Gangadevi Sharma vs Sbivnarayan Jagannath and Another

H.R. Krishnan, J.

This is an appeal by the Plaintiff from the judgment and decree of the Additional District Judge, Jaora, dismissing her suit. The Plaintiff, who is Gangadevi describing hereself as the widow of one Madansingh (and who has to be distinguished from Gangabai Defendant No. 2 the transferee from her husband Defendant No. 1 of the house that is the subject-matter of the suit), contends that this house, purchased on 12-7-1950 in the name of Defendant No. 1 Shivnarayan and extensively repaired and enlarged in 1956-57, is really her property the nominal owner being only a benamidar while she, besides retaining the title deed, had also been in possession all the time. Accordingly, the prayer was for declaration firstly of her title and further that it was not affected by the sale deed executed on 13-6-1960 by benamidar Shivnarayan Defendant No. 1 in favour of his own wife Defendant No. 2 for the ostensible consideration of Rs. 8,000.

The real difficulty in this case, for somewhat difficult it certainly is, does not lie in any uncertainty about the principles applicable when the Plaintiff alleges that she is the real owner and that the ostensible owner is only a benamidar. The established law is that such a claimant has effectively to neutralise the strong presumption attached to formal deeds of title and other formal acts supporting the title of the ostensible owner. He has by definite evidence to show that when the ostensible ownership started either by the purchase of the property or by its creation, the cost was incurred by him and not by the ostensible owner; in addition, that he did not throw away his money as a gift to the Defendant but was even at that time of the clear intention that he would be the real owner while the person in whose name the property stood would only be a benamidar. Again, there should be an unmistakable indication from the very beginning that the claimant exercised control and possession of the property and had not effaced himself completely in that regard. One of the ways of exercising such control would be the retention of the title deeds or other documents like rent or tax receipts or those arising out of similar dealings with public authorities. It is also usual to expect the claimant to show why at all it was considered necessary to have a benami arrangement. This suit has been studied by the lower Court in the light of these principles and found wanting and accordingly dismissed.

In the instant case the complication is in the factual position, in particular, the relation between the Plaintiff and the Defendant No. 1 which were very intimate for more than twenty years, from about 1939 when the former-literally a girl in her teens-fell into the hands of the latter, upto 1960 when the differences became acute and he had separated from her. During this period, the Plaintiff had not only been the mistress of the Defendant No. 1 but also a sort of domestic drudge helping him to run a nourishing hotel business. Unlike the vast majority of people who live with mistresses the Defendant No. 1 has done extremely well for his status, and has during these twenty years got a house in which he has kept his married wife, a flourishing hotel business, equipment which he hires out for marriage and similar functions, and all these in addition to the present house which stands in his name. This has been possible to a considerable extent because of the services rendered by the mistress-the Plaintiff as well as the two youngsters she had brought to Jaora from Ujjain and kept with her as her adopted sons. If one can find any meaning in the long and otherwise unnecessary preface to the sale deed conveying this property to his married wife, it is that he has, after twenty years, found the mistress of no more use to him and was accordingly throwing her away as a sucked orange, but not without a feeling of guilt.

In such a situation, allegations are made by either party and a good deal of evidence adduced in that respect that are really unnecessary for a decision on the main controversy. The questions that have properly to be considered can be listed thus:

(1) Whether the amount of Rs. 3,800 paid in 1950 in part to a mortgagee and in part to the vendors themselves really came from the Plaintiff ?

(2) If it did, whether she had intended at that time itself that it was not a gift to her lover and that the property purchased should be hers though as a matter of convenience it was to stand in his name?

(3) Why exactly was such an arrangement thought of at all ?

(4) In a similar manner, whether the considerable sums spent in 1956-57 in the repairs and the enlargement of the house really came from the Plaintiff and if so, whether it was intended that the property created in return should be hers ?

(5) The effect of the Plaintiff''s undoubted possession of the deed of purchase ?

(6) Whether the Plaintiff was exercising possession on her own as distinguished from that of the Defendant No. 1 with whom she was living all the time in part of this house ?

