Civil Appeal Nos.4534-4535 of 2018

16th April 2018.

Petitioner Counsel: Mr. MAHABIR SINGH Sr. Adv. Mr. K.R. CHAWLA Mr. AJAI KUMAR BHATIA Mr. VIJAY S. BISHNOI
Respondent Counsel: Mr. E.C. AGRAWALA Mr. SHWETAN K. SAILAKWAL Mr. TANMAYA AGARWAL Mr. VIBHOR VERDHAN

Cases Cited :
Surendra Kumar Vs. Phoolchand (Dead) Through Lrs. & Anr., (1996) 2 SCC 491 ........ 10
Union of India Vs. Moksh Builders & Financiers Ltd. & Ors., 1976 ALLMR ONLINE 530
(S.C.) : (1977) 1 SCC 60 ................................................................................................. 11
Sri Marcel Martins Vs. M. Printer & Ors., 2012 ALL SCR 1281 : (2012) 5 SCC 342 .......... 12
Vathsala Manickavasagam & Ors. Vs. N. Ganesan & Anr., 2013(6) ALL MR 926 (S.C.) :
(2013) 9 SCC 152 ............................................................................................................ 14

JUDGEMENT

Leave granted.
2. Heard learned counsel for the parties.
3. The defendant is in appeal aggrieved by the judgment and decree passed bythe trial court, as affirmed by the High Court in first appeal and review applied had also beenrejected by the High Court. The plaintiff-respondent, Dharampal Dhall (since deceased),filed a suit for restoration of possession, mesne profits and for a permanent injunction withrespect to House No.ED-48, Tagore Garden, New Delhi.
4. The plaintiff – Dharampal Dhall came with a case that he acquired theleasehold rights on plot admeasuring 149.33 square yards under the perpetual lease deedgranted by the President of India in his favour and registered on 31.01.1966. The plaintiffraised a construction over the plot and obtained the necessary sanction from the competentauthority as per the site plan and got installed electricity, water, and sewerage connections inthe premises. However, it was stated in the plaint itself that entire family started living in thesaid house. The marriage of plaintiff, as well as defendants and all sisters, were solemnizedfrom the house in question. When the relationship of Defendant No.2- the sister of theplaintiff, became strained with her husband, she started living in the said house along withher daughter. Defendant No.1 for some time in 1971 had resided out of Delhi. Father of theparties – Kashmiri Lal Dhall died on 10.08.1980, leaving behind several properties at Delhi.Defendant No.1 started living separately with effect from the year 1986. He acquired ahouse at Moti Nagar, New Delhi, and one more residential accommodation, i.e., GH-1/318,Pashchim Vihar, New Delhi.
5. It was further averred in the plaint that the mother of the parties died in thepremises in question in the year 1990. The house remained in the custody/ possession of theDefendant No.2. At the relevant point of time, the plaintiff was posted at Bombay. The housewas furnished. Furniture of the plaintiff was still lying in the house. Plaintiff came back toDelhi in the year 1993. However, at the same time, Defendant No.2 was permitted to occupythe house. Later on, it was found that Defendant No.1 had also started living in the saidhouse. The plaintiff asked defendants to vacate the premises. They did not do so. Though,Defendant No.2 had shifted residence in January 1995. Hence, the suit was filed, afterserving notice dated 30.
6.1995. Defendant No.1 was ousted from the house by the motherin the year 1986. Thus, he had no right in the house. The conduct of Defendant No.1 wasnot proper with the plaintiff.6. In the written statement filed by Defendant No.1, it was contended that thesuit was not properly valued. The defendant had been occupying the premises since the year1966. The suit was barred by limitation and was not maintainable. The allotment of the plotwas obtained initially in the name of Kumari Sneh Lata, who was the eldest child of lateKashmiri Lal Dhall. The father of the parties obtained it in the year 1963 from the DelhiDevelopment Authority (DDA). The entire amount was paid by late Kashmiri Lal to theDDA. Subsequently, construction was raised in 1965-66 by Kashmiri Lal out of his ownmoney. At that time. Plaintiff was only a student studying at IIT, Kharagpur, West Bengal.The possession of the defendant was in the capacity of the owner. The plaintiff had nosource of income at the relevant point of time. No gift deed had been made by any person inplaintiff’s favour. They are four sisters and two brothers, left as legal representatives of lateShri Kashmiri Lal. The suit was bad for non-joinder of necessary parties. The plaintiff was,thus, not entitled to any relief.
7. The trial court had decreed the suit. The judgment and decree had beenaffirmed by the High Court. Aggrieved thereby, the appellant has come up in appeals.
8. We have heard learned counsel for the parties at length. It was submittedby Mr. Mahabir Singh, learned senior counsel appearing on behalf of the appellant that theproperty was admittedly acquired in the name of Kumari Sneh Lata. Later on, at the timewhen her marriage was performed in the year 1966, the property was transferred in thename of Dharampal. At the time when the property was acquired in the name of KumariSneh Lata, in the year 1963, Dharampal, the plaintiff was a student at IIT, Kharagpur. Hehad no source of earning. Thus, obviously, the money came from father and house wasconstructed in the year 1965-66. Thus, the plaintiff had no source of income which couldhave been invested in the house at the relevant point of time. As per the statement made bythe plaintiff, he joined the services in April 1966. By that time, the house was alreadyconstructed. Thus, it was the property owned by the family. The father had spent themoney for construction of the house and for allotment of plot and thus it was a familyproperty. It was used as the residence of the entire family, marriages of the children and thefactum of enjoyment clearly indicated that it was not the property exclusively owned by theplaintiff. It was the family property even as per the case set up in the plaint as well as thevital admissions made by the plaintiff in his deposition.
