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2019 DIGILAW 2326 (RAJ)

Shankar Lal v. Shanta Kumari

2019-08-29

SANJEEV PRAKASH SHARMA

body2019
JUDGMENT : Sanjeev Prakash Sharma, J. 1. This is an appeal against the judgment and decree dated 09.05.1990 passed by Additional District and Sessions Judge, Rajsamand, whereby the suit preferred by plaintiff/respondent-Shanta Kumari was decreed in her favour for possession and mesne profits relating to plot No. 6A situated in Jawahar Market, Amet, Rajsamand. 2. Plaintiff-Smt. Shanta Kumari filed the suit on 01.08.1985 against the defendants for possession of suit plot and for mesne profits. The plaintiff's case in brief was that she owned a plot bearing No. 6A in the town of Amet in Jawahar Market. She used to live at Bombay with her husband, Vardhi Chand (defendant No. 2). The defendant No. 1, who is the elder brother of her husband, about a year before filing of the suit kept his stones on the plot in question but she did not object. She wanted to raise construction on the plot and therefore, she asked the defendant No. 1 to remove his stones from the plot in question. She also gave a registered notice to the defendant No. 1. The defendant No. 1 did not remove his stones and instead replied that according to the Panch Award dated 29.03.1980 it was decided that Vardhi Chand (defendant No. 2) would pay Rs. 32,000/- to the appellant by Ashad Sud Punam Samvat Year 2037 but as the amount was not paid by the husband of the plaintiff (defendant No. 2) he sold the plot in question to him (appellant) for the said amount and the appellant was in possession of the plot in question as owner. The plaintiff alleged that the above reply of the defendant No. 1 was false and therefore she filed the aforementioned suit for possession of the plot in question and mesne profits at the rate of Rs. 100/- per month. 3. The defendant No. 2, the husband of the plaintiff, remained absent inspite of service and order for taking ex parte proceedings against him was made. 4. The defendant No. 1 filed his written statement and denied the averments of the plaintiff. 100/- per month. 3. The defendant No. 2, the husband of the plaintiff, remained absent inspite of service and order for taking ex parte proceedings against him was made. 4. The defendant No. 1 filed his written statement and denied the averments of the plaintiff. He submitted inter alia that they were all five brothers out of whom Sarva Shri Bhanwar Lal and Khayali Lal separated earlier while the remaining three i.e. the defendant No. 1 (appellant), the defendant No. 2 (husband of the plaintiff) and Shri Roshan Lal remained joint and their joint business was carried at Bombay in the name and style of 'Mukesh Jewellers'. He further stated that on account of differences they appointed arbitrators who gave their award dated 29.03.1980 and separated them. The plot in question, he stated was of the ownership of one Shri Laxmi Lal Gelada and on which he (defendant No. 1) was carrying on business of stones. He further stated that the defendants No. 1, 2 and Shri Roshan Lal jointly purchased the plot in question from said Shri Laxmi Lal Gelada in the name of the plaintiff as she was the wife of the defendant No. 2 and the entire consideration was paid to the said seller by him after borrowing the amount from one Kundan Mal Mehta, which was later on repaid, out of the funds of the joint shop at Bombay. The defendant further averred that the arbitrators vide their award allotted the Bombay shop with all business and len den and the plot in question to the defendant No. 2 and directed him (defendant No. 2) to pay Rs. 32,000/- to the defendant No. 1 and Rs. 43,000/- to Shri Roshan Lal. The defendant No. 1 then alleged that the defendant No. 2 did not make the aforementioned payments and he therefore did not return the plot to him (defendant No. 2). The defendant No. 2 also later on told him (defendant No. 1) that he did not need the plot and the defendant No. 1 should keep it for Rs. 32,000/-. The defendant No. 1 was thus the owner of the plot in question. The defendant No. 1 also submitted that the plaintiff had not even disclosed as to when and from whom and for what amount she had purchased the plot and she had not also disclosed the length of her alleged possession on it. 32,000/-. The defendant No. 1 was thus the owner of the plot in question. The defendant No. 1 also submitted that the plaintiff had not even disclosed as to when and from whom and for what amount she had purchased the plot and she had not also disclosed the length of her alleged possession on it. The defendant No. 1 also averred that she had never been in possession of the plot and even the boundaries of the plot were not correctly mentioned in the plaint and she did not know anything about it. The defendant No. 1 therefore prayed that the plaintiff's suit be dismissed with costs. 5. The plaintiff filed replication. 