Karnataka High Court
Smt. M. Printer And Ors. vs Marcel Martins on 26 March, 2001
Equivalent citations: AIR2002KANT191, ILR2002KAR3757, AIR 2002 KARNATAKA 191, 2002 AIR - KANT. H. C. R. 1026, (2002) ILR (KANT) (3) 3757, (2003) 1 CIVLJ 484, (2002) 4 ICC 157
Author: N. Kumar
Bench: N. Kumar
JUDGMENT N. Kumar, J.
1. This is a plaintiffs' appeal. Plaintiffs filed the suit for declaration that they are the co-owners of the schedule premises to the extent of their contribution and for a decree of permanent injunction restraining the defendant from interfering in any manner with the plaintiff's peaceful possession and enjoyment of the suit schedule premises.
2. The case of the plaintiffs is the schedule premises i.e. premises bearing municipal No. 33. A and B Block. Austin Town, Bangalore-47 was originally owned by the Corporation City of Bangalore and the same was given out on lease by the Corporation. The lease was made out in the name of Smt. Stella Martins, wife of plaintiff No. 1 and mother of plaintiffs 2 to 4 and the defendant, she being the original allottee. On 18-11-1982 Smt. Stella Martins, the original allottee of the schedule premises expired. On her death it was found that the lease of the schedule property had to be transferred to the name of one of the members of their family. On enquiries made by plaintiff No. 2 it was found that the Corporation would transfer the lease to only one person's name. At that time plaintiff No. 1 being seriously ill and apprehending that he would die by undue influence forced his daughters to state that they have no objection for transfer of the tenancy from Smt. Stella Martins to the defendant, he being the only son and that he, would hold the same in trust for his father and sisters. At the time of filing of the application for transfer of the lease the defendant was residing at Bombay. The application was filed on 18-4-1985. The tenancy of the schedule premises was transferred to his name on 2-8-1985. Though the defendant was residing at Bombay and he had ceased to reside in the premises from 1970, the transfer of tenancy was made in his name.
3. That by an order of the Government of Karnataka dated 18-5-1978 sanction was accorded to the proceedings of the administration with an observation that care should be taken to locate the right occupants while disposing the quarters. The plaintiff No. 2 having lived in the schedule premises all her life and being the existing occupant of the schedule premises moved the Corporation to sell the schedule premises to her and the Corporation agreed to sell the same for a price of Rs. 48.636.00. In order to purchase the schedule premises it was agreed by the plaintiffs and the defendant that the purchase money should be contributed by all, each thus having a right in the scheduled premises as a co-owner. It was agreed that the entire amount be paid by the plaintiff No. 1, and each of the plaintiffs 2. 3 and 4 and the defendant would contribute a sum of Rs. 5.000.00. The plaintiffs 2, 3 and 4 and defendant later paid the agreed amount of Rs. 5,000.00 on various dates to the plain-tiff No. 1. Thus the plaintiff No. 1 is the major contributor and each of the plaintiffs and defendant contributed only to the extent of Rs. 5,000.00 only.
4. Since the lease stood in the name of the defendant the Corporation advised the plaintiff No. 2 that it would be a much simpler procedure to have the scheduled premises transferred to the name of the defendant than to have the same transferred to the names of all the members i.e., the plaintiffs and defendant. Therefore, the schedule premises was transferred and registered in the name of the defendant and he undertook to hold the same in trust for the other members. The sale deed was effected on 26-6-1987. The defendant came down to Bangalore in 1989 and moved into the schedule premises which caused hardship to plaintiffs Nos. 1 and 2. Thereafter, the defendant threatened to throw away plaintiffs 1 and 2 and started asserting absolute ownership over the property. Apprehending any legal action from the defendant plaintiff No. 2 entered the caveat. The defendant approached the KEB for transfer of the electricity meter in his name and started asserting his absolute title to the schedule property. Under these circumstances, the plaintiffs were constrained to file the suit for a declaration that they are the co-owners of the schedule premises to the extent of their contribution.
