V.O.C. Arumugham Pillai vs A. Ilango and Others

Natesan, J.—The first plaintiff has preferred this second appeal, having failed in both the courts below in his suit for a declaration that the suit

properties belonged to him alone and for an injunction restraining defendants 1 and 2 from interfering with his possession and enjoyment of the

same. The appellant (first plaintiff) is the father, the second defendant is his eldest son, the first defendant is his second son, the second plaintiff and

the third plaintiff being his third and fourth sons respectively. The suit properties originally belonged to the Zamindar of Ettayapurajn and formed

part of his pannai lands. Items 2 and 3 of the plaint schedule, totalling an extent of 15.62 acres of punja lands in Sinnur village, are covered by the

sale deed Ex A. 8, dated 21-2-1956 executed by the Zamindar in favour of the first defendant that is, the second son for a stated consideration of

Rs. 1,500/-.

The plaint-schedule first item is another 30 acres of punja lands in the said village and have been conveyed by the Zamindar for a consideration of

Rs. 5000 under the deed of sale Ex. A. 5 dated 23-2-1958 in favour of the four sons, that is, plaintiffs 2 and 3 and defendants 1 and 2. It is the

appellant''s case that the sale deeds Ex. A. 5 and A. 8 were taken by his benami in the names of his sons for his exclusive benefit and use out of his

own funds. He claimed that the suit items belonged to him absolutely and that the first defendant''s attempt to alienate the properties and interfere

with his possession and enjoyment necessitated the suit. The defendants denied the exclusive claim put forward by the appellant to the properties.

The defence in the main was taken up by the second defendant, who pleaded that the properties belonged to the family as such and are not the

individual absolute properties of the first plaintiff. The plea of benami acquisitions by the appellant for his sole and his exclusive use in the names of

his sons was repudiated even as the appellant''s claim of his exclusive possession and enjoyment of the suit properties.

As in the context of the dispute the figuring of the other sons as plaintiffs looks somewhat intriguing, I may as well refer to certain features in this

regard, which are brought out in the evidence.

* * * * *

As the contest emerged at the trial and is pressed before me, the question for decision in the case is, whether the two sale deeds are only

benami for the appellant or they are purchases for the joint family of the appellant and his undivided sons. The question of benami is essentially one

of fact and when the decision has been given on the merits, bearing in mind the well-established principles for the determination of the question of

benami, the second appellate Court has no jurisdiction to interfere in the matter. Now the trial Court, the District Munsif, Koilpatti, on a

consideration of the evidence has rejected the motive or reason for the benami put forward by the appellant The plaint did not set out specifically

the reason for going in for a benami transaction. It was stated vaguely that for certain reasons the sales were taken benami. In the evidence it was

trotted out that the sales were taken benami, apprehending land ceiling enactments.

Another reason given for the benami was that as a Government servant, he did not want to take sales in his own name. The lower appellate1 Court

concurred with the trial Court in rejecting the motive put forward for the benami. It is pointed out that a Government servant could purchase lands

in his name with the permission of the Government and that he could have equally taken the lands in the name of his wife and daughters. No

explanation was given by the appellant for not seeking the permission of the Government to make the purchases, if they were bona fide purchases.

Admittedly in 1957, he had accepted a gift of 17 acres from the Zamindar. He had not taken any prior permission from the Government to receive

the gift. He would state in his evidence that he later intimated to the Government of the gift. According to the trial Court, the taking of documents in

the name of the father and the sons probabilises more the case that the acquisitions were made to benefit the entire family and not merely the

appellant. Learned counsel for the appellant attacked the reasoning of the Courts below for rejecting the motive put forward. I cannot say that the

Courts below have gone egregiously wrong in their reasoning to call for interference with their finding in second appeal.

