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2024 DIGILAW 1841 (ALL)

Rama Shankar v. Lala Waziri Lal

2024-08-07

KSHITIJ SHAILENDRA

body2024
JUDGMENT : (Kshitij Shailendra, J.) 1. Summons were duly published in daily newspaper Amar Ujala in compliance of order dated 09.12.2022. Compliance affidavit supported by original newspaper is on record. Service of notice upon respondent nos.1/1 and 1/2 is, therefore, held to be sufficient. No one has filed vakalatnama on their behalf. 2. Appeal is ripe for final hearing. The Court, therefore, proceeds to finally decide the appeal. 3. Heard Sri Anil Sharma, learned Senior Counsel assisted by Sri Ramesh Kumar, learned counsel for the defendant-appellants and perused the record. 4. The instant second appeal raises a challenge to the judgment and decree dated 06.04.1979 whereby, the first appellate court has set aside the judgment of the trial court and decreed the suit filed by the plaintiff-respondents for recovery of possession of immovable property and damages. 5. The relevant facts of the present case are that one Kuremal had three sons namely, Dwarika Prasad, Waziri Lal and Banke Lal. Dwarika Prasad had a daughter namely, Kamlawati, who was married to one Ram Narayan. This couple had three sons namely, Rama Shankar, Ravi Shankar and Rati Shankar. Waziri Lal, i.e. real brother of Dwarika Prasad, instituted Original Suit No.602 of 1970 against Kamlawati and her three sons claiming a decree for possession and damages in respect of immovable property described in the plaint. The basis of the claim was that there was a sale deed dated 09.07.1942 existing in the name of Dwarika Prasad, however it was Waziri Lal, who had actually purchased the property in the name of Dwarika Prasad and, therefore, plaintiff Waziri Lal had become owner of the same. 6. The Trial Court, after analyzing oral and documentary evidence led by the parties, arrived at a conclusion that plea of benami transaction could not be established and, consequently, dismissed the suit. 7. The decree has been reversed by the first appellate court and the issue no.1, which is germane to the controversy involved, was decided against the defendant-appellants holding that the sale deed of 1942 was a benami transaction. Consequently, the appellate court held Waziri Lal as true owner of the property and has drawn the decree against the defendant-appellants. 8. The instant second appeal was admitted by order dated 17.05.1979 on the grounds No.5, 8, 9 and 10 contained in the memo of appeal. The said grounds are quoted hereunder : "5. Consequently, the appellate court held Waziri Lal as true owner of the property and has drawn the decree against the defendant-appellants. 8. The instant second appeal was admitted by order dated 17.05.1979 on the grounds No.5, 8, 9 and 10 contained in the memo of appeal. The said grounds are quoted hereunder : "5. Because it having been admitted to Wajiri Lal- plaintiff, that he did not know, who had written the letters purported to have been sent by Dwarika Prasad, Smt. Kamlawati and Sri Ram Narain to him, the said letters were not legally proved in this case and the learned lower appellate Court has wrongly placed reliance on the same. 8. Because the lower appellate court has completely misread the evidence on record to arrive at the conclusion that the sale deed in favour of Lal Dwarika Prasad was a Benami transaction. 9. Because the onus to prove that the property purchased in the name of Lal Dwarika Prasad was Benami was heavily on the plaintiff, who having failed to discharge the same, the finding of the lower appellate Court is erroneous. 10. Because documents on record substantially proved without any doubt that Wajiri Lal himself was not possessed of any means nor he had any source of income, from which he could have purchased the accommodation in dispute, inasmuch as it was not possible for him even to provide for the tuition fee for his son, who had to be taken out from the School for non-payment of the tuition fee." 9. The submission of learned Senior Counsel is that not only necessary pleadings but also entire evidence led by the plaintiff-respondent was lacking in the sense that it was not stated in the plaint that sale consideration in relation to the sale deed of 1942 had been paid by the plaintiff. It is further contended that as far as evidence is concerned, the first appellate court discussed various letters on record and arrived at a conclusion that since no letter was written to Dwarika Prasad and one Vidyanand interacted with Waziri Lal by sending letters, it would be deemed that Dwarika Prasad was not the real owner of the property and, therefore, the transaction was a benami transaction. Statements of witnesses were also discussed by the appellate court. 