5. Defendant No. 1 contested the claim of the plaintiffs by filing a detailed written statement. He admitted the relationship between the parties. It is his specific case that as per the wish of his mother the schedule premises was transferred to his name for which the first plaintiff gave his consent. There was no understanding or agreement to hold the property in trust. It was the desire and wish of the deceased mother and first plaintiff to transfer all rights and interest in favour of their son and not in favour of their married daughters. As per the Government Order the sale deed was executed in favour of the defendant by the Corporation. It is thereafter the plaintiffs except the first plaintiff apprehending that they may be asked to vacate have approached this Court with a false claim. It is further averred that the entire sale consideration towards purchase of the suit schedule premises was contributed by him and not by other children. The money was not paid either by the first plaintiff or any other children much less Rs. 5.000.00 by the plaintiffs or at stages. Plaintiff No. 2 who is in exclusive enjoyment of the schedule property has no right to remain in the schedule property. She is married and has to set up her own house. She is attempting to grab the property by fabricating a story of co-ownership and her contribution towards sale consideration. He has not asked the second plaintiff at any stage to move out of the house or threatened to push her out of the house. He specifically states that sale price of suit property was contributed by him and not by plaintiffs. He is the sole and absolute owner of the property and he will proceed legally to recover the possession of same.
6. On the aforesaid pleadings, the learned trial Judge has framed the following issues :--
"1. Whether the plaintiffs prove that plaintiffs and defendants contributed purchase money of suit site?
2. Whether the plaintiffs prove that plaintiffs and defendant are having a right in the schedule premises as co-owners?
3. Do the plaintiffs prove that they are in lawful possession of the suit property?
4. Do the plaintiffs prove that defendant threatened them to throw them away from the suit property?
5. Whether defendant proves that the entire sale consideration towards purchase of suit schedule property was contributed by him?
6. What relief or order? Addl. Issues :--
7. Whether the plaintiffs are entitled for a decree of permanent injunction restraining the defendant from forcibly dispossessing the plaintiffs other than by due process of law?"
7. On behalf of the plaintiffs PW 1, the first plaintiff was examined. Plaintiffs 2 and 3 were examined as PWs2 and 3 and the bank manager has been examined as PW4. Exhibits P1 to P20 are marked as documents in support of the plaintiffs claim. Defendant was examined as DW1 and he also got marked Exs. D1 to D56 to substantiate his defence.
8. The learned trial Judge after considering the oral and documentary evidence and after hearing the arguments of the parties held that the plaintiffs have not proved that the purchase money is paid by all of them and that they are the co-owners. On the question of possession, he held the possession of the plaintiffs cannot be held to be unlawful. He further held that the defendant has provided the entire sale consideration for the purchase of the schedule property. The Court below held though the defendant is the owner of the suit schedule property he is not entitled to dispossess the plaintiff by force. In view of the findings recorded as aforesaid he dismissed the suit of the plaintiffs. Aggrieved by the said judgment and decree the plaintiffs have preferred the present appeal.
9. Sri Anant Mandgi, learned counsel for the appellants, contended before me that the finding of the Court below that the entire consideration for the purchase of the schedule property was provided by the defendant is contrary to the evidence on record. On the contrary evidence discloses that the cheque for Rs. 48,734.00 was issued by the second plaintiff from her account. Further the evidence on record discloses a sum of Rs. 35,636.00 was transferred from the account of the 1st plaintiff to the second plaintiff for payment of the sale consideration and the balance amount was arranged by the second plaintiff and not a single pie out of the aforesaid sale consideration has been contributed by the defendant and therefore the findings of the Court below in this regard is totally illegal and contrary to the evidence on record. He further submitted once it is demonstrated that the consideration for the purchase of the schedule property has flown from plaintiffs as well as the defendant as contended by them all of them become co-owners. Though the first plaintiff has contributed a major part of the sale consideration now that after filing of the suit he died his share should devolve on his children in equal proportion and plaintiffs 2 to 4 and defendant having contributed equally all of them would be entitled to an equal share in the suit schedule property. Therefore, he submits the judgment of the Court below is liable to be set aside and the plaintiffs have to be declared as co-owners along with the plaintiff.
10. Sri Manjunath, learned counsel appearing for respondent contended that there is absolutely no material placed by the plaintiffs to demonstrate their case that plaintiffs 2 to 4 and defendant contributed Rs. 5,000.00 for the purchase of the schedule property and therefore no declaration regarding co-ownership could be granted in favour of the plaintiffs. Elaborating the said contention he pointed out that admittedly a sum of Rs. 35,636.00 was transferred from the joint account of the first plaintiff and the defendant to the account of the second plaintiff and therefore that is an amount which exclusively belongs to the defendant. As such the entire sale consideration for the purchase of the schedule property has flown from the funds of the defendant. Further he submitted the defendant had saved money in his Post Office Savings Bank and from there he withdrew a sum of Rs. 23,000.00 and the said amount was deposited in the joint account of the plaintiffs and defendant. Similarly, when he left his employment at Bombay he had necessary funds to the tune of Rs. 32,000.00 and therefore the entire sale consideration for purchase of the schedule property has been met by the defendant and therefore he is the absolute owner of the suit schedule property. Lastly he contended that admittedly the lease hold rights were in the name of his mother. After her death it was transferred to the name of the defendant and it is thereafter the sale deed was obtained in the name of the defendant on his paying the entire sale consideration to the Corporation. Therefore, from these undisputed facts it is clear that defendant is the absolute owner of the schedule property and plaintiffs have no manner of right, title or interest over the same.
