PETITIONER:
SMT. SATYA GUPTA ALIAS MADHU GUPTA
Vs.
RESPONDENT:
BRIJESH KUMAR
DATE OF JUDGMENT: 04/08/1998
BENCH:
K. VENKATASWAMI
ACT
HEADNOTE
JUDGMENT
JUDGMENTK. Venkataswami, J.
This appeal is preferred against the judgment and decree dated 14.2.83 of the Allahabad High Court in Second Appeal No. 1845 of 1974. Brief facts giving rise to this appeal by special leave are the following :-
The respondent herein filed an Original Suit No. 43 of 1962 in the Court of the Second Civil Judge. Meerut, for partitioning his half share in the Property described in the plaint and for rendition of account in respect of the same. The appellant was the defendant in the said suit, now representated by legal representatives as she died pending this appeal. For easy appreciation, we refer the parties as plaintiff (respondent herein) and defendant (deceased appellant) in this judgment. On Battu Mal was the husband of the defendant. The said Battu Mal purchased the suit property under a Sale Deed dated 9.5.53 for a sum of Rs. 17,000/- in the joint names of himself and the plaintiff, who was then a minor aged 16 years. The said Battu Mal was murdered in June, 1956. The plaintiff was prosecuted for the murder of said Battu Mal and was convicted and sentenced to imprisonment and factually when the suit was filed he was in prison. The plaintiff was the son of a cousin of the said Battu Mal. Battu Mal had no issue.
In the plaint, though a claim was made that the plaintiff was the adopted son of Battu Mal, the suit was based not on that ground but expressly on the basis that Battu Mal purchased half of the property for him (the plaintiff).
The suit was resisted by filing the Written Statement. It was, inter alia, stated in the Written Statement that there was no disclosure in the plaint as to how the property in dispute belonged to the plaintiff and Battu Mal equally. It was also stated that the said Battu Mal purchased the suit property exclusively for him by paying the entire sale consideration. There was no intention on the part of Battu Mal to share the property or gift half share to the plaintiff when the name of the plaintiff was jointly included in the sale deed.
The Trial Court found that the entire sale consideration came from the deceased Battu Mal and the plaintiff did not contribute any money towards the purchase of the suit property. The Trial Court also found that the defendant has discharged the initial burden to show that the sale deed in the joint name of the plaintiff was only a Benami transaction. After finding that the entire sale consideration was advanced by the said Battu Mal, the Trial Court observed that the burden was on the e plaintiff to establish that the deceased Battu Mal intended to gift away half of the property purchased by him to the plaintiff. The Trial Court has noticed the fact that the plaintiff, except alleging that half of the suit property belonged to him, had not disclosed how and on what basis such claim was made in the plaint. After discussing the evidence of P.Ws. 1 to 3 and after noticing that the defendant had not entered in the witness box but tendered evidence through her brothers son as D.W. 1, came to the conclusion that the deceased Battu Mal, in fact, intended to pay half of the consideration of the sale deed for the benefit of the plaintiff. Consequently, the Trial Court decreed the suit of the plaintiff for half share in the suit property and for rendition of accounts for past three years before the institution of the suit.
The defendants, aggrieved by the judgment of the Trial Court, preferred an appeal to the Additional District Judge, Meerut. The learned District Judge, while confirming the finding of the Trial Court that the entire sale consideration was given by the deceased Battu Mal, expressed his inability to endorse the Trial Court’s finding that the deceased Battu Mal intended that the property should b e of the plaintiff as well. The learned District Judge took note of the fact that in the Plaint it was nowhere averred that Battu Mal intended the purchase of the suit house to be for the benefit of the plaintiff as well. The Lower Appellate Court agreed with the contention advanced on behalf of the defendant that if there was any truth in the claim of the plaintiff that Battu Mal really intended to s hare the property with the plaintiff, that should have been pleaded expressly in the plaint itself. After referring to the pleadings, the Lower Appellate Court examined in detail the oral evidence given on behalf of the plaintiff. The Lower Appellate Court found that ‘the plaintiff’s evidence is, thus, extremely meagre and unsatisfactory to rebut the presumption that the sale deed was obtained benami by Shri Battu Mal’. The Lower Appellate Court has also given reasons in the judgment why it differed with the conclusions reached by the Trial Court on this point. The Lower Appellate Court observed as follows :-
"In the present case, the plaintiff
was not the son (natural or
adopted) of Sri Battu Mal. The
plaintiff was the son of Sri Battu
Mal’s cousin and from the mere fact
that the plaintiff lived with and
was loved by Sri Battu Mal, we
cannot conclude that it was
intended to purchase the house for
the plaintiff’s benefit."
