Shri Mohinder Singh vs Shri Kartar Singh & Ors.
2008 Latest Caselaw 2066 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                          Judgment reserved on : October 22, 2008
%                       Judgment delivered on : November 24, 2008

+                       RFA 422/2004


SHRI MOHINDER SINGH                             ..... Appellant
                        Through:    Mr.V.M.Issar, Adv.

                              versus

SHRI KARTAR SINGH & ORS.                       ...... Respondents
                    Through:        Mr.Zafar Sadique, Adv.


Coram:
*   Hon'ble Mr.Justice Pradeep Nandrajog
    Hon'ble Mr.Justice Siddharth Mridul


1.    Whether reporters of local papers may be allowed
      to see the judgment?

2.    To be referred to the Reporter or not?

3.    Whether judgment should be reported in Digest?


PRADEEP NANDRAJOG, J.

1. The original suit bearing Suit No.758/2001 was filed by the

appellant, Mohinder Singh, against the respondents for the

partition of his alleged 1/4th share in the property bearing

Municipal No.WZ-2, Mohalla Krishan Nagar, Sahibpura, Tilak

Nagar, New Delhi (hereinafter referred to as the "Suit Property")

and also for rendition of accounts of rent received and realized

by the respondents from the tenants of the shops in the suit

property.

2. The case set up by the appellant in the plaint was that Late

Smt.Attar Kaur (hereinafter referred to as the "deceased") who

was the owner of the suit property died intestate on 13.08.84

leaving behind her husband, respondent No.1, and three sons,

appellant and respondents No.2 and 3 as her legal heirs. That

since the deceased died intestate, the appellant being son of

the deceased, is entitled to 1/4th share in the suit property as

per the provisions of the Hindu Succession Act, 1956.

3. The respondents No.1 and 3 contested the suit by filing

separate written statements. Respondent No.2 chose not to

contest the suit and thus was proceeded ex-parte by the

learned Trial Court.

4. The defence predicated by the respondents Nos.1 and 3 in their

respective written statements was two-fold. That the deceased

had not died intestate as alleged by the appellant but had

executed a Will dated 26.12.83 bequeathing the suit property in

favour of respondent No.1. That the deceased was a benami

owner of the suit property inasmuch as respondent No.1 had

paid the entire sale consideration for purchasing the plot and

had also raised constructions over the same from time to time

from out of his own funds.

5. On the basis of the pleadings of the parties, following issues

were settled by the learned Trial Court:-

"1. Whether the suit is not maintainable in view of the preliminary objection No.1? OPD.

2. Whether the plaintiff is not entitled to seek partition as alleged in preliminary objection No.2? OPD.

3. Whether the defendant No.1 purchased the disputed plot in the name of the deceased Smt.Attar Kaur, Benami? OPD.

4. Whether the deceased Smt.Attar Kaur left behind any valid Will as alleged in written statement? OPD.

5. Whether the defendants can take up the plea that the plot in question was purchased in the name of deceased, Attar Kaur, benami? OPD

6. Whether the construction was carried out by the defendants themselves in their respective portion in their possession, if so, to what effect? OPD.

7. Whether the plaintiff is entitled to partition of the suit property, if so, how much share? OPP.

8. Relief."

6. Insofar as evidence led by the appellant is concerned, besides

examining himself as PW-1, he examined one Mr.Rameshwar

Dayal as PW-2 to prove the site plan, Ex.PW2/1 of the suit

property. In his testimony, the appellant deposed that the

deceased was a housewife till her death and had no source of

income of her own but stated that his mother sold her gold

ornaments to purchase the land.

7. On behalf of the contesting respondents, affidavit of one

Mr.Tirath Singh was filed by way of examination in chief to

establish the genuineness of the Will dated 26.12.83 Ex.DW1/1.

However, the said witness was not produced for cross-

examination. One Mr.Charan Singh was examined as DW-1 to

prove the execution of the Will dated 26.12.83 Ex.DW1/1

purportedly executed by the deceased in favour of respondent

No.1. The Respondent No.1 stepped into the witness box as

DW-2 and deposed that he had purchased the suit property for

a sale consideration of Rs.480/- in the name of the deceased

because he was under an impression that the government

servants cannot purchase a property in their own name and

that the constructions were raised by him from time to time from

his earnings and money contributed by respondents Nos.2 and

3 and the compensation received by him on death of his son.