6. On the basis of such pleadings, the trial court framed nine issues. Issue No. 1 was whether the sale of the plot in dispute in the name of the plaintiff is benami. Issue No. 2 was whether all the three brothers jointly purchased the plot from Laxmi Lal Gelada and paid from joint shop Mukesh Jewellers at Bombay, which belonged to all the three brothers. Issue No. 3 was whether the plot in dispute came in the share of defendant No. 2 Vardichand on the basis of the decision of the panches and because defendant No. 2 Vardichand failed to make payment to defendant No. 1, the amount fixed by the panches decision, he offered to hand over the plot in lieu of the amount to the defendant No. 1 and thereafter, defendant No. 1 has become the owner of the said plot. Issue No. 4 was whether the plaintiff has possession of the disputed plot and the defendant No. 1 has put stones on the plot and inspite of request has not removed the said stones. Issue No. 5 was whether the plaintiff is entitled to receive Rs. 100/- per month as mesne profits from defendant No. 1. Issue No. 6 was whether the value of the plot is worth Rs. 1,00,000/-, and therefore, the court fees is less. Issue No. 7 was whether the defendant No. 1 is entitled to special compensation from the plaintiff. Issue No. 8 was whether Lalit Kumar is a necessary party. Issue No. 9 - Relief. 7. The trial court decided issue No. 6 on 05.08.1988 about valuation and court fee against the defendant No. 1 and thereafter proceeded to record the evidence of the parties. Issue No. 8 was whether Lalit Kumar is a necessary party. Issue No. 9 - Relief. 7. The trial court decided issue No. 6 on 05.08.1988 about valuation and court fee against the defendant No. 1 and thereafter proceeded to record the evidence of the parties. The plaintiff examined herself and one Shri Rod Singh. The defendant No. 1 produced seven persons including himself, the seller (Laxmi Lal) and the arbitrator (Fateh Lal). 8. The trial court after hearing the parties decreed the suit vide judgment dated 09.05.1990. It decided all the issues in favour of the plaintiff and against the defendant No. 1. It held under Issue No. 1 that the defendant No. 1 has failed to prove that the plaintiff was only a benamidar of the suit plot. The trial court decided issue No. 2 against the defendant No. 1 and in favour of the plaintiff by holding that the defendant No. 1 has failed to prove that he and his two brothers (defendant No. 2 and Shri Roshan Lal) purchased the suit plot jointly out of the funds of joint family shop. The trial court also decided issue no. 3 against the defendant No. 1 and in favour of the plaintiff by holding that as the plaintiff was the owner of the suit plot her husband (defendant No. 2) had no right to get it partitioned by the arbitrators. It has further held that the award Exhibit A-2 pertaining to the plot in question was not admissible in evidence and no oral evidence about its partition could be looked into. Issue No. 4 was decided in favour of the plaintiff and against the defendant No. 1 though it has held that the plaintiff failed to prove her allegation that the defendant No. 1 has made possession on it only a year before filing of the suit. Under issue No. 5, the trial court has awarded mesne profits to the plaintiff @ Rs. 50/- per month, though it has held that the plaintiff has not examined any witness to prove the issue regarding mesne profits. Under issue No. 7, the trial court has held that the suit of the plaintiff deserved to be decreed and therefore, the defendant No. 1 was not entitled to any special cost. 50/- per month, though it has held that the plaintiff has not examined any witness to prove the issue regarding mesne profits. Under issue No. 7, the trial court has held that the suit of the plaintiff deserved to be decreed and therefore, the defendant No. 1 was not entitled to any special cost. The trial court held under issue No. 8 that Lalit Kumar was not a necessary party and decided the said issue against the defendant No. 1. Under issue No. 9 the trial court has decreed the suit for possession and mesne profits from 01.08.1985 @ Rs. 50/- per month. 9. Learned counsel appearing for the appellant/defendant submits that the appellant had specifically given out that the plot was purchased from one Laxmi Lal Gelada by him after borrowing the amount from one Kundanlal Mehta. The borrowed amount was repaid to Kundanlal Mehta in Bombay from the joint Firm Mukesh Jewellers by Vardichand. It was submitted that the appellant and his brother Vardichand husband of the plaintiff-Shanta Kumari, and Roshanlal were three brothers, who submitted themselves before five panches for dividing their properties, and it was decided that the defendant No. 2-Vardichand shall give Rs. 32,000/- to the appellant and Rs. 43,000/- to Roshanlal and in view of the panch decision dated 29.03.1980 Exhibit A-2 and in lieu of the said amount of Rs. 32,000/-, Vardichand had handed over the property in question in lieu of the said amount, which he could