K. Ramaswamy               Hon’ble Mr. Justice G.B. Pattanaik Fazlin Anam, Adv. For S.K.M. Mehta, Adv. for the appellant U.N. Bhachawat,  Sr. Adv.  (A.K. Sanghi)  Adv.  (NP),  Niraj Sharma, S.K. Agnihotri, Advs. With him for the Respondents.                          O R D E R      The following Order of the Court was delivered:                          O R D E R      This appeal  by special  leave arises from the judgment of the  Division Bench  of the High Court of Madhya Pradesh, Jabalpur bench,  made on  April 19,  1980 in F.A. No. 80/75. The appellant  had filed  the suit  for declaration  of  her right to  and little  in the suit property suited in Shankar Ward, Phatapara  Municipality  in  Madhya  Pradesh  and  for incidental  injunction   restraining  the   defendants  from selling of  the same.  Her plea  was hat the had purchased a plot on  September 23, 1971 by herself out of her own money. After obtaining the permission from the municipality she had constructed the  house by  herself after  taking loans  from various sources and thereby she is the absolute owner of the built-in house.  therefore, the  said house is not liable to attachment and sale to recover Rs. 63.063.25 towards arrears of sales-tax  from the  appellant’s husband impleaded as 3rd defendant in  the suit. The trial Court decreed the suit No. 7-A of  1972. But on appeal is was reversed and the suit was dismissed. Thus this appeal by special leave.      The learned  counsel for  the appellant, placing strong reliance on  the judgment  of this  Court in  Gapadibai  vs. State of  M.P. [(1980)  2 SCC  327], contended that when the appellant had  pleaded and  proved that  she is the owner of the property  and had  constructed the  house from  her  own funds and  the trial  Court having  accepted the  same.  Who High Court was not right in reversing the decree. The burden is on  the respondent-State  to prove that this is a case of benami transaction  and that  the third defendant-husband of the appellant  is the  real owner.  The State  had miserably failed to  do the same. Consequently, the decree of the High Court is  not correct  in law.  We  find  no  force  in  the

2

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2  

contention.      It is  true that  when the  plea of  benami transaction has been  raised and on passing different tests laid down in that case, namely, having been in possession of the house in her own  right, purchasing  the  property  by  a  registered conveyance in her name, the title deed remained to be in her custody, the  payment property-tax  after the  purchase were considered to  be indicia  to conclude that she was the real owner and  it was  not a  benami transaction standing in the name of the plaintiff for and on behalf of her husband. But, in this  case, it  is difficult  to give  acceptance to  the contention of  the learned  counsel for  the appellant.  The High Court  has pointed  out in  paragraphs 5  an 6  of  the judgment the  entire evidence.  The finding is based on oral testimony of the witnesses. PW-1, Jagdish Prasad examined on behalf to  the plaintiff, had admitted that he purchased the plot in  1969 for  Rs. 4425/-  and in  1971, he is stated to have sold  the property for Rs. 4,000/-. It is incredible to believe that  after two  years he  had sold the property for less than the purchase price of 1969. One Radheshyam Purohit was examined  to show  that the respondent had sold her gold ornaments to  him after  10-15 days of Holi of the year 1971 for a  sum of  Rs. 4220/-.  The said  Radheshyam is no other than the  clerk of Jagdish Prasad, P.W.1. No credence can be given  to  his  evidence.  Evidence  of  one  Himmatbhai,  a relation  of  the  appellant,  of  her  leading  money,  was disbelieved. P.W.3,  a contractor  who constructed the house during  October   1970,  had   stated  that   the  cost   of construction  was   Rs.  27,000/-   whereas  the   Municipal Overseer, P.W.4  examined on  behalf of  the  appellant  had proved that  the cost  of the construction was Rs. 45,000/-. One Pitamberlal  Agrawal, P.W.5,  relative of the appellant, was claimed  to have  lent Rs.  10,000/- for construction of the house  in October 1972. It is not the case that this Rs. 10,000/- was  utilized in  the construction of the house. In the absence  of any  material connecting  the  alleged  oral leading  of   Rs.  10,000/-   and  repayment   thereof,  the contention was  not accepted  by  the  High  Court.  Another witness  is  the  sister  of  the  appellant’s  mother,  one Bhotibai. she  claimed to  be  gifted  Rs.  5,000/-  to  the appellant for  construction of  the house. The appellant had admitted as  a witness  that at the time of her marriage she was given  Rs. 5,000/- cash ad ornaments worth Rs. 10,000/-. She also  admitted that after the house was constructed, she had in  her Possession  Rs. 5,000/- in her possession before construction and  she retained Rs. 5,000/- to Rs. 6,000/- in cash after  construction. In  the absence  of  any  specific evidence as  to source from which the amount of Rs. 45,000/- was secured  by her, the High Court had concluded that there is not  proof that the house was constructed by her with her own funds and the husband being a businessman, obviously had constructed the  house in  the name  of his wife for herself and family.  Accordingly, it  was concluded  that it  was  a benami transaction  liable to be proceeded with for recovery of the  arrears of  sales-tax from  the third defendant, the husband of the appellant. This being a finding of fact based on appreciation  of evidence,  We do not find any illegality in the  conclusion reached  by the High Court nor do we find any  error  of  law  in  the  judgment  of  the  High  Court warranting interference.      The appeal is accordingly dismissed. No coast.