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Allahabad High Court · body

2001 DIGILAW 622 (ALL)

KULDEEP SHARMA v. SATYENDRA KUMAR SHARMA

2001-07-05

B.K.RATHI

body2001
B. K. RATHI, J. ( 1 ) THE Original Suit No. 41 of 1977 was filed by the respondent No. 1. against the appellants and other respondents for partition of his 1/16th share over house No. 22, Dilkusha, New Katra, Allahabad. ( 2 ) THE case of the plaintiffs can be understood properly by the following pedigree. (See pedigree on next page) ( 3 ) IT is alleged that the house in dispute was purchased by sale-deed dated 1-3-1936 from Allahabad Improvement Trust for Rs. 1200. 00 by Hanuman Prasad, grandfather of the plaintiff from his ancestral as well as own funds in the name of his wife Smt. Yashoda Devi, grandmother of the plaintiff; that Smt. Yashoda Devi was only benamidar and she had no founds of her own to purchase the house; that Smt. Yashoda Devi was under the control of his son Sheo Prasad who fraudulently got a gift-deed executed from her in his favour of the house in dispute on 5-2-1945. Smt. Yashoda Devi died some time after in the year 1945; that the appellants claim the property on the basis of the gift-deed. However, Smt. Yashoda Devi was only Benamidar and has no right to execute the gift-deed of the house; that, therefore, the plaintiff has 1/16th share in the same. ( 4 ) THE appellants only contested the case. The other defendants-respondents admitted the plaintiffs case. The appellants however did not dispute the above pedigree, but they claimed that the house in dispute was acquired by Smt. Yashoda Devi from her stridhan and she was absolute owner of the same; that it was not acquired from the ancestral funds or by the earnings of Hanuman Prasad; that Devi Prasad another son of Hanuman Prasad died in October, 1936 and his wife shifted to maika. Sheo Prasad son of Smt. Yashoda Devi was looking after her and the property was gifted by Smt. Yashoda Devi in favour of Sheo Prasad with her own free-will; that, therefore, appellants became absolute owner of the property; that the plaintiff has no share in the same. ( 5 ) IT is further pleaded that the plaintiff is residing in the house as a licensee and the suit is barred by limitation and also by the principle of estoppel and acquiescence. ( 5 ) IT is further pleaded that the plaintiff is residing in the house as a licensee and the suit is barred by limitation and also by the principle of estoppel and acquiescence. ( 6 ) THE trial Court recorded the oral as well as documentary evidence and recorded a finding that Smt. Yashoda Devi was Benamidar of the house. It was purchased by Hanuman Prasad from his own funds; that, therefore, Smt. Yashoda Devi has no right to gift the property to her son Sheo Prasad. The gift-deed is void and the plaintiff has 1/16th share in the house in dispute. The suit was, accordingly, decreed. ( 7 ) THE first appellate Court considered the evidence in detail and reaffirmed the findings and dismissed the appeal preferred by the present appellants. Aggrieved by it, the present appeal has been preferred. ( 8 ) I have heard the arguments of Sri Manoj Mishra, learned counsel for the appellants and Sri V. K. S. Chaudhary, learned counsel for the respondents in great detail and have carefully gone through the entire record. ( 9 ) BEFORE coming to the merits of the appeal, it may be mentioned that at the time of admission of this appeal no substantial question of law was framed as required by Section 100 C. P. C. Therefore, before starting arguments, the learned counsel for the appellants submitted the following substantial questions of law to be decided in this appeal. 1. Whethert the lower appellate Court was justified in raising a presumption that in India, if property is purchased by a Hindu husband in the name of his wife then unless otherwise explained it is presumed to be a benami transaction?2. Whether the trial Court was justified in drawing a presumption that beneficial interest over a property standing in the name of even a female member of a joint Hindu family vests in the family particularly in view of the decisions reported in AIR 1957 All 215 ; AIR 1969 Madras 329 and AIR 1973 Orissa page 85? 3. Whether in the absence of any evidene on the record that Hanuman Prasad had intention to create a benami transaction in the name of his wife the Courts below were justified in holding that the property in disputed acquired benami by Hanuman Prasad and that his is wife was merely a benamidar?4. 