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2007 DIGILAW 223 (CHH)

DIPIKA v. HALALKHORIN

2007-03-21

D.R.DESHMUKH

body2007
ORDER 1. Matter was finally heard. 2. The defendants/appellants are aggrieved by the judgment and decree dated 5.9.1998 delivered by Additional District Judge, Kanker in C.S. No. 16-A/1996 whereby the plaintiffs/respondents' suit for declaration of title on the basis of a registered sale deed executed by Banshi Das, Dhurra Das and Babu Das on 5.2.1971 in favour of the plaintiff and for a declaration that the sale deed executed by Banshi Das, Dhurra Das and Babu Das in favour of defendant No.4 of a part of the same land on 8.4. 1996 is void and also for a permanent injunction to restrain the defendants No.1,2 and 4 from interfering with the possession of the plaintiff over the suit land, was decreed in favour of the plaintiff. 3. Shri Vishnu Koshta, learned counsel for the appellants/defendants did not dispute that defendants Banshi Das, Dhurra Das and Babu Das had executed the sale deed on 5.2.1971 of the suit lands in the name of plaintiff Milapram. It is also not in dispute that Ganesh, father of Milap was put in possession of the suit land in 1971 as admitted by Banshi Das D. W.- 1 in para 1. The only point urged by the learned counsel for the appellant in this appeal is that at the time of execution of Sale deed dated 5.2.1971, the purchaser plaintiff Milap was aged 3 to 4 years and therefore, the sale deed executed in favour of minor was void. 4. On the other hand Shri N.K. Agrawal, learned Senior Advocate appearing on behalf of the respondents as also Shri Akhil Agrawal, Panel Lawyer for the State though not disputing that on the date of sale Milap was a minor aged 3-4 years urged that the plaintiff had specifically pleaded that Ganesh, father of the plaintiff had purchased the suit lands on 5.2.1971 in the name of minor plaintiff and execution of the sale deed at the behest of the father of the plaintiff was also not disputed by the defendants in the written statement. In this view of the matter, the transaction was at the most a Benami transaction and could not be held to be void. 5. Having heard the rival contentions, I have perused the record. In this view of the matter, the transaction was at the most a Benami transaction and could not be held to be void. 5. Having heard the rival contentions, I have perused the record. The Ad9itionai District Judge, Kanker has recorded a finding that the sale deed executed on 5.2.1971 conferred valid title over the suit lands to Milan in whose name Ganesh, father of the plaintiff had purchased the suit land In para 1 of the plaint, the plaintiff had specifically pleaded that Ganesh, father of the plaintiff had purchased the suit land from the defendants No.1 and 2 in the name of the plaintiff who was a minor at that time. This also finds support from para 1 of the written statement and the testimony of the plaintiff in cross-examination para 2. Prabhuram (PW/2) testified that consideration of the sale transaction was paid by Ganeshram. There is overwhelming documentary evidence on record to show that the suit land was recorded from 1971 in the name of Milap. 6. A benami transaction is of two types. First where a person buys a property with his own money but in the name of another person without any intention to benefit such other person, the transaction is called benami. In that case, the transferee holds the property for the benefit of the person who has contributed the purchase money, and he is the real owner. The second case which is loosely termed as a benami transaction is a case where a person who is the owner of the property executes a conveyance in favour of another without the intention of transferring the title to the property there under. As held in Thakur Bhim Singh (Dead) by L.Rs. and another Vs. Thakur Kan Singh And Thakur Kan Singh Vs. Thakur Bhim Singh (Dead) by L.Rs. and another by the Apex Court that the true character of the transaction is governed by the intention of the person who has contributed the purchase money arid the question as to what intention was has to be decided on the basis of the surrounding circumstances the relationship of the parties, the motives governing their action in bringing about the transaction and their subsequent conduct etc. 7. 7. In the present case Ganesh entered into contract with the Vendors for purchasing the suit lands in the name of his minor son, contributed the purchase money with the intention that his son Milap should become the owner. In a sale deed the purchaser is not required to sign. Therefore, although in the sale deed the name of the purchaser ought to have been mentioned as “Milap minor through Guardian Ganesh' yet in the facts and surrounding circumstances and the intention, with which the suit lands were purchased by Ganesh and the fact that the suit lands were recorded In the name of Ganesh in revenue papers right from the year .1971 the transaction cannot be called a Benami Transaction. 8. If is thus established that Ganesh; father of the plaintiff had during minority of Milap paid the consideration out of his own money and purchased the suit land in the name of his son Milap; a minor from Banshi Das, Dhurra Das and Babu Das vide registered Sale Deed dated 5.2.1971 the execution of which is not in dispute in this appeal with the sole intention of constituting Milap, his minor son as the sole owner of the land In this view of the, matter, the privity of contract was between Ganesh and the vendors and not with Milap though he Was shown as the, beneficiary in the sale deed. Therefore, the transaction dated 5.2.1971 cannot be held to be a void transaction only on the ground that Milap was a minor on the date of sale. In this view of the matter, the sole argument advanced by the learned counsel for the appellants fails. The learned Additional District Judge, Kanker thus rightly decreed the suit in favour of the plaintiff. The appeal has no substance and being devoid of merit is dismissed: . No order as to costs. Appeal Rejected.