(7) Whether the so called Vishwas Patra Ex. P/7 dated 9-2-1950 had been really executed by the defendent No. 1 and further, even if it had been, how far it can support the theory that the property purchased subsequently was held in benami on the Plaintiff''s behalf ?

(8) Whether the unusual recitals in the sale-deed by the Defendant No. 1 to his wife Defendant No. 2 give support to the theory of benami?

A good deal of the evidence-and also the argument in the lower Court -was in regard to the caste and the original home of the Plaintiff, and the nature of her relationship with Madansingh in his time, and further whether the two boys, she had brought from Ujjain, are her adopted sons. These questions are not germane to the present controversy and will only be touched upon in the appropriate context.

Though the dispute between the parties started in 1960, the story of their relations really begins in about 1939 with the death of Madansingh, a motor driver and mechanic working at Jaora. Considering the smallness of the town and the humbleness of the avocation, Madansingh is said to have done well by the standards of motor drivers and mechanics. He had his own relations one of whom has come as a witness for the Plaintiff in this litigation though he seems to have been ranged against her and on the side of the other relation in the earlier disputes between them on the one side and this woman on the other. It is clear, however, that from a few years before his death, this woman, who at that time must have been in her teens, was living with him; whether as a concubine or his wife, it is neither possible nor necessary for us to decide at this stage. His other relations naturally did not approve of this woman, so that when he died, she was taken over by the Defendant No. 1 who was also a motor driver intimately associated with Madansingh. Her suggestion is that he was a sort of ''chela'' learning the trade from Madansingh which he repudiates. It is a common ground that on Madansingh''s death this woman did not go to her own relations whoever they were and wherever they lived, nor did she seek the help of Madnsingh''s people, but started moving from place to place in company of the Defendant No. 1, who was making full use of her as a mistress. Whatever she got from Madansingh, on which there are different accounts could possibly have been only the movable property and conceivably the ready money, if any, he had kept at his residence. She did not claim or get any immovable property or, as for that matter, bank accounts or securities, if any such had been in possession of Madansingh. From that date till the present quarrel more than twenty years later, this woman had been living with the Defendant No. 1 at different places to begin with, but continuously at Jaora after the first few years. The considerable quantity of research, the latter claims to have made in regard to the caste and parentage of the Plaintiff, is quite beside the point. Now he asserts that she is not the brahmin she claims to be, but really a chamarin, and he has actually propounded a geneology which we are not able to verify. Any way, chamarin or brahmin, she was found good enough for his purposes and he had been living with her for a long period without the least qualms just as if she was, what she claims to be, a brahmin not inferior in holiness to himself. It has to be remembered that all the time the latter had his own wife in another part of the town. Unlike most people, who live this sort of double life, the Defendant No. 1 has prospered; he had already well before 1950, built a house for the wife which he religiously named Vishnu Bhawan. He had also begun to run a hotel which he named Shiv Hotel, by all accounts a prosperous business by the standards of the small town that Jaora is. Admittedly the cooking part of the business, which of course is the most exacting one, was done by the Plaintiff, while the service part of the work was at least in part done by one or both of the two boys already mentioned. In 1950 itself the present house was purchased and named Hari Bhawan. The Plaintiff''s story is that she had brought about Rs. 15,000 in cash from Madansingh and had, in addition, been earning small amounts by teaching and by tailoring. The Vishnu Bhawan was really a gift by her to the Defendant No. 1 and had been acquired with her money. We are not, however, concerned with the status of that house. The Shiv Hotel was really her business and the Defendant was a paid servant on Rs. 30 a month and was rendering account every day. Here again, the ownership of that business is not a direct issue, but if Plaintiff''s story is true and the Defendant No. 1 was rendering accounts and making over the day''s income every evening, she must have been in possession of considerable amounts over and above what she had brought from Madansingh. The Defendant of course denies all this and asserts that the business was his and he was not a servant.