Learned Counsel then suggested that the absence of motive for benami is not always conclusive on the question. True, but when the purchase in

the names of one or other or some of the members of the family is consistent with an intention to make the acquisitions for the family and there is

nothing unusual in such acquisition, certainly, the Court may Rive some weight to the absence of motive and absence of an acceptable explanation

for taking the sale deeds in the names of his sons. Even as the absence of a motive need not necessarily exclude the theory of benami, the fact that

some motive is shown will equally not bar the rejection of the plea of benami. While on questions of benami, the Court will not indulge in suspicion

and surmise, it will have to take into consideration the facts and circumstances as established by the record and from an overall picture of the entire

evidence, draw Its inference. Motive, the source of consideration, possession of the property and its enjoyment, custody of title deeds, these, are

various features, which may severally or cumulatively weigh and tilt the scale one way or other. But these features are not exhaustive of the

circumstances on which the final conclusion of the Court has to be based. Nor can it be said that in all cases the presence or absence of one or the

other of these circumstances will be helpful in deciding the real position. At times other considerations than motive, possession and sources of

consideration may play a vital part in the determination. In certain circumstances only one or the other of the above specified elements may alone

be of assistance.

Coming to the question of consideration, the trial Court was not prepared to accept the appellant''s case of his source for the purchase money.

It referred to the fact that the parties had an ancestral house, that the compensation for its acquisition had been received by the appellant and that

the maternal grandfather was a man of property, whose only issue was the appellant''s wife. Taking into consideration the further fact that the

second defendant had been earning from 1953 onwards and that the letters produced by him showed that the appellant had been repeatedly

asking him for moneys, the trial Court concluded that in the circumstances, it could not be said that the appellant advanced his exclusive and

separate funds to get the suit properties. The discussion by the trial Court on the Question of consideration is very brief, but the conclusion is

categorical. The claim of the appellant of his savings is disposed of summarily with the observation that there was no evidence worthy of credence

in regard to the alleged savings. It would accept the borrowing by the appellant of a sum of Rs. 2500 under the promissory note Ex, A. 1 on 11-1-

1958, just before the purchase under Ex. A. 5.

The appellate Court, on the question of savings, whether the appellant had savings and whether those savings were utilised as consideration for the

sales, under Exs. A. 5 and A. 8, after some discussion, observes that the appellant had not filed into Court his accounts to show whether he had

savings and those savings were utilised for the purchases. But on the question of consideration, generally the appellate Court would state that the

appellant had paid consideration for Exs. A. 5 and A. 8, by his borrowings and by sale of the jewels of his wife. Learned Counsel appearing for

the appellant rests his appeal mainly on this finding of the learned Subordinate Judge and would contend that adequate attention has not been given

by the lower appellate Court to its own conclusion that the consideration for the sales had passed from the appellant. Counsel contends that who

paid the consideration is an important criterion, when considering the plea of benami and could, at times be decisive.

Learned Counsel points out that while the trial Court rejected the appellant''s case of his providing in entirety the consideration, the appellate Court

has found contra; but the significance of this finding has, however, been lost sight of by the Court. On this Counsel for the respondent, before me,

urges that the finding as to consideration to the extent it may he said to be in favour of the appellant has been arrived at in a perfunctory manner

without that analysis and scrutiny of the evidence, which may be expected of the appellate Court. He contends that the finding, if it is to be read as

differing from the trial Court and as meaning that the entire consideration for the sales were found by the appellant, could not be maintained at all

on the evidence. Learned Counsel would further submit that the learned Subordinate Judge had only said that P. W. 2 had paid consideration for

Exs. A. 5 and A. 8 and not that he paid the entirety of the consideration.

