Sri Sekhar Kumar Roy vs Smt. Lila Roy & Another
2023 Latest Caselaw 3685 Cal

                      IN THE HIGH COURT AT CALCUTTA
                                 Civil Appellate Jurisdiction
                                    APPELLATE SIDE


Present:

The Hon'ble Justice Tapabrata Chakraborty
                 &
The Hon'ble Justice Partha Sarathi Chatterjee


                                        FA 109 of 2018
                                             with
                 IA No. CAN 2 of 2019 (Old No. CAN 2764 of 2019) [Disposed of]

                                    Sri Sekhar Kumar Roy
                                            versus
                                   Smt. Lila Roy & Another



For the Appellant            :       Mr. Ayan Poddar,
                                     Mr. Soham Dutta,
                                     Mr. Kamran Alam.



For the Respondents          :       Mr. Sagnik Chatterjee,
                                     Mr. Sayan Mukherjee.



Hearing is concluded on      :       8th May, 2023.



Judgment On                  :       7th June, 2023.




Partha Sarathi Chatterjee, J.

1. Judgment and decree dated 22nd December, 2016 passed by the

learned Civil Judge, Senior Division, Sealdah in Title Suit no. 109 of 2011,

whereby the suit for declaration, partition and permanent injunction

instituted by the plaintiff/appellant herein was dismissed, have been called

in question in the present appeal.

2. One Sekhar Kumar Roy, the plaintiff/appellant (in short, Sekhar)

presented the plaint contending inter alia that his father, Sailendra Kumar

Roy, since deceased (in short, Sailendra) purchased the suit property by

one registered deed of sale in 1969 in 'benam' of his wife, Smt. Lila Roy,

defendant no. 1, since deceased (in short, Lila). Lila, who happened to be a

house-wife, was a mere name lender and she did not contribute any single

farthing towards consideration money since she had no independent income

at the relevant time of purchase of the suit property. Sailendra got the

building plan sanctioned in the name of Lila and by spending money from

his own fund constructed two-storied building thereon. He thereafter died

intestate on 29.5.1999 leaving behind his widow, Lila, the plaintiff as his

son and one daughter, the defendant no. 2, namely Sumita Saha (in short,

Sumita), who according to Section 8 of Hindu Succession Act have inherited

1/3rd share each of the suit property and Sekhar stayed in the suit property

till 11.5.2011 and since then, he started leaving apart. Sekhar thereafter

approached the defendants to effect partition of the suit property by metes

and bounds but the defendants refuted the claim of partition of Sekhar and

hence, the suit.

3. Records reveal that both the defendants defended the suit by filing

separate written statements. Crux of the defence taken by Lila and

defendant no. 2 in their written statement is as follows:

i) Lila purchased the suit property from her 'stridhan' property.

She asserted that she got the building plan sanctioned in her

own name and then constructed two-storied building on the suit

land from her own fund;

ii) She further claimed therein that according to legislative fiat

incorporated in Section 3 of Benami Transaction (Prohibition)

Act, 1988 (hereinafter referred to as the 1988 Act), she became

the absolute owner of the suit property and same was duly

mutated in her name and deed of conveyance dated 20.1.1970

had never been challenged either by Sekhar or by her husband

at any point of time and mere payment of requisite

consideration money does not, ipso facto, prove benami

transaction;

iii) She claimed that Section 8 of Hindu Succession Act, 1955 has

got no application in the present lis and she emphatically

denied that Sekhar has acquired 1/3rd share in the suit

property;

iv) She lamented that Sekhar abandoned her in May, 2011 and

since his marriage, Sekhar subjected her to mental and physical

torture and she used to pass her days taking financial

assistance from her daughter, the defendant no.2 and by

executing one will, which was registered on 4.9.2011, she

bequeathed the suit property in favour of Sumita;

4. Upon pleadings of the respective parties, the learned Court below

framed as many as four issues. In corroboration of the facts depicted in the

plaint, Sekhar adduced his oral testimony but he did not tender any

document whereas to lend support to their case projected in written

statement, both the defendants deposed and produced some documents

which were admitted in evidence as Ext. A to E.

5. Aggrieved by the judgment and decree whereby the suit was

dismissed, Sekhar preferred the present appeal contending, inter alia, that

the learned Court below ought to have considered that Lila happened to be

a mere house-wife and she had no independent income and hence, she was

a mere name lender and Sailendra, his father purchased the land and

constructed a structure thereon for the benefits of his family members and

learned Court below ought to have considered that Lila in her evidence

admitted that she was not engaged in any profession throughout her life and

Sailendra was the sole bread-earner of her family and defendants failed to

prove that Lila paid the consideration money to purchase the land and Lila

incurred expenses for construction of the building standing thereon.