not pay. As the appellant/defendant was already having the possession of the property, the appellant continue to remain in possession. Learned counsel further submits that the trial court has fallen in error in holding that the appellant was having possession for only certain period and not for several years. Learned counsel submits that so far as Shanta Kumari is concerned, she has not able to prove her ownership on the plot and she was merely a benami person in whose name all the three brothers had purchased the said plot and got it registered in her name. The money was provided by the appellant and other members, and therefore, a common property had come to him in partition as per the panches order dated 29.03.1980. Moreover, the plaintiff has not stated as to on which date she was in possession of the plot and as on what date, the appellant took possession and dispossessed her. The money was provided by the appellant and other members, and therefore, a common property had come to him in partition as per the panches order dated 29.03.1980. Moreover, the plaintiff has not stated as to on which date she was in possession of the plot and as on what date, the appellant took possession and dispossessed her. 10. Learned counsel appearing for the plaintiff/respondent has however objected to the submissions and supported the judgment and decree dated 09.05.1990 and submits that ample evidence was produced before the court to show that the property was sold to the plaintiff by a sale deed for which the amount was also paid by Shanta Kumari (plaintiff). It is not necessary to show from where the amount was received for purchasing of the plot. In relation to the possession and mesne profits, the plaintiff has been able to prove her title on the plot and the sale deed was found to be duly proved. No evidence has come on record to prove the contentions as raised by the appellant. It is submitted that the appellant was handed over the possession as he was the brother-in- law (devar) of the plaintiff. 11. Heard learned counsels for the parties and perused the record. 12. As regards issues No. 1 and 2, learned counsel for the appellant/defendant submits that the plot does not belong to the plaintiff/respondent as it was purchased in joint ownership of the defendants No. 1 and 2 and Roshanlal, but the sale deed was executed in the name of wife of Vardichand as benami and the appellant was in continuous possession much prior to the execution of the sale deed, which is clear from the evidence produced by defendant No. 1. He submits that the amount was paid after taking loan from Kundan Lal Mehta in Amet and was repaid to Kundan Lal Mehta in Mumbai from the Firm Mukesh Jewellers, which was a joint Firm of the defendants and Roshanlal. He submits that the trial court while deciding issue No. 1 in favour of the plaintiff has erroneously held that there is a variance between the averments of reply to the notice, written statement and the statement of DW-1 Shankarlal. On the other hand, a careful reading would leave no manner of doubt that the joint plot was purchased out of the joint funds. On the other hand, a careful reading would leave no manner of doubt that the joint plot was purchased out of the joint funds. Learned counsel submits that no right is created in favour of the plaintiff as the sale deed was executed on 15.02.1980 and the law relating to the benami property in India has been crystallized by the Apex Court in Thakur Bhim Singh (Dead) by LRs & Anr. Vs. Thakur Kan Singh, reported in (1980) 3 SCC 72 . 13. In her plaint as well as statement, the plaintiff states that the plot No. 6A situated in Jawahar Market, Amet is in ownership and title in her name. She further states that she lives in Bombay with her husband and as the plot was lying vacant, defendant No. 1 who is brother of her husband was occupying the plot for last one year by putting stones there and because of mutual relations, she did not interfere in this regard. However, as she wanted to put construction on the plot, she requested her brother-in-law to remove the stones, but he did not do so, and therefore, she sent a registered notice on 07.06.1985 Exhibit-2 to vacate the same, to which defendant replied vide Exhibit-3 and denied her title claiming the property to have come to him in his share. The plaintiff therefore, prayed for seeking mesne profits and also for possession of the plot on which the defendant had encroached upon illegally. 14. I have considered the submissions. 15. Initially, the trial court decided issue No. 6 only that sufficient court fees has been paid. In reply, defendant No. 1 stated that there was no question of removing of the stones, as the possession of the defendant was going-on on the plot since several years and he was doing business of selling of Jodhpur stones, pattis and Chittor stone, and for last several years, he has been doing this business. Defendant also submitted that he does not know how the plot is of the plaintiff and how she has the possession on the same, and actually the plot was purchased jointly by the defendant alongwith his two brothers, and on partition, it has come in his share in lieu of sum of Rs. 32,000/-. Actually the plaintiff does not have any plot nor has any possession. 