Calcutta High Court
Smt. Usha Bhar vs Sanat Kumar Bhar on 29 November, 2002
Equivalent citations: [2004]135TAXMAN526(CAL)
Author: D.K. Seth
Bench: D.K. Seth
JUDGMENT D.K. Seth, J.
Facts This first appeal is directed against the judgment and decree dated 6-1-1993 passed by the learned Judge, City Civil Court, 6th Bench in Title Suit No. 2358 of 1981. The respondent/ plaintiff filed a suit for declaration and partition against the appellants. The suit property stands in the name of the defendant No. 1. It is claimed that the property belonged to the father of the plaintiff and the defendant Nos. 2, 3 and 4 and husband of the defendant No. 1, the mother. The father purchased the property in the benami of the other (defendant No. 1). The father had business. Out of the income of such business, the father acquired several properties including the one in dispute. It was attempted to show that the father had sufficient means and the mother had none.
1.1 The defendant Nos. 1, 2 and 4 had contested the suit by filing a joint written statement. According to them, the defendant No. 1 mother purchased the property out of her stridhan. The father of the defendant No. 1 had contributed funds to her. She had obtained advance from the tenants. She also secured money by selling her share in some property. A suit for eviction was filed by the defendant No. 1 against the plaintiff. The present suit was a counter-blast thereto.
1.2 The plaintiff examined himself and three other witnesses. The defendant examined herself alone, The learned trial Judge after having considered the evidence had decreed the suit ex parte against the defendant No. 3 and on contest against other defendants declaring 1/5th share of the plaintiff and each of the parties in the suit property.
The case and the evidence:
2. Admittedly, the property was purchased on 1-9-1942 the name of the defendant No. 1 by a registered deed of conveyance from Calcutta Improvement Trust for a consideration of Rs. 10,797 paid in five instalments. The 1/4th undivided share of a building at Baral Patra Lane was purchased in the name of the defendant No. 1 in 1945 along with the other brothers of the father. According to the plaintiff, the building was constructed at different stages right from 1944-45. It was completed in 1963. Whereas the defendant No. 1 had alleged that the construction was started in 1943 and completed in 1980. The plaintiff sought to allege that his father had acquired a sum of Rs. 11,000 by selling a land in 1958. This was alleged to be a vacant land purchased by the father in 1948. The plaintiff has not proved the said sale by any cogent evidence except making a bald statement. On this point, no suggestion was given to the defendant No. 1 at the time of her examination. Therefore, this fact of finance obtained by the father does not seem to have been proved. Admittedly, the 1/4th share in Baral Para property was sold in 1951 for a sum of Rs. 800. The plaintiff alleges that Baral Para property was purchased by the father in the benami of the mother whereas the defendant No. 1 claims that the property was purchased by her. She has alleged to have received advance from her tenants. But this was not proved by cogent evidence by the defendant No. 1. According to her, the building was completed in 1980. She had attempted to explain the source of income. She contended that the maintenance for the family was being borne by her husband whereas she purchased the property out of the money given to her by her father and the construction was made by her own fund.
2.1 The plaintiff had sought to prove that the father had a business from which he had substantial income. The father used to pay sales tax. But the payment of sales tax has not been proved. The exhibits through which payment of sales tax by the firm of which the father of the plaintiff was a partner, however, was admitted by the defendant No. 1. But the same does not seem to have been proved by the evidence of the officer (PW 4) of the Sales Tax Department. The exhibits do not disclose that the partnership firm of the father of the plaintiff was registered dealer or that sales tax was paid by him. The extent of the business and construction of the house was sought to be proved by the plaintiff through the evidence of PW 2 and PW 3. One had claimed himself to be the son of the partner of the father of the plaintiff and the other the son of the contractor, who alleged to have constructed the house. Admittedly, the PW 1, plaintiff, was born on 2-9-1944. He admitted to be a school student in 1958 and as such he had no personal knowledge about the family affairs. Therefore, his evidence cannot have much importance unless supported by other evidences. PW 2 admitted that the firm was established by his father but it was not known to him whether Sridam Bhar (father of the plaintiff) engaged the firm for the construction of the building or Sridam Bhar used to visit the firm when the witness's father was alive. He had no independent knowledge about the contract given by Sridam for construction of the house. Receipts were issued in the name of Smt. Usha Bhar showing payment of construction. However, he wanted to assert that the payments were made by Sridam, though the receipts were issued in the name of the defendant No. 1. The construction was complete in 1943. However, in cross-examination, he admitted that the firm was constituted into a partnership in 1967 and that in the society female members do not come out. He also admitted that it was not possible for him to ascertain wherefrom the money came or whether the money was actually paid by Sridam or the defendant No. 1. However, the file could not be traced. Therefore, relying on this evidence, it is very difficult to prove the case of the plaintiff. The PW 3 was 56 years in 1992. Therefore, it is not possible to state anything in respect of the period up to 1954 when he would be of 18 years. He admitted that the said business continued till 1954-55 when he was a minor. His evidence is simply his personal opinion. Therefore, the evidence of this witness also does not help much in establishing the case of the plaintiff.
