Madras High Court
Sundaram Nadar vs Sukumaran on 4 August, 2000
Equivalent citations: 2000(3)CTC473
ORDER
1. The plaintiff in O.S.No.11 of 1981 on the file of the Subordinate Judge's Court, Kuzhithurai, is the appellant in the second appeal.
2. The parties are father and son. The suit was filed by the father/appellant for declaration of his title and possession and for consequential injunction. His case, as set out in the plaint, is as follows:
The plaintiff has got four sons and one daughter, the defendant/respondent being the youngest son. The plaintiff is an agriculturist and a businessman. He had purchased properties in the name of all his children including the respondent with his own funds. The purchases were made benami for his benefit and he is in possession of all those properties. He owns lorries and cars. The registration certificates in respect of the same are in his name and the other children. The suit property originally belonged to Avadappa Pillai. On his death, in a partition between his widow and his brother, it was obtained by the widow Muthammal. Muthammal executed a gift deed in respect of the suit property in favour of her two sisters and a brother. On 18.9.1978, Muthammal and her donees jointly sold the suit property to the plaintiff and he took possession of the same and continued to be in possession. There are two buildings in the property, and one is used as a storehouse and the other is used as a place of residence by his tapper Rusalayyan. The suit property is a rubber estate. The sale deed was taken in the name of the defendant. The purchase was for Rs.40,000. At the time of negotiation, the plaintiff paid Rs.5,000 and the balance of Rs.35,000 was paid on the date of the sale deed. The entire sale consideration proceeded from him as the defendant/respondent had no source of income. The defendant is only 20 years old. He was an accused in a sessions case and was on bail during the period. He was then staying at Pioneer Lodge in Nagercoil. He had to report twice a day at the Town Police Station, Nagercoil. The plaintiff got the original sale deed and had kept it in his house. They were all living together. In November, 1980, the defendant got married. He went for separate residence from 2.2.1981. He stealthily removed several title deeds, which he is retaining in his custody. Since the defendant started asserting his title to the suit property the suit was necessitated.
3. The defendant resisted the suit contending inter alia as follows:
The suit property was purchased with his own funds. The plaintiff had never purchased any property as benami. The defendant was in exclusive possession and enjoyment of the suit property. He was owning a lorry bearing registration No.KRT 4923. He also owned a car TNK 4109. At the time of the suit he had purchased a lorry KLV 8809 with his own funds. He had studied upto 4th Form. After his education, he entered the services of the plaintiff as a lorry cleaner in 1971. He could not be present before the Sub- Registrar on the date of the sale deed due to the pendency of the sessions case. In fact, the sessions trial commenced only on 18.9.1978. The plaintiff was looking after the affairs of the defendant. The defendant made suitable arrangements for the registration of the sale deed. Rusalayyan was never the tapper in the suit property. He was not residing in the property. Lakshmana Panicker negotiated for the purchase for the defendant only. Only the plaintiff was attempting to take the suit property and the suit was liable to be dismissed.
4. The trial Court on the pleadings, framed the necessary issues. The plaintiff marked Exs.A.1 to A.12 and besides examining himself as P.W.1 examined the tapper Rusalayyan as P.W.2 and Lakshmana Panicker mentioned in the written statement of the defendant as P.W.3 and one Parameswaran Pillai as P.W.4, while on the side of the defendant Exs.B.1 to B.41 were marked. The defendant examined himself as D.W.1 examined one Ayyappan as D.W.2 and Chandran as D.W.3. The trial Court gave a finding that the funds were supplied only the plaintiff for purchase of the property. But, since he had not properly explained the source of acquisition and his intention to establish benami had not been proved, it came to the conclusion that the defendant was not a benamidar but the real owner, and by judgment and decree dated 21.10.1982 dismissed the suit.
5. The plaintiff appealed in A.S.No.199 of 1982 to the District Court, Kanniyakumari at Nagercoil. The lower Appellate Court framed the necessary points for consideration and found that the plaintiff indeed paid the sale consideration, that it was not necessary for him to prove the actual source from which he got the money and that he was the real owner of the property and the defendant was the ostensible owner, but he was not entitled to the relief of declaration of title and possession in view of Ordinance No.2 of 1988 (since become Act) 45 of 1988 - Benami Transactions Prohibition Act. The plaintiff was estopped from pleading benami and so holding the lower Appellate Court by judgment and decree dated 25.10.1988, dismissed the appeal. Aggrieved, the present second appeal has been filed.