9. Mr. E.C. Agrawala, learned counsel appearing on behalf of the respondents,has submitted that the property, in fact, was acquired by Kumari Sneh Lata, out of herearning, she was the teacher. It was also submitted that a letter for change in the name wasissued at her address of school where she was serving. Thus, Kumari Sneh Lata had acquiredthe plot from DDA out of her own earning. Thus, it could be said to be the family propertygot allotted by father Kashmiri Lal Dhall. Thus, it was open to Kumari Sneh Lata to give it tothe plaintiff. Thus, it would not become the family property. Though it was occupied by thefamily, from time to time the plaintiff used to come and reside therein. He had permittedDefendant No.2 to reside only due to the fact that her relationship with husband was strainedand Defendant No.1 was ousted by the mother in 1986. He had obtained two other propertiesin different localities at Delhi, i.e., Moti Nagar, New Delhi and Pashchim Vihar, New Delhi.He had reoccupied the property in question behind the back of the plaintiff in the year 1995-1996. Thus, the plaintiff was entitled to restoration of possession of the property and mesneprofit. Both the Courts have concurrently found the fact that the plaintiff was the owner. Itwas purely the finding of fact and no case for interference in the appeals by this Court wasmade out.
10. The learned counsel for the appellant had relied upon the decision in SurendraKumar v. Phoolchand (Dead) Through Lrs. & Anr., (1996) 2 SCC 491 in which thisCourt had laid down that there is no presumption that a family, because it is joint, possessedthe joint property and therefore the person asserting the property to be joint had to establishthat the family was possessed of some property with the income of which the propertycould have been acquired. But where it is established or admitted that the family whichpossessed joint property which from its nature and relative value may have formed sufficientnucleus from which the property in question may have been acquired, the presumptionarises that it was the joint property and the burden shifts to the party alleging self-acquisitionto establish affirmatively that the property was acquired without the aid of the joint family.When the property was purchased by Manager of the joint family in the name of the appellantwho was then minor in the absence of material to establish that consideration money waspaid out of separate funds, it was opined that the property was rightly held to be the jointproperty by the courts below.
11. In Union of India v. Moksh Builders & Financiers Ltd. & Ors., (1977)1 SCC 60 : [1976 ALLMR ONLINE 530 (S.C.)], this Court has observed that where it isasserted that an assignment in the name of one person is in reality for the benefit of another,the real test is the source whence the consideration came as also to find out who has been inthe enjoyment of the benefits of the transaction. The case of the appellant must be dealtupon the reasonable probabilities and legal inferences arising from proved or admitted facts.The burden of proof is not static and may shift during the course of the evidence. Thus,while the burden initially rests on the party who would fail if no evidence is led at all after theevidence is recorded, it rests upon the party against whom judgment would be given if nofurther evidence were adduced by either side on the evidence on record. Once the evidencehas been adduced the case must always be adjudged on the evidence led by the parties. ThisCourt has laid down thus:
“15. It is nobody’s case that the sale of the house to defendant 2 was fictitious and thatthe title of the transferor was not intended to pass. What we have to examine is whetherthe title, on the sale of the house in December 1946, was transferred to defendant 3,who was the real purchaser, and not to defendant 2, who was only the ostensibletransferee and was no more than a “benamidar”. It has been held in Gangadara Ayyarand Ors. v. Subramania Sastrigal and Ors. AIR 1949 FC 88, that“in a case where it is asserted that an assignment in the name of one person is inreality for the benefit of another, the real test is the source whence the considerationcame.”It is also necessary to examine in such cases who actually have enjoyed the benefits ofthe transfer. Both these tests were applied by this Court in Meenakshi Mills, Madurai v.The Commissioner of Income-Tax Madras. [1955] S.C.R. 691. It is, therefore,necessary in the present case, to find out the source of the consideration for thetransfer, as also to find out who has been in the enjoyment of the benefits of thetransaction. It is equally well settled that, although the onus of establishing that atransaction is ‘benami’ is on the plaintiff.“where it is not possible to obtain evidence which conclusively establishes orrebuts the allegation, the case must be dealt with on reasonable probabilities andlegal inferences arising from proved or admitted facts.”
