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2001 DIGILAW 556 (MP)

Mahesh Kumar Malaiya v. Tarabai

2001-07-31

S.P.KHARE

body2001
JUDGMENT S.P. Khare, J. 1. This is plaintiff s second appeal under section 100, Civil Procedure Code. The following substantial questions of law were formulated at the time of the admission of this appeal by order dated 16-7-1984:- (1) Whether the finding of the learned appeal Judge that under the sale-deed dated 16-7-1937, deceased Kundanlal was not the real owner and Tarabai had become the purchaser is perverse? (2) Whether the appeal Judge had jurisdiction to pass a preliminary decree for restitution in favour of the Defendant No. 1? 2. The questions referred to above were decided by judgment dated 27-6- 1990 of this Court and the appeal was dismissed. The application for framing two additional questions of law was rejected. That judgment was challenged before the Supreme Court in Civil Appeal No. 4178 of 1999. By order dated 30-7-1999 the Supreme Court set aside the judgment of this Court in view of the decision of the Supreme Court in R. Rajagopal Reddy v. Padmini Chandrasekharan, AIR 1996 SC 238 by which its earlier decision in Mithlesh Kumari v. Prembihari Khare, AIR 1989 SC 1247 , was overruled. 3. The facts relevant for the decision of the questions referred to above are that the land in dispute bearing Khasra No. 125, area 9.70 acres, of village Maneshiya was purchased in the name of Defendant No. 1 Tarabai by registered sale-deed dated 16-7-1937 for Rs. 200/-. Khasra of this land was changed to 102 at the time of Consolidation. Tarabai is daughter of Kundanlal. He died in the year 1961. Plaintiff No. 2 Gulabbai is also daughter of Kundanlal. He had executed registered gift deed dated 31-5-1950 (Ex.P.-1) in favour of his daughter Gulabbai. 4. The plaintiff's case was that Kundanlal had purchased the suit land in the name of his daughter Tarabai. She was only a Benamidar. The land was actually in possession of Kundanlal and after execution of the gift deed in favour of his daughter Gulabbai she came in possession of this land. She got the name of her son Plaintiff No. 1 Mahesh Kumar recorded on this land in the year 1969. The Defendants dispossessed the plaintiffs from the land in the year 1972 and hence the present suit for possession was filed. 5. The case of Defendant No. 1 Tarabai was that she was the real purchaser of the land in dispute. The Defendants dispossessed the plaintiffs from the land in the year 1972 and hence the present suit for possession was filed. 5. The case of Defendant No. 1 Tarabai was that she was the real purchaser of the land in dispute. She was not a Benamidar. She had purchased the land from her own money. She had paid the consideration to the vendor. Her name was recorded on this land in revenue papers. Her father Kundanlal had no right to make a gift of this land to his daughter Gulabbai. 6. The trial Court held that Kundanlal was the real purchaser and his daughter Tarabai was a Benamidar in the sale-deed dated 16-7-1937. The first Appellate Court reversed this finding of the trial Court and held that Tarabai was the real owner of the land in dispute. The plea of the plaintiffs that she was only a Benamidar was held as not proved. The first Appellate Court directed that the land in dispute be placed in actual possession of Defendant No. 1 Tarabai from whom the possession was obtained by the plaintiffs after the judgment of the trial Court. 7. This appeal was listed for hearing several times. The names of the learned counsel for the appellants appeared in the cause-list for the hearing of this appeal. None of the counsel for the appellants appeared on 26-6-2001. The learned counsel for the respondents was heard. One of the counsel for the appellants was Ku. Anjali Banerjee, Advocate. She was asked to argue this appeal but she expressed that her senior will argue. He was awaited for about a month but he did not come for argument. Therefore, this Court has to decide this appeal on merits as it is a very old appeal. 8. Question No. 1: The first Appellate Court has appreciated the evidence on record in view of the principles laid down by the Supreme Court in Jaydayal Poddar v. Bibi Hazra, AIR 1974 SC 171 . It has been laid down in this case 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. It has been laid down in this case 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 would either directly prove the fact of Benami or establish circumstances unerringly and reasonably raising an interference 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 or 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 the fact, and for determining this question no absolute formulae or acid test, uniformly 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 colour; (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. 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. 