10. Learned Senior Counsel has placed reliance upon the following judgments in support of his contention : 1. Statements of witnesses were also discussed by the appellate court. 10. Learned Senior Counsel has placed reliance upon the following judgments in support of his contention : 1. Bhim Singh (dead) by L.R.s and another v. Kan Singh, AIR 1980 Supreme Court 727. 2. V. Shankaranarayana Rao (D) by L.Rs. & Ors. v. Leelavathy (D) by L.Rs. & Ors., AIR 2007 Supreme Court 2637. 3. Diwakar Sahkari Krishi Samiti Ltd. and others v. State of Uttar Pradesh and others, 1988 R.D. 208. 11. Placing reliance upon the aforesaid authorities, it is urged that the burden of proving the transfer as benami transaction lies on person who asserts such a transaction as benami and it has to be proved by him that the purchase money came from the person other than the person in whose favour the property is transferred. 12. Having heard learned counsel for the appellant, I find that there is no dispute that sale deed was in the name of Dwarika Prasad who was maternal grand father of defendant nos.2, 3 and 4 and father of defendant no.1. In order to arrive at a conclusion that the sale deed was a benami transaction, there should have been clear pleadings as well as trustworthy evidence to hold the transaction as such. What the court finds from the appellate judgment is that it has given much weightage to various letters on record. The Court has perused the original record of the proceedings. One letter was written by one Vidyanand to Waziri Lal as discussed by the first appellate court. Vidyanand was tenant in the shop in dispute. In the said letter, it is written that he was not aware of the fact as to whether Waziri Lal had or had not acquired rights over the property. Another letter is by one Ram Prakash, which was written to Waziri Lal but it also does not speak anything about ownership of the property. Few letters inter se Dwarika Prasad and Waziri Lal are also on record, however, the Court finds that both the said real brothers were just asking about well being of each other and from nowhere it can be inferred that there is any admission as regards payment of sale consideration by Waziri Lal to Dwarika Prasad in relation to sale deed of 1942. Therefore, the documentary evidence as regards payment of sale consideration is thoroughly lacking. Therefore, the documentary evidence as regards payment of sale consideration is thoroughly lacking. As far as oral testimony of witnesses is concerned, the trial court arrived at a conclusion that except plaintiff, there is no witness was worth believing and the plaintiff being an interested witness, his statement would not make the transaction as benami. The first appellate Court has referred to the testimony of witnesses but the same does not appeal to this Court to arrive at a definite conclusion that sale deed of 1942 was a benami transaction. 13. The Hon'ble Supreme Court, in Bhim Singh (supra) held that : "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 transfer 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." 14. The Apex Court in V. Shankaranarayana Rao (supra) held that : "11. 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." 14. The Apex Court in V. Shankaranarayana Rao (supra) held that : "11. Principle on the basis whereof determination of the question as to whether a transaction is a benami one or not depends upon a large number of factors. Some of them had been noticed by this Court in Thakur Bhim Singh (Dead) By LRs and Another v. Thakur Kan Singh [ (1980) 3 SCC 72 ] in the following terms: "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) 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." The said principle has been reiterated by this Court in Binapani Paul v. Pratima Ghosh & Ors. [ 2007 (6) SCALE 398 ] In the aforementioned judgments, this Court has inter alia emphasised on the fact that the role and / or the motive on the part of the person who had advanced the amount of consideration plays an important role in determination of the nature of transaction. The High Court unfortunately had not considered the question from the said angle. The High Court while pronouncing the impugned judgment had also not considered the effect and purport of the requisite ingredients for arriving at a decision as to whether the transaction in question is benami or not." 15. The High Court unfortunately had not considered the question from the said angle. The High Court while pronouncing the impugned judgment had also not considered the effect and purport of the requisite ingredients for arriving at a decision as to whether the transaction in question is benami or not." 15. This Court, in Diwakar Sahkari Krishi Samiti Ltd. (supra) held that : "It is well settled law that the source whence the purchase money came is