The Plaintiff''s case is that early in 1950 the Defendant No. 1 reassured her of his loyalty and promised to play no tricks in regard to the properties in bis name and really belonging to her. On her insistence he reduced it to writing in Ex. P/7 a lengthy and rhetorical document-parts of which will be referred to in time. Among other recitals, there is an undertaking by the Defendant No. 1 to call a Magistrate to the house and convey to the Plaintiff any properties he might purchase in the future in his name but with her money. The Defendant, it may be noted, denies having executed any such ''Vishwas Patra'' and asserts that Ex. P/7 is a forgery.

In July 1950, that is about five months after the date of the ''Viswaa Patra'', Abdul Wahid, Mohammadji, Mohammad Yasin and Gulam Rasul, ail brothers, sold the present house to the Defendant No. 1 for Rs. 3,800 about half of which had to be paid to a mortgagee named Motilal and the balance to the vendors themselves. He and the plaint iff moved into this house which was in time named Hari Bhawan. The Plaintiff''s assertion is that one of the two boys is Hari and this name was given to make it clear that it was her house though the purchase was in the Defendant''s name. As against it, the Defendant No. 1 says that being a religious man and having named one house, that is the house in which his wife lived, Vishnu Bhavan and the hotel Shiv Hotel, he thought it proper on his priest''s advice to sanctify this house with the name of Hari. Be that as it may, both the parties continued living in this house and running the hotel. By 1956-57, the house was enlarged at the expense of a good sum of money, the Plaintiff''s own statement being that Rs. 15,000 had been spent. Now the house was big enough to accommodate not only the parties but also a number of tenants. Till November 1959, that is within some months before the dispute, all rent collections were in the name of Shivnarayan. They are all noted in a register by the Plaintiff acting as clerk or the manager of Shivnarayan; it comes from the Defendant. But towards the end of 1959, there were two occasions on which the tenants paid to the Plaintiff, it not being clear whether or not they were really distinguishing between the ownership of the two who were living together.

On 13-6-1960, the Defendant No. 1 executed this sale in favour of his wife Defendant No. 2 for Rs. 8,000. Such a sale would in any event be suspicious; but this begins with the most extraordinary preamble. The vendor had fallen ill and was fearing something serious. He had two houses of his own, that is, the Vishnu Bhavan, already referred to, and Hari Bhavan which is the subject-matter of the present suit. He was selling both of them to the defendant No. 2 his wife, the latter for a consideration of Rs. 8,000. Whether or not anything was paid and whether indeed the title of this house passed to the Defendant No. 2 is not of much consequence in the present suit. Both the vendor and the vendee are Defendants, but in effect it is the Defendant No. 1 who has contested. If it is found that he is the benamidar, the sale to the defendant No. 2 would in any case be of no consequence as the latter has not set up a case of good faith purchase from the ostensible owner. If, on the other hand, it is not a case of benami, then the Plaintiff''s suit would stand dismissed whatever the nature of the sale covered by the document dated 13-6-1960. All the same, the circumstances and the wording of the deed do shed some light on the relations between the parties which will be examined in time.

Question No. 3- A benami transaction is something out of the ordinary and the party setting it up has to give a reasonable account of why it was at all thought of. Certainly the motive has to be assessed with due regard to the habits, outlook and the special circumstances of the parties concerned, but it is not correct to assume that everybody is out to have his property benami in another''s name just for the sake of doing so. That way everybody will be able to claim his neighbour''s property. Accordingly, the Courts call upon a party setting up a case of benami to indicate why he the real owner thought fit to inconvenience himself by doing things so round-about. The occasions in which such an arrangement takes place can be broadly stated thus:-Quite often, the real owner wants to place the property outside the reach of possible claimants such as co-sharers, partners or creditors. It is the apprehension that is the key to this motive whether or not it is justified. There is always an element of dishonesty or concealment in such a situation and the benamidar is, as it were, in pari delicto. Another context is where the real owner believes that the name of a relation is likely to bring good luck and accordingly acquires the property in his name. The benamidar is quite frequently a junior relation supposed to have bora under good stars at any rate better stars than the real owner. Here, there is no concealment or dishonesty and at best an element of harmless superstition. Yet another position is conceivable where the property calls for management of a kind that the real owner is unable to do. It would be an alternative between the appointment of a regular manager and the creation of a benami. Here again, it is for the claimant to actual ownership to give reasons why, instead of appointing the particular person as manager, it was thought fit to make him the nominal owner.