6. Mr. Poddar, learned Advocate representing Sekhar, the appellant

herein submits that Lila claimed that she purchased the suit property and

constructed a building thereon from her 'stridhan' properties but no

particulars of 'stridhan' properties have been disclosed and Lila did not

disclose wherefrom she acquired the 'stridhan' properties and she did not

disclose the value of her 'stridhan' properties. He contends that from the

evidence of Lila it is graphically clear that she was a mere house-wife and

she had no independent income of her own whereas Sailendra had a

business of soap and oil and that Sailendra was the only earning member of

the family at the relevant time of purchase of the suit property. According to

Mr. Poddar the learned Court below should have considered whether the

story that Lila purchased the suit property from her own fund is probable or

not. He asserts that the defendants failed to prove that suit property was

purchased from Lila's 'stridhan' properties and hence, Court should have

decreed the suit. He submits that cavil between the parties should be given

a clear burial by declaring share of Sekhar and by ordering partition of the

suit property. To bolster his submission, he placed reliance upon the

judgments delivered in cases of Union of India -vs- Moksh Builders And

Financiers Ltd. & Ors. reported in (1977) 1 SCC 60, Pulin Behari Addy -vs-

Debendra Nath Addy reported in (1981) 1 CHN (CAL) 531, Dr. Prasanta

Kumar Das -vs- Susanta Kumar Das & Ors. reported in (2017) 1 CHN (CAL)

452(DB).

7. In response, Mr. Chatterjee, learned Advocate appearing for the

respondents submits that the suit property was purchased in 1970 and

Sailendra died in 1999. Sekhar dragged Lila, his mother, aged about 85

years, in Court. Lila deposed in 2016 regarding the suit property which was

purchased almost 46 years back. Hence, it is not expected that Lila would

preserve all the documents and proofs relating to payment of consideration

money and expenses borne for construction of building. He informed the

Court that Lila has gifted the suit property in favour of her daughter in 2015

by dint of registered deed of gift and thereafter Lila died in 2019.

8. Mr. Chatterjee further contends that Lila paid taxes to the

Corporation and drawing our attention to the evidence of the parties, he

contends that Sekhar himself admitted that he did not look after her

mother. He submits that appellant has been making desperate attempt to

shift the burden upon the defendants but it is burden of the plaintiff to

prove that Sailendra paid the consideration money and incurred the

expenses for construction of the structure.

9. Mr. Chatterjee further submits that plaintiff has failed to prove that

Sailendra had a motive to create benami in the name of Lila and plaintiff did

not bring any evidence to prove that Sailendra had sufficient money to

finance Lila for purchasing the suit property and hence, the learned Court

below has rightly refused to decree the suit. He contends that from the

evidence it is evident that after marriage, Lila came to possess jewellery and

valuable articles and from such 'stridhan' articles, Lila purchased the suit

property and constructed the building. To strengthen his submission he

placed reliance upon a judgment delivered in case of Valliammal -vs-

Subramanian & Ors. reported in (2004)7 SCC 233.

10. In reply, Mr. Poddar submits that question of onus has not been

properly appreciated by the learned Court below. According to him, when

both the parties have adduced their respective evidence, question of burden

of proof loses its significance. Burden lies upon Lila to prove her source

wherefrom she collected consideration money and expenses for construction

of building since it is demonstrable from the evidence that she had no

independent income. He submits that Lila lost his father at her age of 2

years and she was brought up by her maternal uncle and hence, the story

that she came to possess jewellery and valuable articles before and at the

time of her marriage has no leg to stand on.

11. Crucial question which is to be answered in the present appeal is

whether the transaction i.e. the purchase of suit property under registered

deed of sale dated 20.01.1970 by Lila is benami transaction.

12. Benami Transaction (Prohibition) Act, 1988 defines the

expression, 'benami transaction' and equipped the appropriate authority

with powers to acquire benami property. Provisions of three sections being

Sections 3, 5 & 8 of the 1988 Act, which was initially a 9-section legislation,

came into force with effect from 5.9.1988 whereas the remaining provisions

thereof came into force from the date being 19.9.1988. Section 3 being a

prohibitory legislation cannot have retrospective operation but the Section

2(a) of the Act which is a piece of declaratory legislation can have its

application irrespective of its date or duration. So, definition of the

expression 'benami transaction' can be borrowed from Section 2(a) of the

1988 Act in respect of the transaction held prior to promulgation of the said

Act. As defined in Section 2(a) of the Act 'benami transaction' means any

transaction in which property is transferred to one person for a

consideration paid or provided by any other person. A transaction must,

therefore, be benami irrespective of its date or duration.

13. In India, two kinds of benami transactions are generally

recognized. 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. [See, the judgment delivered in the cases of

Bhim Singh - vs- Kan Singh, reported in (1980) 3 SCC 72 and Pulin Behari

Addy (supra)].