32,000/-. Actually the plaintiff does not have any plot nor has any possession. In special plea alongwith written statement, it was stated that they were five brothers and amongst them there was a partition where two brothers separated from the three, while the three brothers namely, defendant No. 1 defendant No. 2 and Roshanlal remained in the Joint Hindu Family, and thereafter, on 29.03.1980, partition took place by the decision of the panches. It was further stated that this plot and nearby property were in joint ownership of 17 persons, whereafter the said plot came in share of Laxmilal Gelada. As the defendant was already using the plot for keeping his stones and when Laxmilal Gelada thought of selling of the plot, he purchased the said plot from Laxmilal Gelada; but on the insistence of his brothers, he decided to keep the same in joint ownership and got the sale deed registered in name of his younger brother's wife as benami and the amount was arranged by taking loan from Kundan Lal Mehta and the same was returned to Kundan Lal Mehta by Mukesh Jewellers, the joint ownership shop at Mumbai. The entire proceedings were conducted by defendant No. 1 and the plaintiff was not in know of the plot and neither the plaintiff has purchased the plot nor has paid the amount for it. It is also stated that he has constructed boundary on the plot and he alongwith his son is using the same for the purpose of business. He further stated that defendant No. 2 asked for payment of the amount from Mumbai and as per the conditions of the partition since the plot was to be handed over to the defendant No. 2, the appellant started vacating the plot, but defendant No. 2 could not arrange the amount and further sought time for making the payments, and therefore, it was decided that as soon as the amount is received, the plot shall be handed over to defendant No. 2. However, by the allotted extended time as defendant No. 2 could not arrange the amount, the appellant kept the plot with himself in lieu of the amount of Rs. 32,000/-. However, by the allotted extended time as defendant No. 2 could not arrange the amount, the appellant kept the plot with himself in lieu of the amount of Rs. 32,000/-. A look at Exhibit-3 shows that a reply was given to the notice sent by the plaintiff wherein it has been stated that defendant Vardichand and Roshanlal are real brothers and they have a joint shop at Mumbai, and moveable and immovable property at Amet before the panch decision dated 29.03.1980, wherein was it was decided that the plaintiff's husband would pay Rs. 32,000/- to the appellant by Aashad Shukl 15 Samwat 2037, but her husband did not pay the amount by the said time, and in terms of brotherhood and with the consent of the plaintiff, the plot was purchased and possession was handed over to the appellant, and from then onwards the appellant was in possession of the plot and ownership, but had not got the plot registered in his favour on account of being member of the family. 16. In the statement DW-1 Shankar Lal states that in 1980 partition took place between them and the concerned plot came in his share because Vardichand was required to pay Rs. 32,000/- which he did not pay, on account whereof the plot came in his share. In the partition Mukesh Jewellers was also included, which was also partitioned. He admits that there is no written document with regard to the sale deed executed in favour of the plaintiff Shanta Kumari. He states that the amount was paid by all the three brothers together and from their common business which was paid to Kundan Lal Mehta from whom the amount was received. The amount was paid to Kundan Lal Mehta by Vardichand and Roshanlal. Thus, this Court finds that there is a strong variation of the contentions of the appellant, which has been noticed by the trial court. With regard to possession also, it is observed that in reply Exhibit-3 to the notice Exhibit-2, the appellant states that he has taken possession of the plot after the decision of the panches and after the payment could not be made by the husband of the plaintiff. While in reply and in the statement recorded before the court, a different version relating to possession has been made. While in reply and in the statement recorded before the court, a different version relating to possession has been made. Similarly with regard to the amount, at one place he states that he has himself paid the said amount, while at other place he states that the amount for the plot was paid by all the three brothers. However, there is no contention in the reply to the notice with regard to the purchase of the plot jointly by the brothers. On the other hand, in reply to the notice, it