3. Whether in the absence of any evidene on the record that Hanuman Prasad had intention to create a benami transaction in the name of his wife the Courts below were justified in holding that the property in disputed acquired benami by Hanuman Prasad and that his is wife was merely a benamidar?4. Whether the finding of the Courts below that at the time of purchase of the disputed property by Hanuman Prasad in the name of the wife there was family dispute between him and his brother is based on conjectures and surmises?5. Whether the inference drawn by the Courts below from the letters namely, exhibits 3, 4, 5, 6, 9 and 11 that there must have been some dispute between the brothers Hanuman Prasad and Kashi Prasad at the time of execution of the sale deed dated 1-3-1936 and that the benami transaction was entered to thwart any claim from Kashi Prasad or the heirs of Devi Prasad (son of Hanuman Prasad) purely conjectural inasmuch as those letters were of much later date than the sale deed and moreso, as per the evidence on record Devi Prasad was alive at the time of execution of sale deed therefore, the existence of his heirs at that time did not arise?6. Whether on the evidence on record, any reasonable person could have come to a conclusion that the disputed property was acquired by Hanuman Prasad benami, and that his wife was merely benamidar. Or in other words the finding of the Courts below that Smt. Yashoda Devi was merely a benamidar is perverse?7. Whether the finding of the Courts below that the property in dispute was the property of a joint Hindu family and acquired by Hanuman Prasad as Karta and head of the joint Hindu family consisting of his wife, two sons and their children, is unsustain-able in view of the finding of the Appellate Court that there was no ancestral nucleus in the hands of Hanuman Prasad at the time of acquiring the property in dispute?8. Whether the statement made by Smt. Yashoda Devi in the gift deed dated 5-2-1945 about the exclusive ownership of the property in dispute admissible under Section 13 of the Evidence Act read with Section 32 (7) (3) and also under Section 8 of the Evidence Act as being her conduct in respect of the property in dispute and that the lower Appellate Court committed error of law in discarding the same?9. Whether in the absence of any direct testimony the Courts below was justified in holding that the purchase of disputed property was funded by Hanuman Prasad only on the circumstance that near about the date of purchase of the property in dispute Hanuman Prasad had withdrawn certain funds from his Provident Fund Account, especially when there was no cogent evidence on the record to establish that Smt. Yashoda Devi had no resources of her own and more particularly when in the gift deed Smt. Yashoda Devi had disclosed that the said property was acquired by her from her own funds? ( 10 ) I have considered the above substantial questions of law, they are regarding the presumptions and appreciation of evidence. However, from the pleading of the parties, only two issues are involved in this case. 1. Whether the property was acquired benami by Hanuman Prasad from his own funds/joint family funds in the name of his wife as a consequence of which his wife was only a benamidar?2. Whether the gift deed dated 5-2-1945 is void? ( 11 ) IN fact, only issue No. 1 arises for decision in this appeal. In case, it is decided against the appellants the answer to question No. 2 will follow and the gift deed would be void. ( 12 ) IN this case, it is admitted that Hanuman Prasad has two sons. One of them Devi Prasad died in October, 1937. Hanuman Prasad himself also died in the year, 1937. Learned counsel for the appellants has taken me through the entire oral and documentary evidence adduced by the parties. It is established law that the evidence cannot be analysed in second appeal and it should be decided only on the substantial questions involved in the case. However, it is contended that there is no evidene to show that Smt. Yashoda Devi was a benamidar and the findings of Courts below are without any evidence. It is established law that the evidence cannot be analysed in second appeal and it should be decided only on the substantial questions involved in the case. However, it is contended that there is no evidene to show that Smt. Yashoda Devi was a benamidar and the findings of Courts below are without any evidence. It is also contended in paragraph 2 of the plaint that the property was purchased by Hanuman Prasad in the name of his wife for her happiness (Diljohi), which itself shows that she was not benamidar. However, in my opinion the word diljohi means to please. ( 13 ) I briefly consider the evidence of the parties in view of the arguments of the learned counsel that there is no evidence of benami transaction. The plaintiff in this case examined as many as five witnesses. P. W. 1 is the plaintiff himself, who has stated regarding entire facts. It is contended that he was born in the year 1941 i. e. much after the transaction. Therefore his statement is not relevant to show the benami nature of the transaction. P. W. Kalyan Singh has stated that Hanuman Prasad was compounder in the University dispensary where he used to meet Hanuman Prasad; that Hanuman Prasad told him that he wants to purchase the house in the name of his wife for which some money has been saved by him. It is contended that his evidence is not of a definite character and can also not be accepted to prove benami nature of transaction; that he was not knowing anything regarding the family of Hanuman Prasad and used to meet casually with Hanuman Prasad in the University