One Ms.Manjeet Kaur, Zonal Inspector, MCD, Rajouri Garden

was produced as DW-3 to prove the ratable value of the suit

property. (Certain documents were produced by the said

witness which are vital for adjudication of present appeal and

shall be discussed in detail in later part of this judgment.) One

Mr.A.Rehman was examined as DW-4 to prove the registered

sale deed Ex.DW4/A of the suit property recording deceased as

the lawful owner of the suit property.

8. Vide impugned judgment and decree dated 01.05.04, the

learned Trial Court dismissed the suit filed by the appellant. The

learned Trial Court has held that the respondents have not

been able to prove that the Will dated 26.12.83, Ex.DW1/1,

allegedly executed by the deceased bequeathing the suit

property in favour of respondent No.1 is the last legal and valid

testament executed by the deceased. However, the other

defence raised by the respondents that respondent No.1 is the

real owner of the suit property and that the deceased was a

mere benamidar of respondent No.1 has found favour with the

learned Trial Court thus resulting in dismissal of the suit filed by

the appellant.

9. Since there is no cross-appeal or cross-objections by the

respondents, the finding of the learned Trial Court that the

respondents have not been able to prove that the Will dated

26.12.83 Ex.DW1/1 allegedly executed by the deceased

bequeathing the suit property in favour of respondent No.1 is

the last legal and valid executed by the deceased has attained

finality. Thus the only question which needs adjudication in the

present appeal is whether the learned Trial Court has rightly

come to the conclusion that respondent No.1 is the real owner

of the suit property and the deceased was a mere benamidar of

respondent No.1.

11. In a suit claiming a property as benami, there must be cogent

and sufficient evidence to conclude that the apparent owner is

not the real owner. In order to ascertain whether a particular

sale is benami and the apparent purchaser is not the real

owner, the burden lies on the person asserting the same to

prove so. Such burden has to be strictly discharged through

legal evidence of definite character. Such evidence should

either directly prove the fact of benami or establish

circumstances unerringly and reasonably raising an inference

of that fact. It is the intention of the parties, which is to be

discovered. Very often such intention is shrouded in a thick veil.

It is not possible to pierce the veil easily. But such difficulties

would not relieve the person, asserting the transaction to be

benami, of any part of the onus that rests on him. The difficulty

would not justify the acceptance of mere conjecture or surmise

as a substitute for proof. The mere circumstance that the

ostensible owner has not proved that he had himself paid the

price or had sufficient funds to be able to do so, would also not

be enough by itself to sustain the claim of the alleged

benamidar owner. The proof has to be weighed against a

document prepared and executed showing the person

expressly as purchaser or transferee. This follows the initial

presumption in favour of the apparent state of affairs being the

real state of affairs. However, the question is largely one of

facts. For determining this question, no absolute formula can

be evolved nor can a formula so evolved be uniformly applied

in all situations. But in such circumstances, it is the probabilities

and inferences, which are to be gathered in order to discover

the relevant indicia. It is not sufficient to show circumstances,

which might create suspicion. The Court cannot decide on the

basis of suspicion. It has to act on legal grounds established by

evidence. In order to determine whether a transaction was or is

a benami one, the following guidelines may be followed,

namely: (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. A party invoking the plea of benami in order to prove the

real ownership of the property which is the subject-matter of lis

is required to show that there were valid reasons for purchase

of the property in name of the benamidar and that the

purported real owner had paid the sale consideration for the

purchase of the property. In regard to these legal propositions

relating to proof of benami transactions, reference may be

made to decisions of the Hon'ble Supreme Court reported as

M.Nagendriah v M.Ramachandraiah (1969) 1 UJ 697 (SC),

Jaydayal Poddar v Mst. Bibi Hazra AIR 1974 SC 171,

Krishnanand v State of Madhya Pradesh AIR 1977 SC 796

and Valliammal (D) by LR's v Subramaniam & Ors AIR 2004

SC 4187.

12. In coming to the said conclusion that the deceased was a mere

benami owner of the suit property, the learned Trial Court has

opined that depositions of the appellant to the effect that the

deceased was a housewife till her death and had no source of

income of her own itself establish that respondent No.1 was the

real owner of the suit property and that the deceased was a

mere benami owner thereof.