11. Though there is no plea of benami nature of transaction and no defence is set up therein that such a plea cannot be countenanced in view of the Benami Transactions (Prohibition) Act, 1988 (for short called "the 1988 Act"), a faint attempt was made on behalf of the respondent to contend even if the case of the plaintiff were to be accepted it would amount to benami transaction and in view of the prohibition contained in the aforesaid Act no declaration could be granted in favour of the plaintiffs. Though this point appears to have been argued before the Court below, the learned trial Judge did not accept this argument because of the finding which he had recorded that the defendant purchased the schedule property out of his own funds and therefore he did not go into the question of the said plea of benami. However, before me it was contended that in the event this Court were to reverse the finding of the Court below on the question of consideration for the purchase having been provided by the plaintiffs then the said transaction amounts to benami transaction as defined under the 1988 Act and in view of the prohibition contained in the 1988 Act no relief could be granted to the plaintiff.
12. In view of the aforesaid rival contentions canvassed before me, now the question that arises for my consideration in this , appeal are as under :--
(a) Whether for purchase of the schedule premises, the entire sale consideration was provided by the defendant or the consideration was provided by the plaintiffs and defendant as contended by them?
(b) In the event it is to be held that the plaintiffs and defendant are co-owners of the schedule property whether the said transaction amounts to a benami transaction and is hit by the provisions of the 1988 Act.
13. Point No. (a) :-- In order to find out who provided the consideration for purchase of the schedule property it is necessary to look into the evidence of the parties and the documents which they relied on. In fact the first plaintiff was examined as PW1 on 13-7-1991. He has stated in his evidence that he purchased the schedule property and for that purpose all his children contributed Rs. 5,000.00 each and the remaining sale consideration was paid by him. His pension money savings was put to purchase the suit schedule property. His son did not pay the entire sale consideration to the Corporation and he has paid only Rs. 5,000.00. It is true that the sale deed in respect of the schedule property was taken in his name as the tenancy was in his name. He had promised that he would hold the property in trust on behalf of the plaintiff. His son does not have absolute right over the suit schedule property and his right in respect of the schedule property is restricted to the proportion of his contribution towards the sale consideration.
14. PW2 is the second plaintiff who in fact has taken a dominant part in obtaining the sale deed from the Corporation of the City of Bangalore. She has stated that each one of them paid Rs. 5.000.00 and father paid the rest of the amount and in all a sum of Rs. 48,636-00 was paid to the Corporation. In fact a sum of Rs. 48,636.00 was paid by way of a demand draft and it was obtained from her and her husband's joint account and she has produced Ex. P2, a letter written from the Bank stating that the said demand draft was given from her account. She has also produced an account extract marked as Ex. P11 which is standing in the name of herself and her husband. She has denied the suggestion that the defendant paid the entire sale consideration. She has also stated that the original of the sale deed is in her possession and she is in possession of the suit schedule property also. She has said she has paid to the hands of the father a sum of Rs. 5,000.00 in 1987 during purchase. The amount of Rs. 48,636.00 belonged to her husband, her sister, her father and herself. She has denied the suggestion that defendant and her father paid Rs. 35,636.00 in November 1986 for purchse of the said property. She asserts that the said amount was paid by her father alone. She has also spoken to the fact that her father was able to maintain them after 1984 and he was getting good pension in pounds. He was getting 100 and odd pounds per month. She has denied the suggestion that the defendant was sending money for the maintenance of her father and herself.
15. PW 3 is the third plaintiff in the suit who has also spoken about the contribution made by plaintiffs 2 and 4 and defendant in a sum of Rs. 5,000.00 for purchase of the schedule property. She has said that the sum of Rs. 5,000.00 was paid by her by way of a cheque.
16. PW4 is the manager of the bank who was examined to speak about S.B. Account No. 902 in United Commercial Bank. He has spoken about S.B. Account No. 902 being in the name of the first plaintiff. It is in his evidence that originally the said account was in the name of first plaintiff and his wife. After the death of Stells Martins in 1982, in 1983 he added the name of his son, the defendant to the said account. He has further deposed that he used to get cheques in pounds from Crown Agents, London and the bank used to purchase the cheques and convert the amount into rupees and credit the amount to the account every month. He has further spoken about the fact that the defendant never operated the said account. He has spoken about several entries found in the said account.