Whatever the purpose, the actual owner does in all such cases keep some control or other check to prevent the benamidar from betraying his trust and setting up himself as the real owner.

In the instant case, the Plaintiff''s story is quite unusual. When she was going to buy the house, the Defendant No. 1, who was of course the lover who had been living with her for several years, said that there would be difficulty in the management and in going to the Courts and it would be better that the property was bought in his name. It is difficult to understand. After all, it was a house in which they were to live and perhaps out of which they were to rent out portions. Management in such a situation would amount to collect the rent from time to time from the tenants and, possibly, to sue for the arrears in case of default. There would of course be the need for repairs and maintenance. These are by no means such complicated transactions that a woman owner should be obliged to have a benamidar. It is of interest to note that, as women go, the Plaintiff was not, at least in 1950, so helpless. She was not ''pardah-Nashin'' and herself states that she was teaching people and doing some tailoring as a profession. It may be that ten or twelve years before that date, when Madansingh died, she was helpless being very young and new to that locality; but during this period, she had learnt a good deal in the hard school of life. What is even more surprising is that she herself asserts that in regard to the hotel which she claims was really hers, she had kept the defendant No. 1 as the manager. Whether it is true or not, this shows that she knew that things could be conveniently looked after with the help of a manager. The house did not require anything like day to day attention and dealing with members of the public as the hotel. Thus the motive for a benami as suggested by the Plaintiff does not at all appear adequate; in fact, no motive has been made out for the alleged arrangement.

Question No. 1:-The Plaintiff''s assertion is that it was she who paid the total amount of Rs. 3,800 in part to the mortgagee and in part to the owners. How she could produce this amount at all is a pertinent question which she has answered in a very high sounding language. According to her, Madansingh had left her Rs. 15,000 in cash and some other movable properties.

[After considering the evidence and rejecting the Plaintiff''s story, the judgment proceeds-]

The vendors have not been called though obviously some of them are available at Jaora. On the other hand, the mortgagee of that time Moti-lal has been called as P.W. 1 who asserts that his claim of Rs. 15,00 had been satisfied by Ratanlal Sonar and who has to be distinguished from Ratansingh brother of Madansingh. Ratanlal Sonar''s evidence shows that on the one hand he has come fully to support whatever the Plaintiff states and on the other, has not a single document by way of receipt or satisfied Hundi to support his assertions. It is significant that in reply to the court-questions he asserts that the hotel was the joint business of the Plaintiff and Shivnarayan and further, there was a taxi in the name of Shivnarayan in which he, the witness, was also claiming a share. It is difficult to avoid the impression that this witness was coming to support the Plaintiff''s claim by giving oral evidence in return for her support of the witness''s own claim for a share in the taxi owned or at least ostensibly owned by Shivnarayan. Certainly the oral evidence of such a witness cannot be accepted.

Then there are the loose statements by one or two witnesses that the Plaintiff had been doing money-lending on hundis. The story is most unconvincing because there is not a single document to support it.

It is thus certain that the Plaintiff did not have any considerable amount with her either when Madansingh died and, at all events, when the house was purchased in 1950. She could not possibly have paid Rs 3,000 or 4,000 at that time from her own money.

Question No. 2:-In addition to showing that the Plaintiff really paid the price though the property was acquired in the Defendant''s name, she has also to prove that even at that time it was intended that the property should be hers and the amount was not a gift to the Defendant No. 1. This can only be shown by the actual owner taking certain clear precautions against the ostensible owner setting up his own title. The Plaintiff''s case in this regard is that she kept the titled deed with her and further that she had been in possession of the property all the time.