After referring to a judgment of the Nagpur High Court in Gopal Trimbak Bhate Vs. Keshoosa Vishnoosa Lad [AIR 1936 Nagpur 185], the Lower Appellate Court held as follows :-
"Relying on the case of 6 M I A 53
(P.C.) it was held that where a
Hindu father purchases property out
of his own money in the name of his
son, the presumption is that he
intended to make the purchase for
his own benefit and not for the
benefit of his
son................................
...I need hardly emphasize that the
plaintiff being not the son of Sri
Battu Mal could not be held in
greater love than a son. His case
is, therefore, on no higher footing
and in view of law laid down in the
above mentioned cases, I must hold
that the sale was obtained benami
by Sri Battu Mal. There should have
been something more than themere
existence of love too rebut the
presumption of the transaction
being benami."
In the light of the above conclusion, the Lower Appellate Court allowed the appeal and consequently dismissed the suit filed by the plaintiff.
The plaintiff, aggrieved by the reversing judgement of the Lower Appellate Court, preferred a Second Appeal to the High Court. The High Court, after going into the evidence and reappreciating the same, differed from the conclusions reached on facts by the Lower Appellate Court. The High Court observed as follows :-
"I am of opinion that the proper
inference to be drawn in this case
on the aforesaid facts and
circumstances was that Lala Battu
Mal intended to make the plaintiff
a joint owner of the property with
him and that it was not a case of
Benami transaction."
The High Court initially delivered the judgment without hearing the counsel for the defendant. Later on, on an application to recall the judgment passed without hearing the defendant’s counsel, the learned Judge, after hearing learned counsel for the defendant, confirmed the earlier judgment by referring to passages from it.
When the learned counsel, appearing for the defendant before the High Court, invited its attention to the cases decided by the Privy Council and of this Court, the High Court, distinguishing those cases, held as follows :-
"I then took note of the fact that
the theory of advancement said not
to apply in India because the habit
of making Benami purchase was
rempant among ‘the natives’ which
was the name given to us by the
British. It is said that the theory
applied only in England. In then
noticed the change that has over
taken our country since the first
pronouncement of the Privy Council
on which the pronouncements of the
Privy Council in Guran Ditta and
Anr. Vs. T. Ram Ditta [IAR 1928
P.C. 172] and Lakshmiah Vs.
Kothandarama [AIR 1925 P.C. 1981]
were based. I observed that the
presumptions, which could be raised
more than a century ago, can
longer be raised in the present day
social conditions and the said
decisions of the Privy Council must
accordingly be applied with some
caution. I then took note of the
law declared by the Supreme Curt in
Bhim Singh Vs. Kan SIngh [AIR 1980
S.C. 727], wherein the true test fr
determining whether a transaction
was Benami or not was laid down to
be that of intention and instead of
presuming that the purchase made by
Lala Battu Mal was Benami in so far
as the plaintiff was concerned, and
that the theory of advancement not
being applicable in India, the
plaintiff could not be said to have
had an equal share in the property
on account of his name having been
joined as a co-purchaser by Lala
Battu Mal unless it were proved
that Lala Battu Mal had, in fact,
made a gift of an equal share in
the property when he purchased it
in the plaintiff’s name, I looked
at the surrounding facts and
circumstances in an attempt to find
out the intention, with which Lala
Battu Mal joined the plaintiff’s
name as a co-purchaser with him in
the sale deed of the property in
question and on that test according
to the view taken by me, the
surrounding facts and circumstances
all lead t the inference that when
Lala Battu Mal joined the plaintiff
as a co-purchaser with him and
described him as his adopted son
living under his guardianship, he
intended to make the plaintiff a
joint equal owner in the property
with him."
Ultimately, the High Court held as
follows :-
"It rested n the facts and
circumstances brought out by the
evidence on the facts on the
record. One fact which weigh ed
with me considerably was the fact
that the purchase was made by Lala
Battu Mal in the joint names f
himself and the plaintiff and that
there was nothing secretive about
the transaction."
On the basis of the said conclusions, the High Court allowed the Second Appeal, set aside the judgment of the Lower Appellate Court and decreed the suit of t he plaintiff.
The defendant aggrieved by the judgment of the High Court has filed this appeal.
Mr. Salve, learned senior counsel appearing for the appellant, submitted that the High Court went wrong in reappreciating the oral evidence and also distinguishing the case which are directly on point and allowing the Second Appeal. He placed reliance on Guran Ditta’s case (supra), which has been referred to with approval in Bhim Singh’s case (supra) by this Court. According to the learned counsel, in the light of law settled in these cases, the Judgment of the High Court is liable to be set aside and that of the Lower Appellate Court has to be restored.
Mr. Rakesh K. Sharma, learned counsel appearing for the plaintiff, supporting the judgment of the High Court, submitted that on the facts of this case the High Curt was right in distinguishing the cases relied on by the learned counsel for the defendant.
We have considered the rival submissions.