5-A. But it is not whose hand that physically passed the consideration that is material; it is the source of the money that is important. As the

criticism of the learned Counsel for the respondents does not appear to be wholly unjustified, it has become necessary to examine the evidence, in

the case, oral and documentary, somewhat in detail, not ordinarily called for in a second appeal In the finding there is also some vagueness about

the source of the purchase money. Earlier, I have remarked that the trial Court has been very brief in its discussion on the question of

consideration; even the exhibit numbers and rank of the witness whose evidence is relied on is not given in this part of the judgment. The only

redeeming feature in the discussion on the question by the appellate court is, it makes some reference to exhibit marks and the rank of the

witnesses, whose evidence the courts relies upon or is taken into consideration. But as will be seen presently it cannot easily escape the charge of

being perfunctory. It will be convenient here to set out the relevant part of the appellate Court''s judgment, which deals with the question of

consideration.

..... ...... ...... ...... ...... ...... ...

(After discussing the facts his Lordship proceeded)--

The very submission of the appellant and his own evidence, may not lead to the conclusion that the consideration for the sales Exs. A. 5 and A.

8 was found at any rate in full by him. It appears as if the learned Subordinate Judge has merely set out briefly in the judgment, the arguments

advanced that the bills Exs. A. 9 to A. 12 prove the passing of the consideration, without looking into the documents and scrutinising the same.

True. it is unnecessary that the Court should set out in detail in all cases contents of documents. But certainly, the Court has to examine whether at

all the documents relate to the issue in question and could advance the case of either party. Can it be said that the learned Subordinate Judge had

applied his mind to all the relevant evidence before him when he gave his finding as to the passing of consideration for Exs. A- 5 and A. 8 and to a

certain extent varied the finding given by the trial Court?

That the discussion has been summary can equally apply to the trial Court''s judgment. If the trial Court had been a little more elaborate and had

briefly indicated the contents of the documents, it may not be necessary for the appellate Court to refer in detail to the contents of the documents,

particularly when it is confining the findings. In this case, all that was necessary was to see whether the bills in question and if so, which of them,

could be related to the purchases; and the material documents are few. The discussion by the appellate Court in the circumstances is to say the

least unsatisfactory containing just a catalogue or listing of the documents without any consideration of their probative value. While prolixity and

elaborate setting out of the contents of documents or evidence should be avoided, when the Code enjoins that the judgment must contain reasons

for the decision, the reasons set out must be founded on the evidence, oral and documentary. Justice must not only be done, but the judgments of

the lower Court which are subject to appeal must do justice to the cases of the opposing parties, particularly on facts.

The purpose of the requirement is obvious, it eliminates charges or arbitrariness and infuses confidence in the litigant public, that the decision has

been given after an understanding of the case. Under our system, the judgment is not mere formal conclusion, but a reasoned pronouncement, that

within the bonds of reason no defeated litigant may leave the Court, with the feeling that the Court has failed to consider his case. No doubt, the

omission to make special mention of pieces of evidence or failure to refer in detail to the evidence on any particular aspect or issue do not lead to

any presumption that the evidence has not been adequately or reasonably considered. But here, the appellate judgment does not show any real

scrutiny of the evidence; for, if there had been such scrutiny, there would have been no reliance on at least on some of the documents. I am

perfectly conscious that the subordinate judiciary is hard pressed for time. I have also a feeling that in this case the Courts and Counsel have not

had that cooperation from the parties or some of them at least as would have been expect ed. But all the same, it is imperative, that Courts below

deal reasonably with facts and set out what the evidence consists of and how it proves or advances the case of one or the other of the parties. The

lower Appellate Court is the final Court of fact and its findings have been given a sanctity u/s 100, C. P. Code. The responsibility of that Court is,

therefore, all the greater.

To take up the contention of the respondent that the learned Subordinate Judge does not find that the entire consideration for the sales had been

paid by the appellant; there is something to be said for this. The learned Subordinate Judge only states that it could be said that P. W. 2 had paid

consideration for Exs. A. 5 and A. 8 from the borrowings and by sale of the jewels of his wife. There is no specific finding varying that of the trial

Court that the exclusive separate funds of the first plaintiff were not shown to have gone for the purchaser. The District Munsif refers to the letters

of the appellant to the second defendant for moneys and things. In Ex. B. 12, he writes to the second defendant to send money for going in for a

further purchase from the Zamindar.