Question No. 5:-The Plaintiff has produced the title-deed in the Court which, other things being the same, is a point in her favour. Her story is that she had retained the title-deed from the very beginning, that is to say, from 1950 itself. The Defendant No. 1 on the other hand states that he had kept it along with his papers but early in 1960 during his illness, the Plaintiff, who was living with him, managed to steal it. It is difficult to decide either way especially as the two had been living together on the most intimate terms. Though the Defendant has exaggerated its seriousness, there is no doubt that he had been ill at about that time, whether or not that illness was the occasion and cause of his decision to throw overboard his mistress and come back to his married wife giving her all the properties in his possession. Again when two live together as man and wife, though unmarried, there is ample opportunity for either to take away the movables belonging to the other. Thus the possession of the deed is a point in favour of the Plaintiff but it is by no means conclusive.

Question No. 6:-Another point urged on behalf of the Plaintiff is that there are at least two rent-deeds in her favour executed by the tenants for portions of the house....

[After considering the circumstances regarding the rent-notes, the judgment proceeds-]

Thus the two rent payments for a short period immediately before the execution of Shivnarayan''s sale deed that started the dispute are not sufficient to establish the Plaintiff''s possession-. If anything, this supports Shivnarayan''s case that he was in possession since the purchase of the house.

Question No. 4:-It is common case of the parties that large amount had been spent in 1956-57....

[After holding that there was no evidence to show that the Plaintiff spent money for the repairs and alterations the judgment proceeds-]

Question No. 7:-The Plaintiff has set much store by what she has called the Vishwas Patra Ex. P/7, along-winded rhetorical document supposed to have been written by a scribe and signed several times by Defendant No. 1. This was in February 1950 four or five months before the purchase of the property in dispute here and about ten or twelve years after the two had begun to live together. Already for a few years he had been running the hotel business and built another house which he had given to his married wife. According to the Plaintiff, she was given this paper as an assurance that he would play no tricks in regard to properties and the hotel which she had got in his name, though they really belonged to her: the Defendant for his part denies that he ever executed any such document and described Ex. P/7 as a forgery. The trend of the document, if it is genuine, would indicate that the writer was anxious to get his mistress more and more completely under his control. Nor in itself is there anything improbable in the Defendant reducing to writing, profession that persons in his situation are not unlikely to make. However, a document produced by a party has to be tested in the established manner; by that the Plaintiff has really failed to prove its execution. The Defendant has denied the signatures but that by itself is not of much consequence. But the scribe has not been examined though it is not the Plaintiff''s case that he is dead. The document runs into several pages so that, even after ten or twelve years, it should be perfectly easy for the scribe to recollect. There is no explanation about this omission. Again, there are three witnesses, which itself is unusual; one of them, Ramchandra P.W. 15, has been examined, and gives an account, on the face of it, improbable. The others have not been called at all. What is very strange, specially in the light of the Defendant''s denial, is that it has been ostensibly signed by him at as many as five places. Strangely enough in the copy given by the Plaintiff at the earlier stages there are only three signatures. There is nothing unusual in a signatory, who finds his signature shaky or blurred, in signing, again; but one does not expect him to go on signing repeatedly when each of the signatures is clear enough. On the other hand, if an amateur is forging a signature, it is by no means improbable that he repeats the performance so as to make it sure. This feature is only mechanical and can be explained but the trouble here is that the Plaintiff has given no satisfactory explanation.

In the record of the Defendant''s evidence in Court, there is a passage which seems to suggest that he was inclined to admit having given some ''Ikrar-nama'' to the Plaintiff. This is quite against the trend of his evidence and he is otherwise categorical in denying having given any such agreement and certainly not the one produced by the Plaintiff as Ex. P/7. The trial Court itself did not read this passage as an admission. It appears that in the civil Courts in the State the witness himself does not sign the deposition but the Court, having recorded it, reads it over and gives a certificate that the witness had heard and admitted the correctness. Considering everything, we are not prepared to read in that passage an admission neutralising the repeated denials. We were, however, prepared even at the appellate stage if the Plaintiff so desired, to send this document for the expert examination of the signatures. We would also have permitted her to examine the scribe. But, surprisingly enough, the Plaintiff declined to adduce further evidence in this regard. So, on the evidence as it now stands, we are not in a position to hold that this document-the so called Vishwas Patra-was really executed by the Defendant No. 1.