At the outset, we would like to point out that the findings on facts by the Lower Appellate Court as a final Court on facts, are based on appreciation of evidence and the same cannot be treated as perverse or based on no evidence. That being the position, were] are of the view that the High Court, after reappreciating the evidence and without finding that the conclusions reached by the Lower Appellate Court were not based on the evidence, reversed the conclusions on facts on the ground that the view taken by it was also a possible view n the facts. The High Court, it is well settled, while exercising jurisdiction under Section 100, C.P.C., cannot reverse the findings of the Lower Appellate Court on facts merely on the ground that on the facts found by the Lower Appellate Court another view was possible.
In Bhim Singh’s case (supra), this Curt, after considering the number of cases on an identical issue, held as follows ;-
"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 t he 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."
Again, in The Controller of Estate Duty, Lucknow Vs. Aloke Mitra [1981 (1) SCR 943], this Court considered the similar issue and held as follows :-
"The law in this matter is not in
doubt and is authoritatively stated
by a long line of decisions of the
Privy Council starting from the
well known case of Gopeekrist
Gosain V. Gungapersaud Gosain to
Sura Lakshmiah Chetty V.
Kothandarama Pillai and of this
Court in Shree Meenakshi Mills Ltd.
V. CIT. As observed by Knight Bruce
L.J. in Gopeekrist Gosain’s case,
the doctrine of advancement is not
applicable in India, so as to raise
the question of a resulting trust.
When a property is purchased by a
husband in the name of his wife, or
by a father in the name of his son,
it must be presumed that they are
benamidars, and if they claim it as
their own by alleging that the
husband or the father intended to
make a gift f the property to them,
the onus rests upon them to
establish such a gift. In Sura
Lakshmiah Chetty’s case, the law
was stated with clarity by Sir John
Edge in these words ;
"There can be no doubt now that a
purchase in India by a native of
India of property in India in the
name of his wife unexplained by
other proved or admitted facts is
to be regarded as a benami
transaction, by which the
beneficial interest in the property
is in the husband, although the
ostensible title is in the wife."
It is but axiomatic that a benami
transaction does not vest any title
in the banamidar but vests it in
the real owner. When the benamidar
is in possession of the property
standing in h is name, he is in a
sense the trustee for the real
owner, he is only a name-lender or
an alias for the real owner. In
Petheperumal Chetty v. Muniandy
Servai, the Judicial Committee
quoted with approval the following
passage from Mayne’s Hindu Law 7th
ed., para 446 :
"Where a transaction is once
made out to be a mere benami,
it is evident that the
benamidar absolutely
disappears from the title. His
name is simply an alias for
that of the person
beneficially interested."
The cardinal distinction between a
trustee known to English law and a
benamidar lies in the fact that a
trustee is the legal owner of the
property standing in his name and
cestui que trust is only a
beneficial owner, whereas in the
case of a benami transaction the
real owner has got the legal title
through the property is i the name
of the benamidar. It is well
settled that the real owner can
deal with the property without
reference to the latter. In Gur
Narayan V. Shoo Lal Singh, the
Judicial Committee referred to the
judgment of Sir George Farwell in
Mst. Bilas Kunwar v. Dasraj Ranjit
Singh, where it was observed that a
benami transaction had a curious
resemblance to the doctrine of
English law that the trust of the
legal estate results to the man who
pays the purchase-money, and went
on to say :
".....the benamidar has not
beneficial interest in the
property or business that
stands in his name; he
represents, in fact, the real
owner, and s far as their
relative legal position is
concerned he is a mere trustee
for him."
In Guran Ditta V. Ram, Ditta, the
judicial Committee reiterated the
principle laid down in Gopeekrist
Gosain’s case and observed that in
case of a benami transaction, there
is a resulting trust in favour of t
he person providing the purchase
money."
In the light of the above exposition of law by this Court and in the light of the findings of the Lower Appellate Court, the judgment of the High Court, on reappreciation of evidence, cannot be upheld. We have noticed earlier the vagueness in the plaint about nondisclosure of how and on what basis the plaintiff claimed partition in the suit property. We have also noticed that the Trial Court and the Lower Appellate Court noticed this aspect. The Lower Appellate Court also found that the plaintiff’s evidence was extremely meagre and unsatisfactory. Taking all factors into consideration, the Lower Appellate Court found that Battu Mal did not intend to purchase the house for the Plaintiff’s benefit. This finding has been upset by the High Court illegally by reappreciating the evidence. This is not permissible.
The High Court was not justified in ignoring/distinguishing the law laid down by this Court in Bhim Singh’s case without properly appreciating the ratio of that decision.
In the circumstances, we set aside the judgment of the High Court under appeal and restore that of the Lower Appellate Court in First Appeal No. 130 of 1963.
In the result, the appeal succeeds and is allowed accordingly with no order as to costs.