9. Balchand (P.W. 1) is husband of Gulabbai. He has deposed that he was told by Kundanlal in the year 1950 that he had purchased the suit land in the year 1937 in the name of his daughter Tarabai. This witness was not present at the time sale transaction of the year 1937 took place and, therefore, he has no direct knowledge regarding the source from which the amount of Rs. This witness was not present at the time sale transaction of the year 1937 took place and, therefore, he has no direct knowledge regarding the source from which the amount of Rs. 200/- was paid. Lakhanlal (P.W. 10) was examined by the plaintiffs on this point. He was Muneem in the shop of Kundanlal. Now he is employed by the plaintiffs. According to this witness, the sale-deed was in the name of Kundanlal himself. His daughter Tarabai was living with him. On 6-4-1977 when this witness was examined he did not tell from where the amount of Rs. 200/- was paid and an adjournment was taken by the plaintiffs on that date. This witness was again examined on 2-9-1977. Then this witness stated that the land was purchased in the name of Tarabai and the amount of consideration was paid from the cash balance of the shop. The plaintiffs or this witnesses did not produce the account books to show that consideration of Rs. 200/- was paid from the cash balance of the shop. The first Appellate Court has disbelieved this witness on the ground that his testimony is interested as he was an employee of the plaintiffs. There was no other documentary or oral evidence to show that the amount of consideration was paid by Kundanlal. The original sale-deed has neither been produced by the plaintiffs nor by the Defendants No. 1. The first Appellate Court has rightly held that Tarabai could pay the amount of Rs. 200/- from her own savings. Kundanlal had no son and, therefore, his daughter Tarabai was living with him. Mahtab Singh (D.W. 3) was the witness who was examined by Defendant No. 1 Tarabai. He has deposed that the sale-deed was scribed in his presence. The land was sold by his brother Bhaiyalal who is now dead. Therefore, the presence of Mahtab Singh (D.W. 3) at the time of sale transaction is quite natural. According to Mahtab Singh (D.W. 3). Tarabai paid the amount of Rs. 200/- as consideration. He was an attesting witness to the sale-deed. A certified copy of the sale-deed is Ex.D-10 Tarabai (D.W.1) has also deposed that she herself had paid the amount of Rs. 200/- for purchasing the land. After purchasing this land she remained in its actual possession. 10. Tarabai paid the amount of Rs. 200/- as consideration. He was an attesting witness to the sale-deed. A certified copy of the sale-deed is Ex.D-10 Tarabai (D.W.1) has also deposed that she herself had paid the amount of Rs. 200/- for purchasing the land. After purchasing this land she remained in its actual possession. 10. The conclusion of the first Appellate Court that the plaintiffs have failed to prove that the consideration money was supplied by Kundanlal cannot be said to be incorrect. After the purchase, the land was recorded in the name of Tarabai in revenue papers as a Bhumiswami. In Khasra Ex.D-9 which is of the year 1950-51 and 1952-53 the name of Tarabai is recorded as being in possession of this land. In the year 1969 Chakbandi Patta was issued in the name of Tarabai. Delivery of this Patta was taken by plaintiff Mahesh Kumar and that is borne out from the document Ex. D.-5. 11. The answer to the Question No. 1 is that the finding of the first Appellate Court that under the sale-deed dated 16-7-1937, deceased Kundanlal was not the real owner and Tarabai had become the purchaser cannot be said to be perverse. 12. Question No. 2: It had been brought to the notice of the first Appellate Court that after the judgment of the trial Court the land in dispute was placed in possession of the plaintiffs and, therefore, when the decree of the trial Court was reversed, the first Appellate Court had the power and the jurisdiction to direct restitution of possession to the Defendant No. 1. 13. The appellants submitted an application to raise two other questions for decision in this appeal. By order dated 27-6-1990 this Court had held that the additional questions of law sought to be raised by the appellants do not arise. It has been found that Tarabai was the real owner of the land in dispute and Chakbandi Patta was also issued in her name. Therefore, Gulabbai could not become the owner of this land even if the Chakbandi Patta was inadvertently issued in her name. The first Appellate Court after appreciation of the entire evidence on record came to the conclusion that the plaintiffs were not in possession of the land in dispute and it is Tarabai who was in its actual possession. Therefore, Gulabbai could not become the owner of this land even if the Chakbandi Patta was inadvertently issued in her name. The first Appellate Court after appreciation of the entire evidence on record came to the conclusion that the plaintiffs were not in possession of the land in dispute and it is Tarabai who was in its actual possession. As Tarabai was the actual owner of the land in dispute, she has rightly been held to be in possession of the land. Her name was also recorded in the Khasras. Therefore, two - additional questions which are sought to be raised do not actually arise. 14. In the result the appeal is dismissed. The appellants will bear their own cost of this appeal and will pay that of the respondents. Counsel's fee be levied as per schedule, if certified.