But even assuming in favour of the appellant that the entire consideration for the sales had been provided by the appellant, that may not be

conclusive of the question. As it is, when it is not clearly made out that the consideration has wholly been provided by the father even assuming that

the sons have not proved their contribution, the mere fact that a good part of the consideration is proved to have proceeded from the father cannot

be decisive of the question. I have pointed out already that for the purchase under Ex. A. 5, proceeds from the acquisition of the ancestral house

could have gone in.

In this connection I may refer to the observations in Chittaluri Sitamma alias Sitabayamma and Another Vs. Saphar Sitapatirao and Others, . After

pointing out that the onus lies in the first instance on the person, who pleads that the transaction is benami, it is observed as follows--

The 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 similar 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 criterion"".

In Ramnarain v. Md. Hadi, I.L.R.(1899) Cal 227 , the Privy Council held as follows--

The first court had attributed too much to the fact that the plaintiff had supplied the purchase money, an important fact in most of the cases raising

the question of benami, or not benami, but not the only test of ownership,

The source of consideration is only one of the tests and it cannot conclude the matter and in the present case the matter for enquiry is, whether the

father a member of an undivided family when making the purchase decided to hold the property exclusively for himself or intended when acquiring

the property to acquire for the family. If the acquisition by the father had been in his own name, and the consideration had proceeded from his

personal funds then there will be little difficulty in holding in the absence of evidence of very clear intention to treat it as family property, that it is his

self-acquisition. But the properties have been purchased in the names of the sons and the motive pleaded for the benami purchase has not been

accepted. The Courts below are agreed in holding that it had been treated as the property of the family and was so looked upon by P. W. 2

himself.

Correspondence produced clearly show that the property had been treated as property in which all the members of the family were interested and

this is the basis on which the lower Appellate Court has rejected the appellant''s plea of benami and affirmed the decision of the trial Court. Ex. B.

12 is the letter dated 2-3-1956 by the appellant to his second son already referred to. Herein he intimates his son, that he had purchased 26 acres

of land at a very concessional rate and paid the full costs and the document had also been registered.

* * * * *

(After discussing the facts his Lordship proceeded.)

The learned Counsel for the second respondent submits that the Zamindar was parting with the Pannai lands which under the settlement

proceedings have been given to him at heavy concession and he was obviously intending to benefit the family of V. O. C., the father of the

appellant and not the appellant alone. It may well and properly be so. Several other considerations, the status of the family and the position in

which the several parties were placed, the fact that the second defendant to an extent was contributing for the expenses of the family, the manner of

the acquisition, all, according to learned Counsel for the respondent, properly led to the conclusion that the acquisitions must have been for the

family. The ultimate conclusion on the question as I set out at the beginning whether the lands were acquired by the appellant by himself benami in

the names of his sons is a pure question of fact and this question has been concurrently found against the appellant by both the Courts below. The

Courts below on evidence which could sustain the finding, find that the acquisitions should have been for the benefit of the joint Hindu family

consisting of the appellant and his sons. The appellant and the other members of the joint family, all have interest in the lands and the courts below

find that the appellant has not made out his case of exclusive possession and enjoyment of the lands and that property. Once it is found that the

lands have been acquired for the family, on an overall picture of the case having regard to the fact that the sons were serving in different places, no

question of the appellant attempting, to prove the benami character of the sales by his payment of kists or his management of the lands, can arise.

These are normal happenings and modes of enjoyment in Hindu families. Even though the Courts below have in their judgments sacrificed a full and

careful analysis of the case of the parties at the altar of brevity not always a steady one, the ultimate finding of fact is perfectly justified on the

evidence on record. The failure of the Courts below to advert to and deal with the evidence, oral and documentary, as fully as they ought to have

done in a case of this kind, has not affected the decision of the case on the merits.

In the result the second appeal fails and is dismissed. Having regard to all the features of the case, I am not awarding any costs. No leave.