17. Then we have the evidence of defendant who has totally denied the contribution by the plaintiffs for purchase of the schedule property. It is his specific case that Rs. 48.636.00 was paid by him when he was at Bombay to the second plaintiff and she paid the said consideration to the Corporation and obtained the sale deed. He says that the aforesaid amount was paid by him to the second plaintiff in instalments. To substantiate the said contention he has produced Exs. D2 to D5, the bank account. Relying on the said entries he says in November 1986 he has paid Rs. 35,636.00 and he asserts that his father did not pay the said amount. It is his case that he was remitting the amounts to his father and mother every month. He has relied on M.O. coupons to demonstrate the said fact. He has referred to the letters written by his mother and marked Exs. D14 to D34 and contends that the said letters prove the Fact that he was sending the monies to his father and mother. He relies on Exs. D35 and 36 that he was sending monies to his father. He again categorically states he paid Rs. 48.000.00 to the second plaintiff by cheques. He relies on the entries in the Pass Book, Ex. D5, D6 and D7 to demonstrate the aforesaid payments. He further states that as per Ex. D43 he withdrew a sum of Rs. 23,000.00 from the post office account and he deposited the amount in his joint account held by him and his father. He also states that he got Rs. 32,000.00 in February 1987 when he came to Bangalore after quitting his job at Bombay.
18. Now coming to the documentary evidence relied on by both the parties, the documents which are relevant for the purpose of finding out the source of consideration, Ex. P2 is a letter written by State Bank of India certifying that an amount of Rs. 48.734.00 was debited to the Savings Bank Account No. 339 of M. H. Printer on 13-11-1986 and demand draft No. 6359/49 was made for Rs. 48,636.00 favouring Commissioner. Bangalore City Corporation, on the same day is of relevance. Then Ex. P12 is the Savings Bank Account 901 of plaintiff No. 1 and the defendant which records the payments. Ex. D5 is the entire account extract of Account No. 901 standing in the name of the first plaintiff and his wife up to 1982 and thereafter in the name of the first plaintiff and defendant which is relied on by the defendant to demonstrate that a sum of Rs. 35,636.00 is paid by the defendant to the second plaintiff for purchase of the schedule property. Similarly, Exs. D6. D7 and D8 are the pass books of the defendant to show his resourcefulness that he had necessary funds to purchase the suit schedule property. Exs. D9 to D11 is MO coupons showing that the defendant was sending money by money order to his mother. Ex. D43 is the pass book of Post Office Savings Account which shows a sum of Rs. 23.000.00 was withdrawn on 22-10-1982. Ex. D42isacer-tiflcate issued by Bharat Gears Limited, the employers of the defendant showing his total income for the period from 1-4-86 to 10-2-87 including the retirement benefits which were given to him on his retirement. Yet another document which is of assistance is Ex.D56 a letter written by the defendant to the third plaintiff where he has categorically admitted at page 7 that his father is the only person who helped in purchasing a plot at Bombay and in that regard he has received a sum of Rs. 10,000.00 which amount he has repaid. Again at page 6 he has stated that he has paid Rs. 5,000.00 towards the purchase of the house.
19. Now with this oral and documentary evidence on record we have to find out whether the entire sale consideration for the purchase of the schedule property was paid by the defendant as contended by him or has been paid by the plaintiffs and defendant as contended by the plaintiffs. From the aforesaid evidence on record what emerges is Rs. 48.636.00 is the consideration amount paid to the Corporation for purchase of the schedule property. The said amount was paid by way of a demand draft. The said demand draft was obtained from the Savings Bank Account No. 339 of the second plaintiff on 13-11-1986. These facts are not in dispute. Now it is also not in dispute a sum of Rs. 35.636.00 was paid to the second plaintiff by the first plaintiff from his Savings Bank Account which amount was utilised by the second plaintiff to purchase the demand draft towards sale consideration after making good the balance amount. The defendant contends in one breath that he sent a cheque for Rs. 48.636.00 from Bombay where he was working to the plaintiff for the purpose of sale consideration. The evidence on record clearly falsifies this part of the case of the defendant and the falsity of the said stand taken by the defendant. The next version given by the defendant is this cheque for Rs. 35,636.00 issued from Savings Bank Account No. 901 as per Ex. D5 is a cheque issued by him to the second plaintiff towards the sale consideration. The evidence of the manager of the bank discloses that the defendant never operated the bank account. On the contrary, the evidence of PW1 and the other material on record discloses that it is a cheque issued by PW1 in favour of PW2 which again exposes the falsity of the case of the defendant. The last contention of the defendant is he has been crediting amount to his Account No. 901 from time to time and out of the said amount the said cheque has been issued by the father. He also says that he has been sending the money by Money Order which is evidenced by Money Order Coupons and therefore he contends this amount is his and not his father's. A perusal of the account extract produced in this case Ex. D5 clearly demonstrates that periodically money is transmitted to the