Actually the document has been given more importance than it deserves. It has really no direct bearing on the present controversy, a good deal of it, as already noted, is mere her lover''s rhetoric for which the Plaintiff says she fell. There is a reference to the other house (Vishnu Bhawan) with which we are not concerned. There is a statement that the hotel really belongs to the Plaintiff. With that also we have no direct concern though indirectly it involves the possibility of the Plaintiff having been in possession of considerable sums of money if indeed the Defendant was making over to her the daily collections. However, we have separately examined and noted our conclusions in this regard. This Vishwas Patra could not have any reference to the present house because it was purchased later on. However, there is a statement to the effect that if the Defendant purchased property later on in his name with the Plaintiff''s money, "he would call an officer to the house and get the property transferred to the Plaintiff in his presence". Now, assuming that the Vishwas Patra is genuine and assuming also that the present property has been purchased with the Plaintiff''s money, she could expect a re-conveyance in her name with due formalities. There was admittedly no immediate demand by the Plaintiff for such reconveyance; if there was, and it was not complied with, we would have expected the suit much earlier than after ten years. Thus looked at in any way, the Vishwas Patra, to which so much attention has been devoted, does not affect the merits of the suit.

Question No. 8:-Finally we have to see if the peculiar recitals by way of preamble to the Defendant No. 1''s sale of the property to his own wife support the Plaintiff in her contention that he was only a benamidar. Clearly, they show that the vendor was feeling guilty and was afraid of some trouble or claim from the mistress. To be certain, he had been ill, but the illness was not such as to shake him to the depth of his soul and lead to what is called a moral conversion. It is obvious that he was acting on a plan and was putting this house (as well as the other house called Vishnu Bhawan) beyond any claim, reasonable or othewise, that his mistress the Plaintiff might make. We have already given a picture of the situation. He was just pulling out, throw-ing her away and returning, like a pious soul, to his married wife after twenty years of life with her, during which he had done extremely well in worldly goods. His sense of guilt can be understood without the theory that the property was held in benami. How these two lived for the five or seven years before the starting of the hotel has not been described; but it is clear that she for her part was doing some teaching and some tailoring while Shivnarayan was driving a car. Their condition was humble; it improved when the hotel was started. While there is no evidence that he was only the benamidar, there is a definite admission that the labour-part of the work was done by the Plaintiff and the two boys who were, de facto at any rate, her adopted sons. It is out of the hotel income that the houses had been bought and rebuilt, so that the Plaintiff deserved, on moral grounds some consideration from her lover. But in 1960, after twenty years of her slaving for him, the Defendant was retaining everything and throwing her overboard. Even an adventurer is not without moral qualms; this adequately explains the apologetic tone of the preamble to the sale in his wife''s favour.

The result of this discussion is that the only point in favour of the Plaintiff''s case is that she is in possession of the title-deed. There is altogether no other indication of her being the real owner and the Defendant No. 1 the nominal one. In that view of the matter, the possession of the sale-dead is not conclusive; apart from it, the Defendant has explained how it was possible for the Plaintiff to come into its possession.

There is no doubt that the Plaintiff has a moral claim on the Defendant No. 1. He for his part has, on a systematic plan, exploited her person and her labour most unscrupulously and having acquired all that he could out of them, has just thrown away the squeezed orange. However much we disapprove of the Defendant''s conduct on moral grounds, we cannot find that she is the real owner of this property and he the benamidar. She just slaved for him and he has taken full advantage.

Accordingly, the appeal fails and is dismissed. The Plaintiff-appellant shall pay costs and pleader''s fee on minimum contested scale.