6. At the time of admission, the following substantial question of law was framed for decision in the second appeal:
Whether the lower Appellate Court was right in dismissing the suit in view of the Benami Transactions Ordinance 2 of 1988?
7. Mr. T.R. Mani, learned Senior Counsel for the appellant, submitted that the lower Appellate Court had found every aspect of the matter in favour of the plaintiff/appellant and only because of the Ordinance relating to Benami Transactions (since an Act), it dismissed the suit. The learned Senior Counsel submitted that the decision in Mithilesh Kumari v. Prem Behari Khare Sair, had since been overruled by the Supreme Court and it has been held that the Ordinance / Act would not apply to pending proceedings and that it was open to parties to pursue their stand that the transaction was a benami one.
8. Since the decision in Mithilesh Kumari's case, a three judges Bench of the Supreme Court in R.Rajagopala Reddy v. Padmini Chandrasekaran, has held that the Act is not declaratory in nature for these words may, at times be used to introduce new rules of law and the Act in the latter case will only be amending the taw and will not necessarily be retrospective and that regard must be had to the substance rather than form. Mithilesh Kumari's case to the extent it was held that Section 3 is not retrospective, has been affirmed and in other respects where it was held that Section 4 is retroactive, it has been over-ruled. In effect, the Supreme Court has held that future defences of real owners against benami holders have been nullified as are covered by the sweep of Section 4(2) and not others and that rights of parties to a suit would be determined on the basis of rights available to them on the date of filing of suit.
9. In Nand Kishore Mehra v. Sushil Mehra, it has been held that bar under Section 4(1)(2) is not applicable to filing of suit or taking of defence in respect of present or past benami transaction involving the purchase of property by a person in the name of his wife or unmarried daughter but in order to succeed in such a suit or defence he will have to prove that the purchase was not made for the benefit of the wife or the unmarried daughter.
10. In Sankara Hali and Sankara Institute of Philosphy and Culture v. Kishorilal Goenka, it has been held that prohibition of right to recover property held benami is not applicable to pre-Act transactions.
11. In Heirs of Vrajlal J Ganatra v. Heirs of Parshottam S. Shah, , the question arose in a case for declaration of title in respect of land alleged to have been held benami by the defendant pursuant to a sale deed of 1963 and it was held that the question of non-maintainability of the suit did not arise as Section 4(1) operated prospectively.
12. In Pawan Kumar Gupta v. Rochiram Nagdo, the following propositions have been laid down:
Purchasing of property with money provided by ones father or bank held would not render the transaction a benami one. The words 'paid or provided' have to be read disjunctively. The burden of proof is on the person alleging benami, prohibition under Section 3(1) applies prospectively and when the entire evidence is before Court, the burden of proof became insignificant.
13. In Rabti Devi v. Ram Dutt, 1997 (2) SCC 714 the three cases, namely R. Rajagopal Reddy v. Padmini Chandrasekaran, NandKishore Mehra v. Sushil Mehra, and S. Sankara Hali and Sankara Institute of Philosphy & Culture v. Kishorilal Goenka, were all explained, harmonised and affirmed.
14. In Gangacheran v. C. Narayanan, 2000 (II) MLJ 44 (SC) the principle has been reaffirmed that Benami Transactions Act not being retrospective in operation is not applicable to pending suits.
15. From the above, we can safely assume that the Act is not applicable to the present proceedings, the Act having come into existence only in 1988 and the suit itself having been filed in the year 1981. When once this is inevitable, Mr. T.R. Mani, learned Senior Counsel, submitted that the lower Appellate Court as the final court of fact had found that the entire consideration had been provided by the father/plaintiff, that he was in possession of the property, that he was the real owner of the property and the respondent/defendant was only an ostensible owner and therefore the decision reached by the Courts below dismissing the suit has to be set aside.
16. Mr. Peppin Fernando, learned counsel appearing for the defendant, submitted that this Court is entitled to go into the question as to whether the criteria laid down for benami transaction are satisfied, that in view of the decision of a learned single Judge of this Court reported in Dharmalingam Chetty and others v. Madurambal and others, 1987 (II) MLJ 268 that the question of benami transaction is not merely a question of fact, but if a legal conclusion to be arrived at on such proved facts is not proper, then the same can be set right in second appeal.