dispensary; that, therefore, there was no occasion for Hanuman Prasad to disclose any fact to him, P. W. 3 is Sri S. K. Sharma, real brother of the plaintiff. It is contended that his statement was not relied by the Courts below, therefore, need not be considered. PW. 4 is Sangam Lal who claims himself to be neighbour of Hanuman Prasad. He stated that Yashoda Devi had no earning. She came from a poor family and she had no income of her own; that Hanuman Prasad himself buit the house and was making payments in that connection. It is contended that he does not know the other relations of Hanuman Prasad and other family members. He stated that Yashoda Devi had no earning. She came from a poor family and she had no income of her own; that Hanuman Prasad himself buit the house and was making payments in that connection. It is contended that he does not know the other relations of Hanuman Prasad and other family members. He also does not know as to where is the maika of Smt. Yashoda Devi and what her father had been doing; that, therefore, he is a cooked up witness and no reliance can be placed. The last witness is Sri P. C. Jaiswal, P. W. 5. He is an office Assistant of the Allahabad University where Hanuman Prasad was employed as compounder. He stated that Hanuman Prasad withdrew Rs. 1016. 00, Rs. 135. 00 and Rs. 15. 00 respectively on 17-11-35, 25-9-35 and 25-1-36 from his Provident Fund Account. However, he has no personal knowledge regarding any other family affairs of Hanuman Prasad. ( 14 ) APART from this, documentary evidence has also been filed by the plaintiff. Exhibit A-4 is the sale deed dated 1-3-1936 and Exhibit A-2 is the gift deed dated 5-2-1945. Certain letters have also been filed which are Exhibits 3 to 6, 9 and 11. It is contended that all these letters were written after the deed of purchase of the disputed property i. e. 1-3-1936; that, therefore, those letters do not show that the property was purchased by Hanuman Prasad so that his brother Kashi Prasad may have no share in the same. ( 15 ) AFTER scrutinising the evidence, it has been contended that there is no evidence of the plaintiff to show that the sale deed in favour of Smt. Yashoda Devi was a benami transaction. ( 16 ) AS against this, it is contended that the appellants evidence is of much reliance. They examined Shiv Prasad as D. W. 1 who is aged about 75 years. He stated that the house was not benami and was purchased by his mother; that his father suffered from paralysis and was ill since three years before his death and the entire amount earned by him was spent on his treatment; that he was getting Rs. 50. 00 per month as salary; that Smt. Yashoda Devi was exclusive owner of the house and she executed a gift deed in his favour with her own free-will. 50. 00 per month as salary; that Smt. Yashoda Devi was exclusive owner of the house and she executed a gift deed in his favour with her own free-will. D. W. 2 Niranjan Pratap Singh is a witness of the gift deed in favour of Sheo Prasad and has only proved the same. D. W. 3 A. C. Gilbert is an Assistant in Allahabad University and he joined the service in 1931. He was knowing Hanuman Prasad as he was working in the University and stated that Hanuman Prasad suffered an attack of paralysis in the year, 1933. Thereafter, he did not join the service; that the house was in fact constructed by Sheo Prasad. D. W. 4 Desh Deepak Sharma is son of Sheo Prasad and proved the letters. It is contended that the defendants have, therefore, adduced the evidence to show that Smt. Yashoda Devi was the real owner of the house and she willingly executed the gift deed. It is further contended that recitals in the gift deed are admissible in evidence under Section 32 (3) (7) read with Section 13 of the Evidence Act; that in the gift deed, it is mentioned that the property was purchased by Smt. Yashoda Devi from her own funds and the house was also constructed by her from her own funds; that her husband Hanuman Prasad was a compounder in the dispensary of Allahabad University and suffered an attack of paralysis in the year 1934; that Hanuman Prasad also received Rs. 1200. 00 from the University by way of G. P. F. but this amount was spent on his treatment; that Shiv Prasad alone looked after her (Smt. Yashoda Devi) and, therefore, she executed gift deed. It is contended that the recital of this gift deed, therefore, also shows that the transaction was a benami one. ( 17 ) LEARNED counsel for the appellants has also referred to certain cases regarding the onus of proof regarding benami nature of the transaction and also regarding presumption of the deeds in the name of the wife. ( 18 ) THE first case referred to is Jaydal Poddar v. Mst. ( 17 ) LEARNED counsel for the appellants has also referred to certain cases regarding the onus of proof regarding benami nature of the transaction and also regarding presumption of the deeds in the name of the wife. ( 18 ) THE first case referred to is Jaydal Poddar v. Mst. Bibi Hazra, AIR 1974 SC 171 , it was observed "it is well settled that the burden of proving that the 