Benami transaction : The principle
3. In a suit claiming a property as Benami, there must be cogent and sufficient evidence to conclude that the apparent is not the real. 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 to prove so. Such burden has to be strictly discharged through legal evidence of definite character. Such evidences 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 serious onus that rests on him. The difficulty would not justify the acceptance of mere conjecture or surmise as a substitute for proof. 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 could 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. There have been various decisions by different High Courts, and the Supreme Court on these questions. By now these propositions are well settled through those decisions. In order to determine whether a transaction was or is a benami one, the following guidelines may be followed:
(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.
3.1 We may cite Jaydayal Poddar v. Mst. Bibi Hazra ; Amit Mukherjee v. Sm. Bibhabati Dasi and Krishnanand Agnihotri v. State of Madhya Pradesh for the above proposition.
3.2 Mt. Bilas Kunwar v. Desraj Ranjit Singh AIR 1915 PC 96, the Privy Council had laid down that where a purchase is made in the name of wife, the natural inference is that the purchase is a benami transaction; a dealing common to Hindus and Mohammadans alike. It has 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 this again follows the analogy of Common Law, that where a feoffment is made without consideration the use results to the feoffer. The exception in English law by way of advancement in favour of wife or child does not apply in India, but the relationship is a circumstance which is taken into consideration in India in determining whether the transaction is benami or not. The criterion in these cases in India is to consider from what source the money comes with which the purchase money is paid. In this case the decisions in DhurmDas Pandey v. Mt. Shama Soondari Dibiah 3 MIA 229 and Gopeekrist Gosain v. Gungapersand Gosain 6 MIA 53 referred to.
3.3 The observation by the Privy Council has to be tested in the light of the principle as settled by the Supreme Court. All purchases in the name of the wife are not benami. It is only those purchases, which would satisfy the tests laid down above can be treated as benami.
3.4 In the absence of any evidence as to who supplied the consideration money, it cannot be presumed that the consideration money was advanced by the husband. The party asserting has to affirmatively prove that the transaction was not real - Jawahar v. Askara 22 CLJ 27; Modadugu Perayya v. Peroli Venkayamma AIR 1924 Mad. 770; Gobind Ram v. Sanhai 12 Bom 270; Nauhi Jan v. Bhuri 30 All. 321. In Hindu law, there is no presumption that the transaction standing in the name of the wife is the husband's transaction. There is no presumption one-way or the other -Chowdrani v. Tarni 8 Cal. 545; Manada Sundari Debi v. Mahananda Sarnakar 2 CWN 367; Bengal Coal Co. Ltd. v. Sita Ram Chatterjee . In the case of property purchased and standing in the name of a Hindu woman when there is no suggestion that the husband of the woman had any creditor, but, on the other hand, there was positive evidence that the woman herself had some means of her own, the onus of proving that it has been purchased with the funds of the husband bemani in her name is, in the first instance, on the person pleading the same. Mere suspicion that the money of the husband might have been utilised for the purchase will not suffice to establish that the purchase was benami. Even in case where there is no positive evidence that the money was contributed by the husband and not the wife, this will not conclude the matter as to his benami, though that is an important criterion -Chittaluri Sitamma v. Saphar Sitapatirao AIR 1938 Mad. 8 at pp. 10- 11. There can be no doubt that when a plea of benami is taken, the ostensible title cannot be displaced except on clear and cogent proof of benami character. Several relevant circumstances bear on the question, but the source of the purchase money has always been considered to be of primary importance. The onus of proof is the same in the case of sale deed standing in the name of female. There is no presumption in law that merely because the female had her husband at the time of purchase, the sale deed must be presumed to be benami for the husband - Shiv Kumari v. Subudhi .