17. The learned counsel took me through the various documents and the evidence in this case to substantiate his case that the transaction was really not a benami transaction, that the defendant had purchased the property with his own funds, that he had possession of the documents, he also had possession of the properties and that the courts below were clearly in the wrong in reaching a finding against the respondent in this regard.
18. "The word benami is a Persian compound word, made up of be which means without and nam which means name. It means literally without name and denotes a transaction effected by a person without using his own name, but in the name of another. The practice of putting property into a false name, that is, the name of a person other than real owner, is not uncommon. This practice has arisen partly from superstition - some persons and some names being considered lucky, and others unlucky. Partly also the practice is due to a desire to conceal family affairs from public observations. However, many transactions originate in fraud; and many of them which did not so originate, are made use of for a fraudulent purpose; more especially for the purpose of keeping out creditors who are told when they come to execute a decree, that the property belongs to the fictitious owner, and cannot be seized, "markby's Hindu and Mohammedan Law page 103.
A benami transaction is one where one buys property in the name of another, or gratuitously transfers his property to another, without indicating an intention to benefit the other Ranagappa v. Ranagaswami, AIR 1925 Mad. 1005. The benamidar therefore has no beneficial interest in the property or business that stands in his name; he represents in fact the real owner and so far as their relative legal position is concerned, he is a mere trustee for him Gur Narayan v. Sheolal Singh, 1919 (46) IA 1 9 : 46 Cal. 566 .. 575.
In Pitchayya v. Rattamma, AIR 1929 Mad. 268 it was pointed out that he was not a strict trustee, but he was not a mere alias.
19. In Syed Abdul Khader v. Rami Reddy, . in para 26 it is stated as follows:
"Section 82 of the Indian Trust Act, 1882, provides that where properly is transferred to one person for a consideration paid of 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............
The genesis of the concept of benami is that consideration for a transfer must flow from one person and the transfer is taken in the name of the other person and me consideration so flowing for the transfer was not intended to be a gift in favour of the person in whose name the transfer is taken.
20. In Gopeekrist Gosain v. Gungapersaud Gosain, 1854 (6) MIA 53 the Privy Council has observed that "Benami purchase in the names of children, without any intention of advancement, are frequent in India."
21. In Sura Lakshmiah Chetty v. Kothandarama Pillai, AIR 1925 PC 181 : 88 IC 327 : 52.IA 286 it was stated by the Privy Council, as follows:
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."
22. In Guran Ditta v. Ram Ditta, AIR 1928 PC 172 : 109 IC 723 : 55 Cal. 944 the principle laid down in Gopeekrist Gosain's Case, 1854 (6) MIA 53 was reiterated by the Privy Council and the Privy Council further observed that in the case of a benami transaction, there is a resulting trust in favour of the person providing the purchase money.
23. In Sree Meenakshi Mill Ltd., v. C.I.T., , the Supreme Court has observed as follows:
" The word 'benami' is used to denote two classes of transactions which differ from each other in their legal character and incidents. In one sense, it signifies a transaction which is real, as for example, when A sells properties to B but the sale deed mentions X as the purchaser. Here the sale deed itself is genuine, but the real purchaser is B, X being his benamidar. This is the class of transactions which is usually termed as benami. But the word 'benami', is also occasionally used, perhaps not quite accurately, to refer to a sham transaction, as for example, when A purports to sell his property to B without intending that his title should cease or pass to B. the fundamental difference between these two classes of transaction is that whereas in the former there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none such, the transferor continuing to retain the title notwithstanding the execution of the transfer deed. It is only in the former class of cases that it would be necessary, when a dispute arises as to whether the person named in the deed in the real transferee or B, to enquiry into the question as to who paid the consideration for the transfer, X or B. But it the latter class of cases, when the question is whether the transfer is genuine or sham, the point for decision would be, not who paid the consideration but whether any consideration was paid.
24. In S.M. Surasai Balini Debi v. Phanindramohan Majumdar, it has been held:-
"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 factor for establishing the case of benami but the mere proof of the source of the purchase money would not finally establish the benami nature of the defendant's title. Even where the plaintiff purchases property with his own funds in the name of 'B' the surrounding circumstances, and the mode of enjoyment might still indicate that it was intended to be a gift to 'B' and it would then not be a case of benami notwithstanding that the purchase money did not proceed from the defendant. Therefore, as observed in Mayne's Hindu Law (Eleventh Edn.) page 956.