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 inference of that fact. The essence of 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 of any part of the serious onus that rests on him; nor justify the acceptance of mere conjecture or surmises as a substitute for proof. Though the question, whether a particular sale is benami or not, is largely one of 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 the 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 banamidar; (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". ( 19 ) THE other case referred to is Gapadibai v. State of Madhya Pradesh, (1980) 2 SCC 327 : ( AIR 1980 SC 1040 ). ( 19 ) THE other case referred to is Gapadibai v. State of Madhya Pradesh, (1980) 2 SCC 327 : ( AIR 1980 SC 1040 ). It was held that "in order to prove the benami nature of a transaction, evidence has to be led to show; (1) that the purchaser paid the consideration; (2) that he had the custody of the sale deed, (3) that he was in possession of the property and (4) the motive for the transaction. In this case the Honble Supreme Court laid much emphasis upon the fact and held that since the party challenging the transaction as Benami had not led any evidence whatsoever to show as to whether there was any such intention of the party concerned to create a benami transaction or not therefore, the benami nature of the transaction could not be established". ( 20 ) THE other case referred to is Smt. Sunder Devi v. Jhaboo Lal, AIR 1957 Allahabad 215. In this case this Court has held that there is no presumption that the property owned or held by a woman necessarily belongs to her husband or that the funds for the acquisition of such property had been supplied to her by her husband or by somebody else. Reference has also been made to Budhia Mandal v. Raghu Mandal, AIR 1973 Orissa 85 and Nagayasami Naidu v. Kochadai Naidu, AIR 1969 Madras 329 wherein it has been held that even if ancestral nucleus is shown to be in existence it cannot be presumed that the property belongs to the joint family. ( 21 ) THE other case referred to is Kanakarathanammal v. Loganath Mudaliar, AIR 1965 SC 271 . It was observed that "it is true that the actual management of the property was done by the appellants father; but that would inevitably be so having regard to the fact that in ordinary Hindu families, the property belonging exclusively to a female member would also be normally managed by the manager of the family; so that the fact that the appellants mother did not take actual part in the management of the property would not materially affect the appellants case that the property belongs to her mother. The rent was paid by the tenants and accepted by the appellants father; but that, again would be consistent with what ordinarily happens in such matters in an undivided Hindu family. The rent was paid by the tenants and accepted by the appellants father; but that, again would be consistent with what ordinarily happens in such matters in an undivided Hindu family. If the property belongs to the wife and the husband manages the property on behalf, it would be idle to contend that the management by the husband of the properties is inconsistent with the title of his wife of the said properties. What we have said about the management of the properties would be equally true about the actual possession of the properties, because even if the wife is the owner of the properties, possession may continue with the husband as a matter of convenience". ( 22 ) ON the basis of the above cases, it has been argued that onus is extremely heavy to prove that the transaction is benami on the person who alleges it to be so; that there is no presumption that the property standing in the name of the wife is either benami or of joint Hindu family; that,therefore,the findings of both the Courts below are against the weight of the evidence. ( 23 ) LEARNED counsel for the appellants has also taken me through the judgment of the Courts below and the reasonings recorded by the Courts below. It is contended that the correct reasonings in the light of the above decisions have not been mentioned. ( 24 ) IT is also contended that no doubt, it is second appeal and the findings of the Courts below are concurrent. However, the findings can be interfered with if there is gross error of law or the finding is based without evidence. Learned counsel in support of his argument has referred to the decision of State of Rajasthan v. Harphool Singh (Dead) through his LRs, (2000) 5 SCC 652 . It was observed that "the first Appellate Court as well as the High Court ought to have seen that perverse findings not based upon legally acceptable evidence and which are patently contrary to law declared by this Court cannot have any immunity from interference in the hands of the appellate authority. The trial Court has jumped to certain conclusions virtually on no evidence whatsoever in this connection. The trial Court has jumped to certain conclusions virtually on no evidence whatsoever in this connection. Such lackadaisical findings based upon mere surmises and conjectures, if