by for the most important test for determining whether the sale standing in the name of one person is in reality for the benefit of another and unless it is established that the source of consideration came from the person other than the ostensible owner, the transaction cannot be held to be Benami transaction. Hence the payment of consideration is the real test for determining as to who is the real owner of the land in dispute. In Gangadara Ayyar and others v. Subramania Sastrigai and others, AIR 1949 FC 88, Mr. Justice Mahajan laid down the following principle at page 92:- "It is settled law that the onus of establishing that a transaction is Benami is on the plaintiff and it must be strictly made out. The decision of the Court cannot rest on mere suspicion but must rest on legal ground and legal testimony. In absence of evidence, the apparent title must prevail." In Surasaibalini Devi v. Phanindra Mohan Majumdar, AIR 1965 SC 1364 , their Lordships laid down on page 1372 that : "We start with the position that the court will presume an ostensible title to be the real title unless a plaintiff who seeks to assert the contrary pleads and proves that the ostensible owner is not the real owner. In other words, the onus is on the person who alleges a transaction to be Benami to make it out. Of course, the source of the funds from which the purchase is made coupled with the manner of its enjoyment would be a very material fact or for establishing the proof of Benami but the mere proof of the source of purchase money would not finally establish the Benami nature of the defendants title. Of course, the source of the funds from which the purchase is made coupled with the manner of its enjoyment would be a very material fact or for establishing the proof of Benami but the mere proof of the source of purchase money would not finally establish the Benami nature of the defendants title. Even where the plaintiff purchases property with his own funds in the name of 'B' the surrounding circumstances, the mode of enjoyment might still indicate that it was intended to be a gift and it would then be a case of Benami notwithstanding that the purchase money did not proceed from the defendant." In Jayadayal Poddar v. Bibi Hazra, (1974) 1 SCC 3 , the Supreme Court observed thus:- "It is well settled that the burden of proving that the particular sale is Benami and that the appellant purchaser is not the real purchaser always rests on the person asserting it to be so. The burden has to be strictly discharged by adducing the legal evidence of a definite character which would directly affect the proof of fact of Benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of Benami is that the intention of the party of parties is 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 conjectures or surmises as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after consideration and the person expressly shown as the purchaser or transferee in the deed starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs." 16. In view of the above discussion of facts and the law laid down by the Apex Court and this Court, I am of the firm opinion that there was neither sufficient pleadings nor trustworthy evidence to hold the transaction as benami. Inter- se-communication between two real brothers which does not infer anything regarding the transaction or any communication with third party would not confer owner ship upon Waziri Lal. Ingredient of real intention of parties is also absent. Inter- se-communication between two real brothers which does not infer anything regarding the transaction or any communication with third party would not confer owner ship upon Waziri Lal. Ingredient of real intention of parties is also absent. Payment of sale consideration by Waziri Lal is also not proved. 17. Consequently, the conclusion drawn by first appellate court declaring the transaction as benami is found to be erroneous on factual and legal platform. Accordingly, the questions of law framed by this Court, as above, are answered in favour of the appellants and it is held that there being no sufficient pleadings and evidence to hold the sale deed of 1942 as benami, the first appellate court has erred in reversing the decree drawn by the trial court. Consequently, the rights in the property of Dwarika Prasad would devolve upon his natural successors, who are the appellants before this Court. 18. In view of the above, the second appeal succeeds and is allowed. 19. The impugned judgment dated 06.04.1979 passed by the IV Additional District Judge, Bijnor in Civil Appeal No.363 of 1976 and the decree drawn on that basis is set aside. 20. Office is directed to send back the record of the courts below to District Judge, Bijnor for being preserved in accordance with General Rules (Civil).