While the source from which the money came is undoubtedly a valuable test, it cannot be considered to be the sole or conclusive criterion. For, me question whether a particular transaction is benami or not, is one of intention and there may be other circumstances to negative the prima facie inference from the fact that the purchase money was supplied by or belonged to another. The portion of the parties, their relation to one another, the motive which could govern their actions and their subsequent conduct may well rebut the presumption."
Even where the benami is established effect will not be given to the real title if the result of doing so would be to violate the provisions of a statute or to work a fraud upon innocent persons."
25. In Jayadayal Poddar v. Mst. Bibi Hazra, the law relating to benami is stated as follows:
"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 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."
The Supreme Court has further observed as follows:
"The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless No.1, viz., the source where the purchase money came, is by far the most important test for determining whether the sale standing in the name of one person, is in reality for the benefit of another."
26. In Gapadibai v. State of Madhya Pradesh, , in order to prove the benami nature of the transaction evidence has to be led to show (i) that the purchaser paid the consideration, (ii) that he had the custody of the sale deed, (iii) that he was in possession of the property, and (iv) the motive for the transaction.
27. In Thakur Bhim Singh v. Thakur Kan Singh, the Supreme Court has observed as follows:
"The principle governing the determination of the question whether a transfer is a benami transaction or not may be summed up thus: (i) the burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction; (ii) 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; (iii) the true character of the transaction is governed by the intention of the person who has contributed the purchase money and (iv) 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.
28. Dealing with the right to property available to real owner vis a vis benamidar, the Supreme Court in Controller of Estate Duty, Lucknow v. Moke Mitra, has held:
"It is but axiomatic that benami transaction does not vest any title in the benamidar but vests it in the real owner. When the benamidar is in possession of the property standing in his 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, 35 Cal. 551 : 35 IA 98, the Judicial Committee quoted with approval the following passage from Mayne's Hindu Law, 7th Edition, 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 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 though the property is in 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. Sheo Lal Singh, AIR 1918 PC 140 : 491C 1 : 46 IA 1, the Judicial Committee referred to the judgment of Sir George Farwell in Bilas Kunwar v. Dasrj Ranjit Singh, AIR 1915 PC 96 : 30 IC 299 : 42 IA 202, 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 no interest at all in the property standing in his name. Where the transaction is once made out to be benami, the court must give effect to the real and not to the nominal title subject to certain exceptions.
29. Thus, from a conspectus of the various authorities referred to above, the relevant considerations with regard to the question of benami are:-
(a) Source of purchase-money,
(b) manner of enjoyment,
(c) consideration flowing for the transfer was not intended to be a gift in favour of the person in whose name the transfer is taken,
(d) custody of title deed,
(e) motive for the transaction,
(f) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar, and
(g) conduct of the parties in dealing with the property after sale.
30. As already noticed, the list indeed is not exhaustive, but the fact remains that the source of purchase-money is the most important test. Vide Pratab Singh v. Sarojini Devi, 1994 Supp. (1) SCC 734.
31. It is also not settled law that the burden of proof is on the person alleging benami.
32. In SM. Surasaibalini Debi v. Phanindra Mohan Majumdar, it has been stated -
" 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."
33. In Bibi Saddiqa Fatima v. Saiyed Mohammad Mahmood Hasan, . the Supreme Court quoted with approval the law enunciated in Gangadara Ayyar v. Subramania Sastrigal, AIR 1949 FC 98 which was as follows:
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 grounds and legal testimony. In the absence of evidence, the apparent title must prevail. It is also well established that in a case where it is asserted that an assignment in the name of one person is in reality for the benefit of another, the real test is the source hence the consideration came and that when it is not possible to obtain evidence which conclusively establishes or rebuts the allegation, the case must be dealt with on reasonable probabilities and legal inferences arising from proved or admitted facts.
While dealing with the question of burden of proof, one must remember a very salutary principle reiterated by this Court in Kalwa Devadattam v. Union of India, .
The question of onus probandi is certainly important in the early stages of a case. It may also assume importance where no evidence at all is led on the question in dispute by either side; in such a contingency the party on whom the onus lies to prove a certain fact must fail. Where however evidence has been led by the contesting parties on the question in issue, abstract considerations of onus are out of place; truth or otherwise of the case must always be adjudged on the evidence led by the parlies."