account through foreign currency and only we find few entries showing amount has come from Bombay clearances. No evidence is adduced by the defendant to show that those cheques are issued by him. It is on record that the third plaintiff, a resident of Bombay, has sent a cheque for Rs. 5,000.00 being her share of the consideration to her father which is credited to the account. That apart attempt was made by the defendant to contend that he had withdrawn a sum of Rs. 23,000.00 from the Post Office Savings Bank Account and the said amount has been credited to the Savings Bank Account of 901 and it is out of that money the sale consideration is paid. In another breath he says that the amount was given to the hands of the father i.e. the first plaintiff. If we carefully examine this aspect of the case, Rs. 23,000.00 was withdrawn by him in the year 1982 whereas the purchase of the schedule property is in the year 1986. Therefore, there is no nexus between the withdrawal of the amount in 1982 and payment of the consideration in 1986 when the account extract produced in Court do not disclose an entry showing the deposit of Rs, 23,000.00 into the account No. 901. Yet another version of the defendant is in 1987 when he quit his job at Bombay he got Rs. 32,000.00 as per Ex. D42 and that amount was paid towards sale consideration. A perusal of Ex. D42 discloses that it is dated 11-2-1987 much after the execution of the sale deed in favour of the defendant. Therefore, that money would not have been utilised even if he had received for the purchase of the schedule property. Therefore, when the defendant has taken a specific contention that the entire sale consideration was paid by him from his account, the material on record do not support the said contention. On the contrary it clearly demonstrates that a sum of Rs. 35,566.00 was paid by the first plaintiff to the second plaintiff and second plaintiff made up the balance amount of Rs. 13,000.00 and odd and had purchased a demand draft for Rs. 48.000.00 in the name of the Corporation and got the sale deed executed in the name of the defendant. In fact she has sworn to in the witness box that the defendant gave her Rs. 9,000.00 out of which Rs. 5,000.00 was his share of the sale consideration and another Rs. 4,000.00 was towards repayment of the loan which he had borrowed from her husband when he came to Bangalore in 1987 after quitting his job at Bombay. There is no cross-examination on this aspect and there is no reason why the said evidence should not be believed. Coupled with this in Ex. D56 a document which he himself has produced before the Court he categorically states in writing that he has contributed Rs. 5,000.00 towards purchase of the house. Therefore, the case of the plaintiffs that each of the children contributed Rs. 5,000.00 and the balance amount was contributed by the father appears to be probable. The theory of the defendant giving any money to the father and the father putting into his joint account also is unbelievable in view of his statement in writing in Ex. D56 where he has categorically stated when he wanted to purchase a plot in Bombay the only person who helped him was his father who paid him Rs. 10,000.00 for the said purpose which amount of course he has repaid. If really the defendant's amounts were in the hands of the first plaintiff, the question of the defendant borrowing a sum of Rs. 10,000.00 from the father and repaying that would not arise. The learned trial Judge proceeds on the assumption that the defendant had a sum of Rs. 32.000.00 as evidenced by D42 and he had a sum of Rs. 23,000.00 as evidenced by D43 which amounts were deposited as Ex. D5 and therefore the sum of Rs. 35,636.00 which is paid to the second plaintiff is a money belonging to the defendant, a finding which is totally opposed to the material on record as discussed above. Further, he holds that it is not improbable that the defendant might have paid money to his father and he might not have deposited the amount in the said account but nevertheless when the father makes payment it is the money of his son. These findings are contrary to the admitted and proved material on record. Another reason given by the Court below for not believing the version of the plaintiffs is that they have not produced any documentary evidence to substantiate their contention that each one of them have contributed Rs. 5,000.00 and made the said payments to their father. In coming to the said conclusion, the learned trial Judge has ignored the evidence of the father which has remained unchallenged and the fact that the second plaintiff issued a demand draft for Rs. 48,000.00 as against the receipt of only Rs. 35,000.00 making out the remaining Rs. 13,000.00 from her account. It is also in evidence that PW3 has sent a cheque for Rs. 5,000.00 which is credited to the account of the father. Further, the defendant himself has stated in writing that he has contributed Rs. 5,000.00 towards purchase of the house. These admissions have been ignored by the Court below while recording the said finding. Therefore. In view of my discussion as aforesaid, I am of the opinion that the defendant has miserably failed to establish that the entire sale consideration of Rs. 48,636.00 was paid by him. On the contrary plaintiffs have established their case that plaintiffs 2, 3 and 4 and defendant have contributed Rs. 5,000.00 towards the sale consideration and the balance amount has been contributed by the first plaintiff. As such it cannot be said that the defendant is the absolute owner of the suit schedule property,
20. Coming to the law on the point it is useful to refer to a judgment of the Madras High Court in thee case of C.V. Ramaswami Naidu v. C. S. Shyamala Devi (1978) 1 Mad LJ 505 wherein it is held :--