13. It is a rule of prudence that the courts should read testimonies

of the witnesses in a conjunctive manner and not disjunctively.

It is impermissible to pick up stray statements made by a

witness, delinking them from the testimony as a whole. While

appreciating the oral evidence, the courts should also keep in

mind that generally witnesses are laymen having no knowledge

of the legal niceties.

14. In the instant case, the learned Trial Court has read in isolation

the deposition of the appellant to the effect that the deceased

was a housewife till her death and had no source of income of

her own. It has been overlooked by the learned Trial Court that

in his testimony the appellant has also categorically deposed to

the effect that the suit property was not purchased by

respondent No.1 from his income and that it was purchased

from the sale proceeds of the gold of the deceased. A

conjunctive and harmonious reading of the said two statements

leads to the conclusion that the appellant had deposed to the

effect that the suit property was purchased for consideration

flowing from his mother being paid out of the sale proceeds of

the gold of the deceased.

15. In the instant case, except for the bald deposition of respondent

No.1 that he had paid the entire sale consideration for purchase

of the suit property and had raised constructions over the same

from his earnings and amounts contributed by respondents

Nos.2 and 3 and amount of compensation received by him on

death of his son, there is no evidence, documentary or

otherwise, led by the respondents to establish that respondent

No.1 had paid the sale consideration for purchase of the suit

property or had raised construction thereon.

16. In such circumstances, when the Respondents have not led

any positive evidence to show that the Respondent No.1 had

paid the sale consideration for the purchase of the suit property

it has to be held that the Respondents have not been able to

dislodge the initial presumption that the deceased who is the

recorded owner of the suit property, is the real owner thereof.

17. The matter can also be looked at from another angle. Mere

payment of consideration by a third person will not make

transactions in all cases benami. Reference may be made to

the decision of the Madras High Court reported as Chittaluri

Sitamma & Anr v Saphar Sitapatirao AIR 1938 Mad 8

wherein it was has been held as under:-

"..........the mere suspicion that the purchases might not have wholly been made with the Lady's money will certainly not suffice to establish that the purchases were benami, nor even the suspicion that moneys belonging to Jagannadha Rao whether in Smaller measure or larger measure, must have also contributed to these purchases. Even in cases where there is positive evidence that money had been contributed by the husband and not by the wife, that circumstance is not conclusive in favour of

the benami character of the transaction though it is an important character."

18. The afore-noted decision of the Madras High Court in

Chittaluri's case (supra) was noted with approval by the

Hon'ble Supreme Court in the decision reported as Binapani

Paul v Pratima Ghosh AIR 2008 SC 543. In the said case

there was a dispute with respect of the ownership of a property

which stood in the name of a lady. Disputes arose between

children of the said lady after the death of the lady. The son had

opposed mutation in daughters' names on the ground that their

father was the benami owner. The trial court rejected the said

contention, but the High Court upheld the objection of the son.

However the Hon'ble Supreme Court, in appeal, held the view

of the trial court as the correct one. It was observed that the

deceased lady had been treated as the owner of the property

during the lifetime of her husband and that she had even paid a

part of the consideration for the said property. The Supreme

Court also noted that there could be various reasons for a

person to buy a property in the name of someone else and in all

cases such transactions would not be in the nature of a Benami

transaction. The Court further noticed that for a particular

transaction to be called benami, credence has to be given to

the surrounding circumstances and the intention of the parties

at the time of the transaction and their subsequent conduct.

The Hon'ble Supreme Court in the decision reported as Thakur

Bhim Singh v. Thakur Kan Singh AIR 1980 SC 727 dealt with

the question of the intention behind a benami transaction and

held that the intention could be gauged on the basis of:

(a) Surrounding circumstances,

(b) Relationship of the parties,

(c) Motives governing their action in bringing about the

transaction, and

(d) Their subsequent conduct.

19. At this juncture, it is most relevant to note three documents

produced by Ms. Manjeet Kaur, Zonal Inspector, MCD, Rajouri

Garden, DW-3 before the learned Trial Court which throws light

upon the conduct of respondent No.1 and sons of the deceased

with regard to the status of ownership of the deceased in the

suit property.

