Shri Dhirendra Nath Adhikari vs Shri Paresh Adhikari and Others

B.L. Hansaia, J.—The Plaintiff having lost in both the Courts below has preferred this appeal. He approached the Court for seeking a declaration that he was the absolute owner of the land described in schedule of the plaint. His case was that the laud is suit was the absolute property of his mother Sarojini which came to be recorded during the last settlement operations it. The joint names of the Plaintiff and Defendants whereat, the Defendants threatened to dispossess from the property which gave rise to the cause of action for filing the suit. The Defendants on the other hand stated that property though purchased in the name of Sarojini in fact belonged to their father Dinanath whose first wife was Sarojini through whom the Plaintiff was born. The Defendants are the sons through another wife of Dinanath. The learned Munsiff accepted the case of the Defendants that the present was a case of bona(sic)l purchase. This finding has been upheld by the learned Assistant District Judge.

This being the position it is submitted by Shri Sarma for the Respondents that the appeal is concluded by concur and finding of fact and should not be disturbed in this second appeal. He relies on Meenakshi Mills, Madurai Vs. The Commissioner of Income Tax, Madras, A reading of paras 26 and 27 of this judgment shows that though finding relating to benami is a matter of inference from various primary facts, nevertheless it is a question of fact. Reference was made in this decision to AIR 1949 88 (Federal Court) and Misrilal Nayak v. Mt. Surji AIR 1950 PC 28, in the latter of which case it was specifically stated by the Privy Council that a finding of benami is one of fact and not open to attack in second appeal. Of course, if the finding is arrived at on the basis of wrong legal principles, there can be no denial that the same would be amenable to interference at the hand of this Court even in second appeal.

Let us therefore see whether the finding arrived at is one based on correct principles applicable, or the Courts have led themselves astray in this regard. Reference to the judgment of the learned Assistant District Judge shows that he applied his mind to three tests in this regard, these being (i) source of purchase money; (ii) possession of the deed of purchase and (iii) the management of the property. Now a reference to decisions of the summit Court shows that these are very relevant factors in judging the question whether a transaction is benami or not. Reference may be made to Jaydayal Poddar (Deceased) through L.Rs. and Another Vs. Mst. Bibi Hazra and Others, in which the following indicia were laid down to decide this question:

(1) The source from which the purchase money came;

(2) the nature and possession of the property;

(3) notice, 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 benamdar;

(5) the custody of the title deed after the said; and

(6) the conduct of the parties concerned in dealing with the property after the sale.

Shri Sen has also referred in this connection to Thakur Bhim Singh (Dead) by Lrs and Another Vs. Thakur Kan Singh, where the principles governing determination of the question whether a transaction is benami or not were summed up as below in Paragraph 18:

(1). The burden of showing that a transfer is a benami transaction lied on the person who asserts that it is such a transaction; (2) if it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the parsen who supplied the purchase money unless there is evidence to the contrary 5 (3) the true character of the transaction is governed by the intention of the person who has contributed the purchase money; and (4) the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motive governing their action in bringing about the transaction and their subsequent conduct etc.

Of course, as stated in Surasai Balani v. Phanindra Mohan AIR 1962 SC 1364, the source from which the purchase money came though a material factor is not conclusive to establish the purchase of benami. It would be also apposite to note the holding in Kanakarathanammal v. Longanath AIR 1903 SC 271 where it was pointed out that though the consideration for sale may proceed from a husband, his subsequent conduct showing his admission that the title vested in wife, would negative the case of benami purchase even though the consideration initially came from the husband.

Before proceeding further, it may be pointed out that the burden of proof in this regard is undoubtedly on the persons who alleges benami nature of the transaction. This is not disputed by Sari Sarma for the Respondents. Let it therefore be seen as to how the Defendants discharged their burden. To establish their case of benami, they examined P.W. 1 who is one of the executants of the sale deed and who stated that the negotiation for the deal was made by Dinanath, the father of the parties, and the consideration amounting to Rs. 99/- had also been paid by Dinanath, Indeed, the Plaintiff as P.W. 1 had admitted in his evidence that the suit land had been purchased by his father in the name of his mother Sarojini. The case of the Plaintiff in so far as the consideration money is concerned was that the same had come from his grandmother, to which, effect is the statement of P.W. 2. But then this grandmother though alive was not produced as a witness. This aspect has been noted by both the Courts below. From these materials on record it has to be held that the money did come from Dinanath.

This, however, is not conclusive as stated in Sursai Balani (supra). Let it therefore be seen as to what are the other circumstances in the case to establish the averments of benami. Shri Sarma has mentioned in this connection the following circumstances. First, the sale deed came from the custody of the Defendants which is one of the factors mentioned in Jaydayal Poddar. Secondly, the property was possessed jointly by both, the sides. This was admitted by P.W. 1 in his evidence as noted by the learned Munsiff in his judgment. The nature and possession is also another circumstance mentioned in Jaydayal Poddar. Thirdly, the land came to be mutated in the joint names of both the Plaintiff and the Defendants during the life-time of Dinanath and, indeed, as stated by P.W. 3, it was Dinanath who got it done and further as per D.W. 5 this had been done with the consent of the Plaintiff. Finally, the relationship with Sorajini did inspire confidence in the mind of Dinanath to purchase his property in her name.

These circumstances do speak in favour of the benami nature of the transaction. Then it is not a case where there is any admission on the part of Dinanath of any conduct of his to show his admission that the title vested in Sarojini. The decision in Kanakarathanammal (supra) connot, therefore assist the Appellant.

On the facts of the present case, I do not also read any estoppel on the part of the Defendants in asserting the title. The case of Syed Abdul Kader v. Rami Redy 1979 UJ (SC) (Notes) 13 to, which reference has been made by Shri Sen cannot also be called in aid by the Appellant.

The result is that the finding of fact arrived at by the learned Courts below on application of correct principle of law cannot be disturbed. The appeal is, therefore, dismissed. It may however, be stated that the Plaintiff-Appellant shall get his share in the suit laud as one of the heirs of Dinanath.