"26. Co-ownership is a relationship which springs and slopes from consensus and contract. Legislation has only imprinted on the concept of co-ownership certain rights which have a supervening effect which are declaratory of the rights inter se as between co-owners. The legal relationship is always knitted in a frame work of jointness and no one therein can predicate with certainty as to what portion of the property held in common is his: and an element of inseparability is inhered in the doctrine of co-ownership. What can be predicated by reason of Section 45 of the Transfer of Property Act and by invoking the principle of quasi trust in the Indian Trusts Act is the quantum of rights of such co-owners in the entirety of the property. Such quantification of rights of each of the co-owners in a given property depends on the facts and circumstances of each case. It is for the purpose of providing a just rule for weighing and appreciating the value or interest of a co-owner in joint property that the rule of equity is evolved in Section 45 of the Transfer of 'Property Act......
Therefore, if the source of the purchase price or the consideration for the investment in a joint enterprise emanates from a common fund, then the shares of each of the co-owners or co-entrepreneurs would be the same as their interest in that common fund. This equitable adjustment of rights is subject to a contract to the contrary. If, therefore, there is evidence that two or more persons purchased the property or an interest in the property, then the rule in Section 45 of the Transfer of Property Act would be automatically attracted, unless the parties have contributed otherwise in the matter of their quantum of interest in the joint property. The fact that the property was purchased in the name of one of the co-owners, would not make a serious dent on the above rule of good conscience, provided however it is established by acceptable evidence that such purchase in the name of co-owner was by accident or by consent and that the consideration for such purchase emanates from a common fund. It is this rule of justice-equity and good conscience which is reiterated in the Indian Trusts Act by the provisions which deal with quasi trusts as they are styled to legal parlance. In Section 94 of the Indian Trusts Act, which is residuary in character, a provision is made to cover cases where the legal and equitable interest are not united in the same person. Section 94 of the Indian Trusts Act provides that the person having possession of property in which he has not the whole beneficial interest trust hold the property for the benefit of the other persons having such interest to the extent necessary to satisfy the just demands. Section 95 of the Indian Trusts Act makes the position more clear and highlights the obligations, duties, liabilities and disabilities of such a person holding the property in his name but not having both the legal and the equitable interests united in him. In a proved case of such a holding of property by an individual in his own name, but for the benefit of others, who are also interested in it, the individual has accepted his position as a constructive trustee of such property and he has to hold the same for and on behalf of the person for whom and for whose benefit he holds it. Excepting for certain rights which he has to deal with the said property for the conjoint benefit of himself and other co-owners, he cannot project in himself a title which is inconsistent with or derogatory to the other title of the co-owner. Section 90 of the Trusts Act says "where a tenant for life, co-owner, mortgages or other qualified owner of any property, by availing thereof his position as such, gains an advantage in derogation of the rights of the other persons interested in the property or where any such owner on representing all persons interested in such property, gains any advantage he must hold for the benefit of all persons so interested the advantage so gained, but subject to "........". It therefore follows that the concept of co-ownership has certain peculiar rights and liabilities attached to it and that is why it is accepted law that a co-owner cannot even by the mere possessory title of the property in him claim the same by adverse possession. One can be said to hold a property adversely to the other, provided it is open, continuous and public possession which is to the prejudice of the other co-owner. Since such continuous and open and adverse possession by one co-owner against the other is not possible, having regard to the indivisible and well-knit rights of all co-owners of the totality of the property, one co-owner cannot set up an adverse title to the prejudice of the other co-owner, though he may be for all physical purposes incorporeal possession of the concerned property."
21. Similar is the view taken by the Allahabad High Court in the case of Dwarka Prasad v. Mahadeo Prasad, AIR 1930 All 631 wherein it is held :--
"These cases all tend to establish that where there is a fund belonging jointly to several persons and one of those persons makes a purchase of land with that fund, that purchase inures to the benefit of all the persons entitled to share in the fund. This is really the principle laid down in Section 88, Trusts Act, 1882. It runs as follows :
"Where a trustee ............or other person bound in a fiduciary character to protect the interests of another person, by availing himself of his character, gains for himself any pecuniary advantage ..........he must hold for the benefit of such other person the advantage so gained."