20. The first document is an application dated 30.12.85, Ex.DW3/A

submitted by respondent No.1 to the MCD after the death of the

deceased wherein it has been stated that the deceased was the

owner of the suit property and had executed a Will dated

17.12.81, Ex.DW1/B, bequeathing the suit property in favour of

her three sons and therefore the suit property be mutated in the

name of the three sons of the deceased.

21. The second document is a Will dated 17.12.81, Ex.DW3/B

purportedly executed by the deceased submitted by respondent

No.1 along with the application dated 30.12.85 which contains a

recital that the deceased is the 'absolute' owner of the suit

property.

22. The third document is an indemnity bond, Ex.DW3/C, executed

by the sons of the deceased i.e. the appellant, respondents

Nos.2 and 3 after the death of their mother which also contains

a recital that the deceased was the owner of the suit property

during her lifetime.

23. The afore-noted three documents show that the appellant and

respondent Nos.2 and 3 had treated the deceased as the lawful

owner of the suit property.

24. Thus, in such circumstances, even if it is assumed that

respondent No.1 had paid sale consideration for the purchase

of the suit property, the same would be of no effect because the

fact of the recording of name of the deceased as the owner of

the suit property coupled with the other fact that respondent

No.1 had treated the deceased as the owner of the suit

property during her lifetime probabilizes that the respondent

No.1 had intended to create a beneficial interest and not a

benami interest in favour of the deceased in the suit property. In

Binapani Paul's case (supra), a major factor which led the

Hon'ble Supreme Court to come to the conclusion that the

transaction in question was not a benami transaction was the

fact that the lady who was alleged as benami owner was

treated as the owner of the disputed property during her

lifetime.

25. Before concluding, we would also like to note another material

circumstance. The Respondent No.1 had submitted a Will

dated 17.12.81, Ex.DW1/B, purportedly executed by the

deceased bequeathing the suit property in favour of her three

sons along with his application dated 31.12.85, Ex.DW1/B, to

the MCD for mutation of the suit property. The said two

documents were submitted by respondent No.1 after the death

of the deceased. However, defence predicated by the

Respondent No.1 before the learned Trial Court was based

upon the Will dated 26.12.83, Ex.DW1/1, allegedly executed by

the deceased bequeathing the suit property in favour of

respondent No.1. There is one material difference between the

recitals in the two Wills. The Will dated 26.12.83, Ex.DW1/1,

contains a recital that the deceased had purchased the suit

property from the savings/earnings of respondent No.1.

However, the said recital is conspicuously absent in the Will

dated 17.12.81 which on the contrary contains a recital that the

deceased is the absolute owner of the suit property. This

material difference between the recitals of the Will dated

17.12.81, Ex.DW3/B, which itself was submitted by respondent

No.1 to the MCD after the death of the deceased and the

Will dated 26.12.83, Ex.DW1/1, alleged to be the last legal and

valid testament executed by the deceased by the Respondent

No.1 and found not a genuine document by the learned Trial

Court strongly probablizes that the defence set up by the

respondents that respondent No.1 was the real owner of the

suit property and that the deceased was a mere benamidar of

respondent No.1 is a concocted story set up by the

respondents to defeat the claim of the appellant.

26. The upshot of the entire discussion is that the respondents who

had set up the defence of benami have failed to prove that

respondent No.1 is the real owner of the suit property and the

deceased who is the recorded owner of the suit property was a

mere benamidar of the respondent No.1.

27. In view of the above discussion, we allow the appeal filed by

the appellant and set aside the impugned judgment and decree

dated 01.05.04 passed by the learned Trial Court.

28. The necessary consequence of the setting aside of the

impugned judgment and decree dated 01.05.04 passed by the

learned Trial Court is that the suit filed by the appellant before

the learned Trial Court stands decreed. The appellant is

granted a decree declaring that he has 1/4th share in the suit

property. A decree for rendition of accounts of rents received

and realized by the respondents from the tenants of the shops

in the suit property is also passed in favour of the appellant.

28. The suit is revived before the learned Trial Judge who shall

proceed to appoint a local commissioner with a mandate to

suggest a mode of partition of the property by metes and

bounds as also to hold an inquiry and submit a report pertaining

to the rents realized by the respondents.

29. No costs.

30. LCR be returned.

PRADEEP NANDRAJOG, J.

SIDDHARTH MRIDUL, J.

November 24, 2008 dk