is mentioned that the plot was purchased by him in lieu of the non-payment of Rs. 32000/-. Thus, it is apparent that the plea has not been taken by the appellant that the plot was a joint property of all the three brothers. A look at the decision of the panches Ex. A-2 dated 29.03.1980 shows that all the three brothers gave the authority to the panches to divide their joint properties, and in the decision taken by the panches, there is no mention of the plot No. 6A nor there is any mention that the plot in dispute was purchased jointly by all three of them. 17. It is the contention of the appellant as set up in his written statement that the plot came in the possession of defendant No. 2 namely Vardichand, is also not reflected from the decision. It is also noticed that at one place in the statement made by Shankarlal/appellant he states that the plot came in his share. However, from a bare reading of the decision, as noted above, there is no averment with regard to the plot at all. Of course, there is a decision where Vardichand has been asked pay a sum of Rs. 32,000/- to Shankarlal and Rs. 43000/- to Roshanlal in lieu of the shop at Bombay. There is no document on record to show that Vardichand had handed over the plot in question to Shankarlal in lieu of non- payment of the aforesaid amount of Rs. 30,000/-. The property in question therefore cannot be said to be a part of the joint property nor it was so understood till the decision taken by the panches dated 29.03.1980. 30,000/-. The property in question therefore cannot be said to be a part of the joint property nor it was so understood till the decision taken by the panches dated 29.03.1980. It is also interesting to note that the sale deed was executed about 01 month 14 days prior to the decision of panches i.e. on 15.02.1980, and therefore, there was no occasion for not including the same in the joint property partition, if the property was actually purchased by the three brothers. Thus, this Court does not find that the property was ever purchased as a benami property in name of Shanta Kumari. 18. On the other hand, this Court finds that from the averment made in the sale deed that the property was purchased by Shanta Kumari exclusively and the title of the property and the ownership was also shown to be that of Shanta Kumari. 19. In the sale deed neither the appellant is a witness nor any of his other brothers are witness to the sale deed, which also shows that they were in no manner connected with the concerned sale deed. 20. The appellant has relied on the statement of one Amrit Lal S/o. Kundanmal DW-7 to submit that the amount was paid by him. However, in the cross-examination of Amrit Lal, he admits that the amount of Rs. 15,000/- is not mentioned in his 'bahees' (account books), although he admits that whatever expenses are made, they are maintained in the account books. While in the chief, he admits that Shankar Lal had taken the amount from his father, but he admits in the cross examination that he was not present at the time when his father gave the amount to Shankarlal. He states that he received a letter from his father mentioning that Rs. 15,000/- were taken by Shankarlal, and Vardichand shall return the same, and on that basis, he received the amount from Vardichand, but he does not produce the said letter in evidence. Thus, the story of taking loan from Kundanlal mehta also falls and is concocted. In Thakur Bhim Singh (Dead) by LRs & Anr. Vs. Thakur Kan Singh (supra), it has been held as under: "14. ...... Two kinds of benami transactions are generally recognized in India. Thus, the story of taking loan from Kundanlal mehta also falls and is concocted. In Thakur Bhim Singh (Dead) by LRs & Anr. Vs. Thakur Kan Singh (supra), it has been held as under: "14. ...... Two kinds of benami transactions are generally recognized in India. 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 thereunder. In this case, the transferor continues to be the real owner. The difference between the two kinds of benami transactions referred to above lies in the fact that whereas in the former case, there is an operative transfer from the transferor to the transferee though the transferee holds the property for the benefit of the person who has contributed the purchase money, in the latter case, there is no operative transfer at all and the title rests with the transferor notwithstanding the execution of the conveyance. One common feature, however, in both these cases is that the real title is divorced from the ostensible title and they are vested in different persons. The question whether a transaction is a benami transaction or not mainly depends upon the intention of the person who has contributed the purchase money in the former case and upon the intention of the person who has executed the conveyance in the latter case. The principle underlying the former case is also statutorily recognized in Section 82 of the Indian Trusts Act, 1882 which provides that where property is transferred to one person for a consideration paid or provided by another person and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee, the transferee must hold the property for the benefit of the person paying or providing the consideration....... 