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1 - 10 of 15 (0.26 seconds)Jaydayal Poddar (Deceased) Through His ... vs Mst. Bibi Hazra And Ors on 19 October, 1973
(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. (Jaydayal Poddar v. Bibi Hazral.
G.Mahalingappa vs G.M. Savitha on 9 August, 2005
], 2011 SAR (Civil) 213 [Samittri Devi & Another vs. Sampuran
Singh and Another], (2005) 6 SCC 441 [G.Mahalingappa vs. G.M.Savitha] and
2017 (1) CTC 374 [Maria Francis (Died) and others vs. M.Vardhese @ Maria
Varghese and others] are relied upon. A perusal of the above cited decisions
would go to show that for the transactions, which had been taken place prior
to the commencement of the Benami Transactions (Prohibition) Act, the said
Act would not apply.
Thakur Bhim Singh (Dead) By Lrs And Anr. vs Thakur Kan Singh on 21 December, 1979
?13.This Court in a number of judgments has held that it is well established
that burden of proving that a particular sale is benami lies on the person
who alleges the transaction to be a benami. The essence of a benami
transaction is the intention of the party or parties concerned and often,
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 substitute
for proof. Refer to Jaydayal Poddar v. Bibi Hazra, Krishnanand Agnihotri v.
State of M.P., Thakur Bhim Singh v. Thakur Kan Singh, Pratap Singh v.
Sarojini Devi and Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S.Shah.
It has been held in the judgments referred to above that the question whether
a particular sale is a benami or not, is largely one of fact, and for
determining the question, no absolute formulas or acid test, uniformly
applicable in all situations can be laid. After saying so, this Court spelt
out the following six circumstances, which can be taken as a guide to
determine the nature of the transaction:
Pratap Singh vs Sarojini Devi on 17 August, 1993
?13.This Court in a number of judgments has held that it is well established
that burden of proving that a particular sale is benami lies on the person
who alleges the transaction to be a benami. The essence of a benami
transaction is the intention of the party or parties concerned and often,
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 substitute
for proof. Refer to Jaydayal Poddar v. Bibi Hazra, Krishnanand Agnihotri v.
State of M.P., Thakur Bhim Singh v. Thakur Kan Singh, Pratap Singh v.
Sarojini Devi and Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S.Shah.
It has been held in the judgments referred to above that the question whether
a particular sale is a benami or not, is largely one of fact, and for
determining the question, no absolute formulas or acid test, uniformly
applicable in all situations can be laid. After saying so, this Court spelt
out the following six circumstances, which can be taken as a guide to
determine the nature of the transaction:
Heirs Of Vrajlal J. Ganatra vs Hairs Of Parshottam S. Shah on 30 April, 1996
?13.This Court in a number of judgments has held that it is well established
that burden of proving that a particular sale is benami lies on the person
who alleges the transaction to be a benami. The essence of a benami
transaction is the intention of the party or parties concerned and often,
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 substitute
for proof. Refer to Jaydayal Poddar v. Bibi Hazra, Krishnanand Agnihotri v.
State of M.P., Thakur Bhim Singh v. Thakur Kan Singh, Pratap Singh v.
Sarojini Devi and Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S.Shah.
It has been held in the judgments referred to above that the question whether
a particular sale is a benami or not, is largely one of fact, and for
determining the question, no absolute formulas or acid test, uniformly
applicable in all situations can be laid. After saying so, this Court spelt
out the following six circumstances, which can be taken as a guide to
determine the nature of the transaction:
R. Rajagopal Reddy (Dead) By L.Rs. And ... vs Padmini Chandrasekharan (Dead) By ... on 31 January, 1995
15. In the light of the above defence set out by the contesting defendants,
it is found that the onus rests only upon the contesting defendants to
establish that the suit properties had been purchased by the fifth defendant
in the name of the plaintiff. With reference to the contention of the
learned counsel for the defendants 1 and 2 that the provisions of the Benami
Transactions (Prohibition) Act, 1988 would not apply to the sale transactions
covered in the suit, the said position also having not been controverted by
the learned counsel for the plaintiff, the decisions reported in (1995) 2 SCC
630 [R.Rajagopal Reddy (Dead) by LRS., and others vs. Padmini Chandrasekharan
(Dead) by LRS.
Valliammal (D) By Lrs vs Subramaniam & Ors on 31 August, 2004
In this connection, the learned counsel for the plaintiff also relied
upon the decisions reported in 2003 (1) CTC 705 [George Thomas vs.
Smt.Srividya and another] and (2004) 7 SCC 233 [Valliammal (D) By Lrs., vs.
Subramaniam and others].