In Jaydayal Poddar's case, already referred to, the Supreme Court observed 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 adducting legal evidence of a definite character which would either directly prove the fact of 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 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 or transferee in the deed, starts with the initial presumption in his favour that the apparent slate 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 tests, uniformly applicable all situations, can be laid down."
34. In P.Bhima Reddy. v. State of Mysore, (1979 (1) SCC 68) it has been stated -
"The onus to prove that the purchase is benami is on the person who alleges it."
34. This principle has been reiterated in - (1) M. Krishna Reddy v. State Deputy Superintendent of Police, Hyderabad, : (2) Pratap Singh v. Sarojini Devi, 1994 Supp. (1) SCC 794: (3) Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S. Shah, ; and (4) Rabti Devi v. Ram Dutt, .
36. In the following decisions:
1. Rabti Devi v. Ram Dutt, ;
2. Satya Gupta (SMT) Alias Madhu Gupta v. Brijesh Kumar, and
3. Pawan Kumar Gupta v. Rochiram Nagdeo, it has been held that the decision as to whether a particular transaction is a benami transaction or not is a question of fact and the High Court should be loathe to interfere under Section 100, C.P.C. It has been further observed by the Supreme Court and several High Courts in cases that the High Court while exercising jurisdiction under Section 100 CPC 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.
37. The first aspect to be considered is the source of consideration. We have already noticed that the source of purchase money is the most important test, though it is not the sole or conclusive criterion.
38. Mr. Peppin Fernando, learned counsel for the respondent, submitted that the defendant got employed as a cleaner in the appellant's lorry and in course of time he purchased vehicles and also property and the finding by the lower appellate court that the respondent could not have commanded enough funds for the purchase of the property could not be sustained. This aspect is dealt with by the lower Appellate Court in paragraph 12 of its judgment. The respondent had sated that he had arranged for funds with one Govindan, and obtained a sum of Rs.38,000 and this amount he entrusted with D.W. 3 Chandran for being handed over to the vendor. The said Govindan, who, it was claimed, had advanced moneys to the respondent, was not examined by him. The written statement also has not mentioned the name of Govindan and the lower Appellate Court held that D.W.3 was a procured witness for the purpose of this case and his evidence could not be accepted and acted upon. So far as the monetary capacity of the respondent is concerned, he had produced Ex.B.19 - Pass Book relating to his account in Tamil Nadu Mercantile Bank, Nagercoil, and it was found that during the relevant period his bank balance was next to nothing. Ex.B.20 is another Pass Book of the respondent in respect of his account with Syndicate Bank. The account itself had been opened only in November, 1980 long after the suit sale. Thus, the capacity of the respondent to raise funds for purchase of property was practically nil. On the other hand, the appellant had spoken to his having withdrawn moneys from the Bank for completing the sale transaction. Ex.A.10 is the appellant's Pass Book in respect of his account in Union Bank of India, Marthandam. It clearly shows that a sum of Rs.35,000 had been withdrawn. Ex.A.11 is the Savings Bank Pass Book in the name of the appellant's wife Thangammal and the appellant. It is seen that a sum of Rs.55,000 had been withdrawn during the relevant period. Ex.A.5 shows that a Demand Draft was obtained on 18.9.1979 in the name of the vendors for a sum of Rs.75,000. Thus, the appellant has established that the entire consideration for the purchase of the property emanated from him and that no portion of the same came from the respondent.
One of the important criteria to be satisfied, has indeed been satisfied in the instant case. The source of purchase money has been conclusively proved to have gone from the appellant.
39. So far as possession is concerned, Mr. Peppin Fernando, learned counsel for the respondent submitted that the original of the sale deed had been produced by the respondent and the custody of the title deed is one of the important factors to be taken into consideration in the matter of deciding benami and inasmuch as the respondent had produced the title deed from his custody, his case against benami should be accepted. It is the case of the appellant that the respondent was living with him, that he got married in November, 1980 and in February 1981 he left the appellant and set up separate residence elsewhere and while shifting his residence, he had removed the title deeds. This aspect of the matter has been dealt with by the lower Appellate Court in paragraph 16 and the explanation offered by the appellant had been accepted by the lower Appellate Court as plausible. I do not think that there is any material available to take a different view with regard to custody of the documents.