The principle and the case
4. Now, therefore, let us examine having regard to the materials placed before us how far the tests can be satisfied so far as the present case is concerned. Admittedly, there is no proof with regard to the motive of the purchase by the father in the name of the mother. Sridam was residing separately from his other brothers. He was carrying on business allegedly independent of his brothers. There is no allegation that Sridam was a member of the joint family and, therefore, in order to avoid his brothers, he had purchased the property in the name of the wife. Even Baral Para land was purchased along with the brothers in the name of the defendant No. 1 having distinct 1/4th share which was sold by her in 1951. No jointness was ever claimed by Sridam with his brothers. Therefore, no motive has at all sought to be ascertained in this case for which Sridam could have decided to purchase the property in the benami of the defendant No. 1. Admittedly, the defendant No. 1 was always in possession of the property. The rent receipts were issued in the name of the defendant No. 1 to the tenants of the property. The tax receipts show that tax was paid by the defendant No. 1 in respect of the property. The deed was registered in the name of the defendant No. 1. The land was applied for and allotted in the name of the defendant No. 1. Admittedly, she was always in possession of the property. Since 1943, no one had ever claimed possession against her. Even till death, Sridam, the father had never whispered about benami transaction. He did not make any disposition of his property in any manner whatsoever. There is no evidence to show that Sridam had even asserted any right in respect of the property. Even after the death of the father (Sridam) the defendant No. 1 is actively supported by defendant Nos. 2 and 4 viz., the other brother and sister of the plaintiff. The remaining sister, defendant No. 3, did neither support the plaintiff nor the defendant by her absence. PW 1 had never stated that his father had told him that the property was in the benami of the defendant No. 1. Thus, the conduct of the parties does not indicate anything towards benami transaction. The defendant No.1 always asserted the property to be her own property and exercised all rights or possession in respect of the property. No one had disputed the possession of the defendant No.1 in respect of the property.
4.1 Admittedly, the relation between the parties was husband and wife. There might be every likelihood in purchasing the property in the benami of the wife. But this relationship between the parties is not the sole determining factor, as observed earlier. It has to be tested on the guidelines having regard to the materials placed before us. The custody of the title deed came from the defendant No. 1. It has not been proved that the document was in the custody of the father. Therefore, there is nothing to disbelieve that the custody of the title deed after the sale was with the defendant No. 1. As discussed above, the conduct of the parties also does not indicate about the benami character of the transaction. Thus, having regard to the facts and circumstances of the case and the materials placed before us, we find none of the tests mentioned above seem to have been satisfied in the present case except the source of the money out of which the property was purchased, which we shall examine latter. Since the relationship between the parties was husband and wife, therefore, if the source can be traced out from the fund of the father, then having regard to the relationship, we may come to the conclusion that the properly was purchased in the benami even though the motive is not proved or even though there are some fluid situation with regard to the conduct of the parties or even custody of the document. All these factors may be superseded by the relationship between the parties if the source can be traced from the husband.
4.2 Now, therefore, let us examine whether the plaintiff was able to establish that the fund for initial purchase came from the father and that the money by which the construction was made was also funded by the father. The plaintiff can be expected to succeed in such a case if he has been able to discharge his burden strictly through legal evidence of definite character, which would unerringly and reasonably raise inference of the fact of benami. Unless the burden is so discharged, the defendant is riot called upon to prove it. But the question being a pure question of fact and is so interrelated and interwoven, it would be, necessary to look into the evidence of the defendants, It is to be seen that how far the evidence of the defendants would help the plaintiff it establishing his case. The evidence is to be balanced and reconciled in order to arrive at a correct conclusion having regard to the complicated nature of the question required to be determined. It is a question of intention between the parties, which is to be gathered from the materials placed before us. The question of intention would gain importance if the fund by which the transaction was carried out could be traced.
4.3 The PW1 himself admitted to be a minor and did not claim any knowledge with regard to the family affairs. Therefore, his evidence has to be weighed with a little caution. It cannot be accepted on its face value. It requires corroboration. Such corroboration may be found out either from the exhibits or from the oral evidence of the other witnesses of the plaintiff or from the evidence of the defence as the case may be. Therefore, even on his statement, the plaintiff has not been able to establish that his father had a business and he used to pay income-tax or:, sale tax. As discussed above, there is nothing to prove that the sale tax was paid in respect of the business of the father. Even then non-payment of income-tax would not be sufficient to hold that the father had no sufficient income out of the business. The evidence of PW 3 also cannot he relied upon so far as the father's income from the partnership business is concerned. No document has been proved. PW 3 himself admitted that the said business continued till 1954-55 when he was a minor. Therefore, no reliance can be placed on his evidence with regard thereto. Thus, plaintiff's evidence does not find corroboration so as to establish the case. We could have simply throw out his case on the basis of this evidence with regard to the source of money. But defendant No. 1 in her deposition had admitted that the father had a business and that the father used to maintain the day-to-day expenses for maintaining the family. In her deposition, she asserted that for the maintenance of the family, the entire expenses were met by her husband. The entire income received by her as rent from the tenants had accumulated to provide funds for construction, which were met at stages. According to her, the last construction was made in 1980. Sridam died of 4-7-1964. Therefore, the cost of construction after 1964 cannot be borne by Sridam. The plaintiff had never contended that he had contributed any amount for the construction. It appears that four deeds of lease were executed in 1962 by the defendant No. 1, which are exhibit B series. Admittedly, the defendant No. 1 used to get rent out of the property. Admittedly, there were tenants in the property. If Sridam used to meet the expenses of the maintenance of the family, then there is every likelihood of accumulation of these rents. Though, there is no direct proof that she had received advances from the tenants, but there were four deeds of lease with the tenants for a period of 21 years. Though there is no indication that any advance was made by the lessees yet having regard to the rate of rent, it might be a case that such lease was executed after having received some advances, which cannot be ruled out when asserted by the defendant No. 1 herself, a lady of 70 years. In the absence of any proof of funding the purchase by Sridam having regard to the facts and circumstances of the case, it is very difficult to disbelieve the defendant No. 1 that she received funds from her father, though it can be said that the father was not in a position to fund her daughter. But in those days, it was not very uncommon of payment and receipt of dowry at the time of marriage. The father was head clerk in Shaw Wallace & Co., a very reputed company in those days, in the absence of any definite evidence, it is difficult to rule out that the father of the defendant No. 1 had no means to fund her daughter or pay dowry.