allowed to be mechanically approved by the first Appellate Court and the second Appellate Court also withdraws itself into recluse apparently taking umbrage under Section 100 CPC, the inevitable casualty is justice and approval of such rank injustice would only result in gross miscarriage of justice". ( 25 ) THE other case referred to is Krishnanand Agnihotri v. State of Madhya Pradesh, AIR 1977 SC 796 . However, this was regarding criminal matter in which the principle of burden of proof is different from the civil matters. ( 26 ) THE other case referred to is Hira Lal v. Gajjan, AIR 1990 SC 723 . It was observed that "so also in a case where the Court below ignored the weight of evidence and allowed the judgment to be influenced by inconsequential matters, the High Court would be justified in reappreciating the evidence and coming to its own independant decision as held in Madan Lal v. Gopi, AIR 1980 SC 1754 ". ( 27 ) AS against this, the argument of the learned counsel for the respondents is that the findings of both the Courts below are based on the appreciation of evidence; that evidence is to be scrutinised in the circumstances of the case and law has to be applied to the facts. It is argued that while scrutinising the evidence the Court should see whether the best possible evidence available regarding the transaction has been adduced by the parties or not; that the sale deed is of the year 1936 and, therefore, it was not possible for the plaintiff to produce direct evidence regarding the transaction. The best evidence has been produced by the plaintiff; that the evidence is to be considered in the light of the fact that the transaction took place in the year 1936 and the evidence is being led after about half a century. The best evidence has been produced by the plaintiff; that the evidence is to be considered in the light of the fact that the transaction took place in the year 1936 and the evidence is being led after about half a century. It is also contended that both the Courts below have properly scrutinised the evidence; that in the case of Jaydal Podddar (supra) the Apex Court has laid down six circumstances to find the nature of transaction and all the six circumstances have been discussed by the Appellate Court in detail in his judgment and recorded the finding in favour of the respondents; that, therefore, in view of the decisions of Apex Court in the case of Arumugham v. Sundarambal (1999) 4 SCC 350 : ( AIR 1999 SC 2216 ) the High Court should not interfere in the second appeal on the ground that the first Appellate Court failed to advert the reasons given by the trial Court. ( 28 ) THE learned counsel for respondents has referred to Satya Gupta (Smt.) alias Madhu Gupta v. Brijesh Kumar, (1998) 6 SCC 423 . The following observation of the Apex Court is material :"at the outset, we would like to point out that the findings on facts by the lower Appellate Court as a final Court of facts,are based on appreciation of evidence and the same cannot be treated as perverse or based on no evidence. That being the position, we are of the view that the High Court, after reappreciating the evidence and without finding that the conclusions reached by the lower Appellate Court were not based on the evidence, reversed the conclusions on facts on the ground that the view taken by it was also a possible view on the facts. The High Court, it is well settled, while exercising jurisdiction under Section 100 C. P. C. , cannot reverse the findings of the lower Appellate Court on facts merely on the ground that on the facts found by the lower Appellate Court another view was possible. " ( 29 ) I have considered the arguments and carefully gone through the case law referred to by the learned counsel for the parties. There is no dispute regarding principle that the onus of proof heavily lies on the person who alleged a benami transaction to prove it. " ( 29 ) I have considered the arguments and carefully gone through the case law referred to by the learned counsel for the parties. There is no dispute regarding principle that the onus of proof heavily lies on the person who alleged a benami transaction to prove it. However, the evidence is not to be scrutinised in the manner in which it has been argued by the learned counsel for the appellants as the transaction is of the year 1936 and no direct evidence is expected. The conclusion is to be arrived on the basis of the circumstance. The recital of the gift deed of the year 1945 in favour of Sheo Prasad, even if taken to be admissible, does not have much evidentiary value. The executant of the document is required to disclose the title of the property, but if there is dispute, the title is to be decided on the basis of other evidence and not on the basis of the recitals in the deed itself. Therefore, the Courts below rightly rejected the contents of the gift deed. Learned counsel for the appellants cannot take shelter of the recitals of the gift deed of the year, 1945 to argue that Smt. Yashoda Devi was the owner of the property as mentioned in the same. ( 30 ) THE following are the important circumstances of the case to decide the nature of the transaction. 