14. However, there is a presumption in law that the person who

purchases the property is the owner of the same and such presumption can

be displaced only by pleading and successfully proving that the person

whose name appears in the document is not the real owner, but only a

benami and heavy burden lies on the person who pleads that recorded

owner is mere name-lender.

15. Now, coming to the case at hand, it can be argued that to hold

the subject transaction as benami transaction, it is to be proved by the

principle of preponderance of probability that although the suit property was

purchased in name of Lila but the consideration money was paid or provided

by her husband and not by Lila.

16. Indisputably, subject deed of sale was executed and registered on

20.01.1970. Sekhar preferring the suit in 2011 claimed that Lila, transferee

was mere name-lender and Sekhar adduced his oral testimony only and he

did not produce any document whereas Lila deposed in 2016 and adduced

her oral accounts which found support from the evidence of DW-2 and Lila

had produced all the documents relating to suit property.

17. During course of hearing, both the appellant and the respondents

advanced their arguments on the issue relating to 'burden of proof'. So,

main question centred around the present appeal is whether it was Sekhar

who had to discharge the burden to prove that the subject sale transaction

was benami transaction or it was Lila who was to prove that she purchased

the suit property from own fund or 'stridhan' properties detailing the source

of such fund and disclosing every details of payment of consideration

money.

18. The question relating to burden of proof has been set at rest in the

judgment of Jaydayal Poddar (Deceased) thr. Lrs. -vs. Mst. Bibi Hazra

reported in AIR 1974 SC 171 in which the Hon'ble Apex Court ruled as

follows:

"It is well settled 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 or benami or establish

circumstances unerringly and reasonably raising an inference 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 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 considerable

deliberation, and the person expressly shown as the purchaser in the

deed, starts with the initial presumption in his favour that the apparent

state of affairs is the real state of affairs. 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 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."

19. In the given case, Sekhar claimed that his mother, Lila was a mere

name-lender. He deposed that at the relevant time of sale, he was not

present and he could not say the actual amount of consideration money and

he admitted that he did not verify from attesting witness, identifier etc.

whether his father paid the consideration money and he admitted that his

father never claimed himself to be the real owner of the suit property and he

admitted that he did not have any document to show that his father paid the

consideration money.

20. From evidence of Lila, it appears that Lila admitted that she was a

home-maker throughout her life and she had no independent income of her

own and she asserted that she purchased the suit property from her

'stridhan' properties. She claimed that she herself purchased the property

selling her gold ornaments. Admittedly, Lila testified that during his stay in

the suit property, Sekhar used to behave well with her.

21. Mr. Poddar tried to convince us that since both the parties have

led evidence, question of burden of proof has lost its significance and Court

should pass judgment appreciating evidence let in by the parties and since,

Lila failed to disclose the particulars of her 'stridhan' properties and since,

Lila admitted that she was a home-maker throughout her life having no

independent income of her own, the learned Court below should have come

to the conclusion that Lila was nothing but a mere name-lender.

22. At the cost of reiteration, it may be stated that a Court is required

to bear in mind the well-settled principles to the effect that the burden of

showing that a transfer is a benami transaction always lies on the person

who asserts it. In the Indian society, if a husband supplies the consideration

money for acquiring property in the name of his wife, such fact does not

necessarily imply benami transaction. Source of money is, no doubt, an

important factor but not a decisive one. The intention of the supplier of the

consideration money is the vital fact to be proved by the party who asserts

benami. In other words, even if it is proved that Sailendra paid the

consideration money, the plaintiff must further prove that Sailendra really

intended to enjoy the full benefit of the title in him alone.

23. In the case before us, Sekhar could not bring any evidence even to

show what was amount of consideration money and how the consideration

money was paid and how the suit property was purchased and even he

could not prove who paid the consideration money. He could not produce

any document relating to the suit property. Title deed and all documents

relating to the suit property were all along in the custody of Lila and Lila all

along paid municipal tax and got the suit property mutated in her name and

Sekhar could not bring any evidence on record to lead any prudent man to

infer that his father had a motive to create benami in name of his mother or

Sailendra intended to enjoy the full benefit of the title in him alone.

Judgments relied upon by the appellant in spite of having unquestionable

value of the proposition laid down therein, shall not come in aid of the

appellant in the factual matrix of the case at hand.

24. As a result, we are inclined to hold that learned Court below has

correctly held that Sekhar has failed to discharge his burden to prove that

subject sale transaction is benami transaction and we have not found any

wrong in the approach and decision of the learned Court below and we are

of the view that judgment and decree impugned cannot be annihilated.

25. Ex consequenti, the appeal fails. Judgment and decree impugned

are affirmed. Parties shall bear their own costs.

26. Let a decree be drawn up, accordingly.

27. Let a copy of this judgment along with the LCR be sent down to

the learned Court below forthwith.

28. Urgent Photostat copy of this judgment, if applied for, shall be

granted to the parties as expeditiously as possible, upon compliance of all

formalities.

(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)