41. The learned counsel relied on a judgment of the Madhya Pradesh High Court reported in The State of Madhya Pradesh v. Khan Bahadur, and submitted that when possession is found in favour of the respondent and the appellant's case that he was in possession was found to be not proved, then under Section 34 of the Specific Relief Act the suit without seeking recovery of possession was not maintainable.
42. The learned counsel also relied on a judgment of this Court reported in Cheventhipaul Nadar v. Srinivasa Nadar, 1982 (II) MLJ 34 in support of his stand.
43. The learned counsel also argued that if only the evidence of P.W.2 had been rejected by the lower Appellate Court as was done by the trial Court then the plaintiff's case regarding possession should have been rejected. The learned counsel also submitted that the respondent had produced several documents to show his possession.
44. The teamed counsel also relied on Smt. Gangabai v. Smt Chhabubai, for the proposition that under Section 92(1) of the Evidence Act there is a bar to adducing oral evidence against the terms of the document and in the present case Ex.B.31 clearly showed possession with the respondent and the oral evidence contrary to the terms of Ex.B.31 should have been rejected. The learned counsel also relied on various kist receipts and property tax receipts filed by the respondent in support of his contention that the lower Appellate Court was in error in finding possession with the appellant. As rightly pointed out by the lower Appellate Court when the very sale deed stands in the name of the respondent and at the time the two documents came into existence there was cordiality between the parties and in Ex.B.31 the actual state of affairs with reference to Ex.B.33 had been incorporated and much cannot be made of this. Most of the documents had been removed by the respondent in February, 1981 when he fell out with his parents and left their home and the production of these documents cannot in any way advance the case of the respondent. When once it is found that the appellant alone was in possession of the suit property, the reliance on Section 34 of the Specific Relief Act is misconceived. It has, indeed, been held in Cheventhipaul Nadar v. Srinivasar Nadar, 1982 (II) MLJ 348 that in a case by the plaintiff for declaration of title and injunction if the plaintiff is found to be out of possession of the disputed items and if he does not seek recovery of possession, the suit cannot be maintained.
45. The learned counsel also relied on the decision of the Calcutta High Court in Kalipada Mondal v. Kali Charan Mondal, AIR (36) 1949 Cal. 204 and also the following decisions:
1. M.K. Kappai v. John, 2. Ram Saran v. Ganga Devi, . Kumud Ranjan Banerjee v. Manabendra Banerjee, for the same proposition.
46. At the risk of repetition, inasmuch as it is has been found that the respondent had not proved his possession and on the contrary the appellant had been found to be in possession, the decisions relied on by the learned counsel for the respondent cannot be applied to the facts of the present case.
47. No doubt, in the decision of the Madhya Pradesh High Court it has been held that in a second appeal new point involving pure question of law can be allowed to be raised for the first time. The respondent has been allowed to raise the point relating to the provisions of Sec.34 of the Specific Relief Act and it has been decided against the respondent.
48. In Kalipada Mondal v. Kali Charan, AIR 1949 Cal.204 dealing with Sec:100, CPC a learned single Judge of the Calcutta High Court has held that the propriety of the reasoning for the finding of fact cannot be canvassed though the question as to whether proper legal principles have been applied can be considered in the second appeal.
49. In Chellammal v. Valliammal, this Court permitted the appellant in the second appeal to argue a pure question of law in second appeal though the same had not been raised in any of the Courts below and not even in the grounds of appeal.
50. We have already noticed that in Satya Gupta (smt) Alias Madhu Gupta v. Brijesh Kumar, it has been held that merely because a different view was possible on a question of act, the High Court would not be justified in interfering with the finding reached by the lower Appellate Court on a question of fact. I have already referred to a number of decisions on this point that whether a particular property had been purchased benami or not, is a question of fact. No doubt, in one of the decisions relied on by the learned counsel in Dharmalinga Chetty v. Mathurambal, 1987 (2) MLJ 268 (Sengottuvelan, J) it has been held that the question relating to benami is a question of law. Having regard to the decisions of the Supreme Court, the same cannot be stated to lay down the correct law.
51. There is also no material to show that the consideration flowing for the transfer was intended to be a gift in favour of the respondent. There is no motive alleged for purchasing the property in the name of the respondent/and therefore this criterion pales into insignificance:
52. In view of the discussion above, the substantial question of law raised is answered in favour of the appellant. The second appeal will stand allowed. However, there will be no order as to costs.