1. There is no evidence that Smt. Yashoda Devi had any independent income or had Stridhan. 2. The appellants have adduced evidence to show that Hanuman Prasad suffered an attack of paralysis in the year 1933 and, therefore, he did not join the service. However, no document regarding the treatment has been filed. On the other hand, the plaintiff produced evidence to show that Hanuman Prasad was working as compounder in the dispensary of Allahabad University and he withdrew Rs. 1016. 00, Rs. 135. 00 and Rs. 15. 00 on 17-11-35, 25-9-35 and 25-1-36 respectively from his Provident Fund Account. It is very important that it was not suggested to Sri P. C. Jaiswal, P. W. 5 who is an office Assistant in the Allahabad University that at that time Sri Hanuman Prasad was suffering from paralysis. 1016. 00, Rs. 135. 00 and Rs. 15. 00 on 17-11-35, 25-9-35 and 25-1-36 respectively from his Provident Fund Account. It is very important that it was not suggested to Sri P. C. Jaiswal, P. W. 5 who is an office Assistant in the Allahabad University that at that time Sri Hanuman Prasad was suffering from paralysis. He was not interrogated on the point that Hanuman Prasad was suffering from paralysis, then in what manner this amount was withdrawn from the University and who withdrew the amount on his behalf. It was also not suggested to him that Hanuman Prasad did not join the duties after 1933 when he was alleged to have suffered attack of paralysis. There may be some little ailment to Hanuman Prasad but it does not show that the amount was withdrawn for the treatment. The sale deed is of 1-3-1976 and is for Rs. 1200. 00 for which the money was withdrawn from the Provident Fund to pay the sale consideration to Allahabad Improvement Trust. 3. In case, the validity of the gift deed dated 5-2-1945 is accepted,the plaintiff is not left with any interest in the property. However, he was never asked to vacate the premises and continued in its possession till the suit for partition was filed. His possession is admitted though it is alleged that he is in possession as a licensee. However, it is important to mention that no steps for eviction of the plaintiff were ever taken. 4. It is true that the letters were of the much later period and the sale deed is of the year 1936 and, therefore, they do not show any motive for the sale deed being executed in favour of Smt. Yashoda Devi. However, there can always be an apprehension in the mind of the purchaser, even if there is no dispute, that the other brothers may also claim the share in the property alleging it to be a joint Hindu family. Therefore, usually, it is considered safe to purchase the property in the name of female member as benami. The argument that the letters are of the later period prior to 1936 is of no relevance. Even if, there was no dispute, there can be an apprehension of dispute and claim to the property in future. Therefore, usually, it is considered safe to purchase the property in the name of female member as benami. The argument that the letters are of the later period prior to 1936 is of no relevance. Even if, there was no dispute, there can be an apprehension of dispute and claim to the property in future. ( 31 ) ALL these circumstances are very material and coupled with the evidence, as discussed above, show that there is no reason to interfere in the concurrent findings of the Courts below that the sale deed in favour of Smt. Yashoda Devi was a benami transaction. ( 32 ) NINE substantial questions of law were raised by the learned counsel for the appellants in this appeal. I have already mentioned those questions of law. It is not necessary to record a separate findings on each of them, as most of them are regarding facts. I have already discussed the entire evidence and the arguments advanced before me and am of the view that the courts below were right in raising the presumption that in India if property is purchased by a Hindu husband in the name of his wife, it is to be presumed to be a benami transaction unless otherwise is shown. Even if, this presumption is not taken to be true, the evidence shows that the property was benami in the name of Smt. Yashoda Devi and there is no reason to reverse the findings. ( 33 ) THE reply of the substantial questions raised is that the question Nos. 1, 2 and 3 are answered in affirmative. Question Nos. 4 and 5 are answered in the negative. Question No. 6 is answered in affirmative. Question No. 7 is answered in affirmative. Question No. 8 in answered in affirmative that the recitals in the gift deed are admissible but have very little evidentiary value and the first Appellate Court has rightly discarded the same. Question No. 9 is answered in affirmative. ( 34 ) THEREFORE, after considering the entire arguments, case law referred to by the learned counsel for the parties and the evidence on record, I have no reason to interfere in the concurrent findings of both the Courts below. The appeal is without merits and is, hereby, dismissed with costs.