Smt. V. Rajeshwari vs T.C. Saravanabava on 16 December, 2003
In this
connection, the decisions reported in (2004) 1 SCC 551 [V.Rajeshwari (Smt)
vs. T.C.Saravanabava] and (2009) 10 SCC 273 [Ramchandra Dagdu Sonavane (Dead)
by Lrs.s and others vs. Vithu Hira Mahar (Dead) by Lrs., and others] are
relied upon. A perusal of the above cited decisions would go to show that
the plea of res judicata being founded on proof of certain facts and then by
applying the law to the facts so found. It is, therefore, necessary that the
foundation for the plea must be laid in the pleadings and then an issue must
be framed and tried and if the said plea is not properly raised in the
pleadings or in issues at the stage of the trial, would not be permitted to
be raised for the first time at the stage of appeal. It is further found
that it is not sufficient that if only the plea has been taken generally,
apart from taking the said plea, the same has to be substantiated by
producing the copies of the pleadings, issues and judgment in the previous
case and only on such materials, it could be decided as to whether the plea
of res judicata has been made out or not. The pleadings of the respective
parties in the previous suit and the judgment passed therein form the basis
for the proof of res judicata. As rightly argued by the plaintiff's counsel,
when such materials are not placed in the present case other than the decree
passed in the above mentioned suits and when the pleadings with reference to
the above said suits, judgments passed therein are not placed for
consideration and that apart when the plea of res judicata itself has not
been raised in the written statement, it is seen that the present argument
put forth by the learned counsel for the defendants 1 and 2 that the suit of
the plaintiff is barred by res judicata on account of the suits in
O.S.Nos.440 of 1980 and 1935 of 1989 as such cannot be countenanced in any
manner. That apart, it is found that the ex parte decree passed in
O.S.No.440 of 1980 having been set aside and finally when the said suit has
been dismissed for default for non-prosecution, it is found that the plea of
res judicata as regards the above case cannot be accepted. That apart, it is
also found that the decree passed in O.S.No.1935 of 1989 is also an ex parte
decree and therefore, it is found that the issues involved between the
parties in the said suit had not been heard and adjudicated by the Court
concerned after inviting the objections of all the parties and hence, it is
seen that the decree passed in the said suit also would not operate as res
judicata to the plaintiff's present suit. As seen above, when for deciding
the question of res judicata as such sans material as adumbrated in the
decisions of the Apex Court, the said plea cannot be accepted merely on
surmises and conjectures. In the light of the above discussions, I hold that
the suit laid by the plaintiff is not barred by res judicata on account of
the suits in O.S.Nos.440 of 1980 and 1935 of 1989. Accordingly, Point No.IV
is answered in favour of the plaintiff.
Ramachandra Dagdu Sonavane(D)By Lrs& ... vs Vithu Hira Mahar(Dead) By Lrs.& Ors on 9 October, 2009
In this
connection, the decisions reported in (2004) 1 SCC 551 [V.Rajeshwari (Smt)
vs. T.C.Saravanabava] and (2009) 10 SCC 273 [Ramchandra Dagdu Sonavane (Dead)
by Lrs.s and others vs. Vithu Hira Mahar (Dead) by Lrs., and others] are
relied upon. A perusal of the above cited decisions would go to show that
the plea of res judicata being founded on proof of certain facts and then by
applying the law to the facts so found. It is, therefore, necessary that the
foundation for the plea must be laid in the pleadings and then an issue must
be framed and tried and if the said plea is not properly raised in the
pleadings or in issues at the stage of the trial, would not be permitted to
be raised for the first time at the stage of appeal. It is further found
that it is not sufficient that if only the plea has been taken generally,
apart from taking the said plea, the same has to be substantiated by
producing the copies of the pleadings, issues and judgment in the previous
case and only on such materials, it could be decided as to whether the plea
of res judicata has been made out or not. The pleadings of the respective
parties in the previous suit and the judgment passed therein form the basis
for the proof of res judicata. As rightly argued by the plaintiff's counsel,
when such materials are not placed in the present case other than the decree
passed in the above mentioned suits and when the pleadings with reference to
the above said suits, judgments passed therein are not placed for
consideration and that apart when the plea of res judicata itself has not
been raised in the written statement, it is seen that the present argument
put forth by the learned counsel for the defendants 1 and 2 that the suit of
the plaintiff is barred by res judicata on account of the suits in
O.S.Nos.440 of 1980 and 1935 of 1989 as such cannot be countenanced in any
manner. That apart, it is found that the ex parte decree passed in
O.S.No.440 of 1980 having been set aside and finally when the said suit has
been dismissed for default for non-prosecution, it is found that the plea of
res judicata as regards the above case cannot be accepted. That apart, it is
also found that the decree passed in O.S.No.1935 of 1989 is also an ex parte
decree and therefore, it is found that the issues involved between the
parties in the said suit had not been heard and adjudicated by the Court
concerned after inviting the objections of all the parties and hence, it is
seen that the decree passed in the said suit also would not operate as res
judicata to the plaintiff's present suit. As seen above, when for deciding
the question of res judicata as such sans material as adumbrated in the
decisions of the Apex Court, the said plea cannot be accepted merely on
surmises and conjectures. In the light of the above discussions, I hold that
the suit laid by the plaintiff is not barred by res judicata on account of
the suits in O.S.Nos.440 of 1980 and 1935 of 1989. Accordingly, Point No.IV
is answered in favour of the plaintiff.