The banking habit did not develop in those days. The marriage took place in 1940. The property was purchased in 1942. The construction started in 1943. The deed of sale in the name of the defendant No. 1 is more than 30 years old. Therefore, the evidence need be of definite character and of substance. As discussed above, we do not find that the evidence available on record do have a definite character to lead us to hold that the circumstances established unerringly and reasonably a benami transaction by drawing inference from the same. The evidence that was led does not seriously justify the existence of the allegation. The plaintiff has not been able to explode the initial presumption that the followed the registration of the document in the name of the defendant No. 1 that the apparent is real.
4.4 Having regard to the facts as discussed above, we are unable to agree with the conclusion of the learned trial court that the transaction was a benami one. Reliance was placed by the learned counsel for the plaintiff/ respondent on Girindra Nath Mukherjee v. Soumen Mukherjee AIR 1988 Cal 375. This decision had laid down the principles on which a property can be treated to a benami one, but applying the tests laid down therein, we do not find, having regard to the facts and circumstances of the case, that this case also satisfies those tests. With regard to the proposition, there cannot be of any doubt. But every proposition has to be applied in the facts and circumstances of each case. Having regard to the present facts, in our view, the principle propounded in the said decision cannot lead us to hold in favour of the plaintiff.
Section 3(2), Act X of 1988
5. A preliminary ground was taken by the appellant with regard to the maintainability of the suit in view of the provisions contained in section 4(1) of the Benami Transactions (Prohibition) Act, 1988. But the said ground is of no substance. The decision in Mithilesh Kumari v. Prem Behari Khare on which the contention of the appellant could have been upheld has since been overruled in R. Rajagopal Reddy v. Padmini Chandrasekharan . In this decision a specific distinction has been made with regard to the retrospectively of the application of the 1988 Act in respect of the pending proceedings. It was held that the Act was not a declaratory one in nature and has not been given retrospective effect. Therefore, the provisions thereof cannot be retrospective if the defence is allowed before 5-9-1988. But in this case, such question arose with the filing of the plaint since the plaintiff wanted to assert benami and, therefore, the provision of the 1988 Act cannot be attracted to the present suit instituted in 1981. That apart, section 3(2) of the 1988 Act provides that the provision of the said Act would not apply to the purchase of property by any person in the name of his wife. In such case unless contrary is proved, it is to be presumed that the purchase was made for the benefit of the wife. The presumption runs in this case and the provision of the 1988 Act would not be applicable so as to create a bar of claiming benami character of the property. On the other hand, section 3(2) helps the defendant No. 1 to claim that the property was purchased for her benefit even if it is proved that it was purchased by her husband unless contrary is proved. From the discussion made above, we do not find that the plaintiff has been able to prove anything to the contrary, even if it is assumed that property was purchased by the father of the plaintiff. While considering the question of benami, section 3(2) has an impact. The decision in Mt. Bilas Kunwar's case (supra) has to be read in the context of section 3(2) of the 1988 Act. This makes it more stringent for the plaintiff to assert the transaction to be a benami one. For this the motive of the father has to be proved. As discussed above, no motive having been attempted to be asserted. The presumption under section 3(2) is a statutory one. We do not find anything to rebut the statutory presumption. Therefore, even if we find that the purchase was funded by her husband or the construction was made out of the sources received from the husband, still by reason of section 3(2) of 1988 Act, it is to be presumed that it was done by the husband for the benefit of the wife, the defendant No. 1.
Conclusion
6. For all these reasons, we are unable to agree with the conclusion arrived at by the learned trial court. In our view, the plaintiff has not been able to prove his case that the transaction was a benami one. Therefore, he is not entitled to any relief in this suit.
ORDER
7. In the result, the appeal succeeds and is hereby allowed. The judgment and decree dated 6-1-1993 passed by the learned Judge, City Civil Court, 6th Bench in Title Suit No. 2358 of 1981 is hereby set aside. The Title Suit No. 2358 of 1981 is hereby dismissed. There will, however, be no order as to costs.
J. Banerjee, J. - I agree.
Appeal succeeds.