18. 18. The principle governing the determination of the question whether a transfer is a benami transaction or not may be summed up thus: (1) The burden of showing that a transfer is a benami transaction lies 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 person who supplied the purchase money, unless there is evidence to the contrary; (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 motives governing their action in bringing about the transaction and their subsequent conduct etc." Thus, the burden of proving that the transfer is benami fell on the appellant. However, he has miserably failed to prove that there was a benami transaction and that the amount for the sale deed executed in favour of the plaintiff Shanta Kumari was paid from the joint funds of all the three brothers, and thus, this Court holds that the property cannot be said to be benami. In view of the aforesaid, the appellant failed to prove as above and the appeal therefore, fails on this count. 21. As regards issue No. 4 with regard to possession of the disputed plot is concerned, Shankarlal has also not been able to prove that he was having of possession of the disputed plot for several years. It is noticed that while Shankarlal states in his statement that he was in possession of the plot for 18 years, Laxmilal states that Shankarlal was having possession for 5-6 years. DW-2 Laxmilal also states that he had intention to sell the plot to Shankarlal, but in cross examination, he denied the suggestion that he exited from Mukesh Jewellers on account of his dispute with Vardichand. Thus, his statement cannot be believed as he was one of the partners in Mukesh Jewellers and later on had a dispute relating to partnership as against Vardichand. His selling the property in favour of the plaintiff has not been disputed by him and he admits executing Exhibit-1. Thus, his statement cannot be believed as he was one of the partners in Mukesh Jewellers and later on had a dispute relating to partnership as against Vardichand. His selling the property in favour of the plaintiff has not been disputed by him and he admits executing Exhibit-1. Once the sale deed has been admitted and he also admits that the amount was not paid by Shankarlal or any of his brothers, but was paid by Kundanlal Mehta and the sale deed was executed in favour of Shanta Kumari, the possession of the appellant is also not made out. Thus, there is a strong variation of the statement of Shankarlal at different places and the facts do not inspire any confidence to hold the continuous possession of the defendant nor any such averment was made at the initial stage when the reply Exhibit-3 to the notice Exhibit-2 was given by the defendant. Thus, there is an improvement of the defendant in his written statement and the subsequent statements. Issue No. 4 therefore was rightly answered in favour of the plaintiff. 22. Issue No. 5 with regard to mesne profits is also found to have been rightly answered in favour of the plaintiff. 23. Learned counsel for the appellant has submitted that proper method was not adopted. Taking into consideration that the appellant is brother-in-law of the plaintiff and taking into consideration the statement of DW-6 Babulal who states that the rental income should be around Rs. 40-50 per month, the trial court has rightly reached to the conclusion of granting mesne profits @ Rs. 50/- per month, which in the opinion of this Court is on much lower side and does not require to be interfered with. 24. As regards issues No. 7 and 8 are concerned, since the appellant was already a party to the suit and Lalit Kumar did not come in evidence to state that he was doing business of stones in the disputed property, it cannot be said that Lalit Kumar was a necessary party. The possession of the property was claimed by Shankarlal who later on improved it to prove it that of his son. Thus, his son Lalit Kumar cannot be said to be a necessary party. 25. The possession of the property was claimed by Shankarlal who later on improved it to prove it that of his son. Thus, his son Lalit Kumar cannot be said to be a necessary party. 25. As regards special compensation, no document was produced by the appellant to prove that the amount was paid for the purchase of the property from the joint funds nor such a statement has come in the decision of the panches. In view thereof, no such compensation is required to be paid. 26. In view of the above, the appeal is found to be without any merits and the same is accordingly dismissed. Decree be prepared in terms of the order passed by the court below. The record of trial court is directed to be sent back forthwith. All pending applications stand disposed of.