Illustration (d) to this section is as follows :
"A, a partner buys land in his own name with funds belonging to the partnership. A holds such land for the benefit of the partnership."
22. Therefore, it follows that if two or more persons purchase a property out of common fund the share of each of those persons would be the same as their interest in the common fund then the rule in Section 45 of the Transfer of Property Act would be automatically attracted. The fact that the property was purchased in the name of one of the co-owners would not make a serious dent on the above rule of good conscience provided however it is established by acceptable evidence that such purchase in the name of the co-owner was by consent and that the consideration for such purchase emanates from common fund. The person in whose name the property was purchased could not set up an exclusive title in himself and ward off the just and equitable claims of other sharers who have contributed for purchase and with whose consent the purchase was made in his name. All the persons who contributed fund for purchase of the said property would be co-owners and each of them would have right in the said property in proportion to the fund they have contributed for purchase of the said property.
23. In this regard it is also useful to see the background of the purchase in the instant case.
24. This property originally belonged to the Corporation City of Bangalore. Plaintiff's 2 to 4 and defendant's mother Smt. Stella Martins was the original lessee. On her death the lease hold rights devolved on her husband and children. Though the lease hold rights devolved on all these persons by consent they got the lease hold rights transferred to the defendant. When the Government came out with a policy decision to see these lease hold properties were sold in favour of the occupants of these properties, the parties decided to take the sale deed in the name of the defendant. The same was possible only on account of consent given by the other legal heirs who had a share in the said property. Ex. P5, the affidavit filed by the first plaintiff, clearly demonstrates only when no objection was given the Corporation transferred the lease hold rights in favour of the defendant. In fact the defendant in Para 7 of his deposition has said that :--
"It is correct to suggest that my name was entered in the Corporation records as a tenant after my father and sisters gave no objection. They have given mea written statement saying that they have no objection for transfer of tenancy right in my favour. The agreement is with the Corporation. I have not produced it. The agreement which is with the Corporation is the Assignment Deed. I have not produced any document in that respect."
This makes it very clear that with the consent of the other legal heirs the tenancy rights as well as the sale deed was made out in the name of the defendant. When the defendant speaks about the deed of assignment he has admitted that the other legal heirs have an interest in the schedule property and by virtue of the assignment deed executed by them in his favour their rights stand extinguished. Admittedly, no such assignment deed has been produced before the Court. In the absence of any such assignment deed being produced and in view of the categorical admission that only with the consent of others, tenancy rights were transferred in his name it is obvious that all of them had a share in the suit property. Coupled with this all of them contributed funds for purchase of the property in the name of the defendant. Therefore, I have no hesitation to hold that the plaintiffs 2. 3 and 4 along with the defendant, after the death of the first plaintiff, are co-owners of the schedule property having equal share in the schedule property. Therefore, the trial Court was not justified in dismissing the suit of the plaintiff holding that the schedule property exclusively belongs to the defendant.
25. Point-No. (b) :-- Now the question for consideration is once it is held that consideration has been passed by the plaintiffs to purchase the schedule property in the name of the defendant does it fall within the mischief of provision of "1988 Act". Benami transaction has been defined under the aforesaid Act at Section 2(a) :--
"2. Definitions.-- In this Act, unless the context otherwise requires, --
(a) "benami transaction" means any transaction in which property is transferred to one person for a consideration paid or provided by another person."
Prior to the coming into force of this Act, the benami transaction is understood in the following sense as laid down by the Supreme Court in the case of Sree Meenakshi Mills Limited, Madural v. Commr. of Income-tax, :--
"(b) Benami -- Nature of transactions --(Words and Phrases).
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 itself is genuine, but the real purchaser is B, X being his banamidar. 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 transactions 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 transferror 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 is the real transferee or B, to enquire into the question as to who paid the consideration for the transfer, X or B. But in 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.
It is a most unreal question to raise of firms and companies whose only business consists of sham transactions as to who found the capital for them or who was running them".
26. Subsequently, the Hon'ble Supreme Court in the case of Bhim Singh v. Kan Singh, laid down the tests to determine the benami transaction as under :--
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 the 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 motive governing their action in bringing about the transaction and their subsequent conduct, etc.,
27. The Hon'ble Supreme Court of India in the case of The Controller of Estate Duty. Lucknow v. Aloke Mitra has held as under :
"It is but axiomatic that a benami transaction does not vest any title in the benamldar 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. A benamldar is an ostensible owner and if a person purchases from a benamidar, the real owner cannot recover unless he shows that the purchaser had actual or constructive notice of the real title. But from this it does not follow that the benamldar has real title to the property, he is merely an ostensible owner thereof."
The law on this point is succinctly stated in the Hindu's Law by Main, 11th edition at Page 953 Para 33 as hereunder :
"Yet another factor which has to be borne in mind is the object on which the Benami Transactions (Prohibition Act). 1988 came to be enacted. Benami purchasers are purchasers in sole name, who does not base the consideration but merely it may. when the real title vest in another and actually purchased the property and he the beneficial owner. Benami transactions used to take place because of parda system, etc. in the case of Velayudhan Ramakrishnan v. Rajeev , it is held as hereunder :--
"70. Recognition of benami transaction by the supreme judicial tribunal of the time presumably gave a free licence for immoral traders it was an advantageous situation for the evader of public revenue.......... Wide spread abuses of benami practices by business empires, as revealed from academic studies and decisions in I.T. cases would give in an idea of the oppressive proportion in which benami transactions have undermined values and throttled honest dealers. Benami dealings would generate chunks of polluted wealth; that will go to swell the size of an even otherwise fattened corruption corps. Elimination of those dark forces and deleterious tendencies is long over due."
It is in this context to eliminate such transactions, the 1988 Act was enacted.
28. It is in this background we have to examine each transaction. In view of the fact that benami transaction has been now defined under the Act if any transaction is held to be hit by the provisions of the said Act, the said transaction should satisfy the requirements of benami transaction as defined under the Act. The first and the foremost requirement is that a property should have been transferred in the name of a person for consideration paid or provided by another person. In other words, the consideration for the transaction should not have flown from the person in whose name the property is purchased. If the person in whose name the property is purchased also has contributed consideration for purchase of the property in his name along with others whose name is not reflected in the sale deed, it would not amount to a benami transaction as defined under the Act.
29. Secondly the object of such purchase, namely whether the property is purchased in the name of a person with the intention of evading public revenue and whether there is any dishonesty in not mentioning the names of the real contributors of the fund for purchase of the property is to be looked into. If the intention to purchase the property is to avoid payment of any tax or to conceal any unaccounted income, then before applying the provisions of the Act, a careful consideration of the nature of the transaction has to be looked into.
30. Viewed from that angle in the instant case, the specific stand taken by the defendant is that the entire consideration for the purpose of the property in his name was provided by him and the plaintiffs have not contributed any portion of the sale consideration. Having taken such a specific plea and having failed in proving the said plea, the defendant would be estopped from contending that in the event the Court comes to the conclusion that plaintiffs have contributed to the purchase of the schedule property in the name of the defendant such transaction is hit by the Act. Secondly, it is not the case of the plaintiffs that they contributed the entire sale consideration and purchased the property in the name of the defendant and that defendant did not contribute any portion of the sale consideration and that defendant has no title to the suit schedule property. Their specific case is the plaintiffs 2 to 4 have contributed Rs. 5,000/- and defendant has contributed Rs. 5,000/- being his share and the balance sale consideration was contributed by their father and it is out of that common fund, the schedule property was purchased in the name of the defendant. Further, it is nobody's case that the property was purchased in the name of the defendant with the intention of evading public revenue or whether there is any dishonesty in not mentioning the names of the plaintiffs. Similarly, the material on record discloses that the purchase was not made out of any unaccounted income or with the intention of avoiding payment of any tax. Under these circumstances, it cannot be said that the purchase in question is hit by the provisions of the 1988 Act.
31. Therefore all of them are co-owners and defendant cannot claim exclusive title to the suit schedule property. Therefore, the said plea is not a plea of benami as contended by the defendant which falls within the mischief of the Act. Therefore, I do not find any substance in the contention of the defendant that the transaction in question is hit by the provisions of the Act and as such, no declaration in favour of the plaintiffs could be granted, There is no prohibition in law for declaring the plaintiffs along with the defendant as co-owners of the suit schedule property. For the foregoing reasons. I pass the following order :
32. Appeal is allowed. Plaintiffs suit is decreed declaring that the plaintiffs 2 to 4 and the defendant are co-owners to the suit schedule property to the extent of their contribution as such, all of them are entitled to equal share. Consequently the plaintiffs are also entitled to a decree of injunction restraining the defendant from dispossessing the plaintiff from the suit schedule property. However, it is open to the defendant to take appropriate legal proceedings to carve out his share and possession of his share in the suit schedule property. No costs.