16. The burden of proof is, however not static, and may shift during the course of theevidence. Thus while the burden initially rests on the party who would fail if no evidenceis led at all after the evidence is recorded, it rests upon the party against whom judgmentwould be given if no further evidence were adduced by either side i.e. on the (evidenceon record. As has been held by this Court in Kalwa Devadattam and Ors. v. The Unionof India and Ors. [1964] 3 SCR 191 that where evidence has been led by the contestingparties on the question in issue, abstract considerations of onus and out of place, andthe truth of otherwise; of the case must always be adjudged on the evidence led by theparties. This will be so if the court finds that there is no difficulty in arriving at adefinite conclusion. It is therefore necessary to weigh the evidence in this case and todecide whether, even if it was assumed that there was no conclusive evidence toestablish or rebut the “benami” allegation, what would, on a careful assessment of theevidence, be a reasonable probability and a legal inference from relevant and admissibleevidence.”
12. In Sri Marcel Martins v. M. Printer & Ors., (2012) 5 SCC 342 : [2012ALL SCR 1281] it was held that Benami Transactions (Prohibition) Act, 1988 (for short,“the Act”) would apply only in case property was held benami. In case Section 4(3) isapplicable it could not be said that property was held benami as such the provision of the Actwould not apply.
13. Section 2(a) of Act defined ‘benami transactions’ as under:
“2. Definitions- In this Act, unless the context otherwise requires,--
(a) benami transaction means any transaction in which property is transferred to oneperson for a consideration paid or provided by another person;
(b) .....”Section 4 of the Act is reproduced as under:
“4. Prohibition of the right to recover property held benami-(
1) No suit, claim or action to enforce any right in respect of any property held benamiagainst the person in whose name the property is held or against any other person shalllie by or on behalf of a person claiming to be the real owner of such property.
(2) No defence based on any right in respect of any property held benami, whetheragainst the person in whose name the property is held or against any other person,shall be allowed in any suit, claim or action by or on behalf of a person claiming to bethe real owner of such property.
(3) Nothing in this section shall apply,--
(a) where the person in whose name the property is held is a coparcener in a Hinduundivided family and the property is held for the benefit of the coparceners in the family; or
(b) where the person in whose name the property is held is a trustee or other personstanding in a fiduciary capacity, and the property is held for the benefit of another personfor whom he is a trustee or towards whom he stands in such capacity. (emphasis supplied)
The bare reading of the aforesaid provision contained in Section 4(3) of the Act makes itclear that where a person in whose name a property is held as coparcener in a Hindu UndividedFamily and the property is held for the benefits of the coparcener in the property, provisionsof Section 4 containing prohibition of the right to recover the property held benami wouldnot be applicable. The bar of the Act is not applicable to a transaction as contained in section4(3) (a) and (b). If the property is held in fiduciary capacity or is held as a trustee for thebenefits of another person for whom he is a trustee or towards whom he stands in suchcapacity. Thus, the provision of Act could not be said to be applicable in the instant case.
14. In Vathsala Manickavasagam & Ors. v. N. Ganesan & Anr., (2013) 9SCC 152 : [2013(6) ALL MR 926 (S.C.)], this Court considered the question whether theproperty was held benami or was joint family property. Where there was a tacit admissionthat the suit property was purchased by his father in his name for which he was not responsible,it was held to be joint family property.
15. After hearing learned counsel for the parties, considering the aforesaidlegal position, we are of the considered opinion that the appeals deserve to be allowed.Firstly, the plaintiff has not come up with the case that the property was acquired in thename of Kumari Sneh Lata in the year 1963 and it was she who had spent the money forgetting the land allotted from DDA and in the construction of the house. No case has beenset up in the plaint to show that Kumari Sneh Lata had spent the money in the constructionof the house. He has suppressed the fact of allotment in the name of Kumari Sneh Lata. Onthe contrary, it had been admitted in the plaint itself that family started residing in the premisesright from the beginning. In paragraphs 4 and 5, following is the pleading made by the plaintiff:
“4. That on completion of the house all family member including defendant startedliving in the aforesaid house, the marriage of plaintiff as well as the defendant and allsister were solemnized from the house in dispute.
5. That the relation between the defendant No.2 and her husband became strainconsequently she was been given shelter in the premises in dispute by the plaintiff.”
16. It is apparent that the entire family was residing in the house in questionright from the beginning and the marriages of the plaintiff as well as the defendants and allother sisters were solemnized in the house in question. It is apparent that Defendant No.2was also residing in the house continuously right from the beginning and also the mother andshe had also died in the house in question, as per the case set up by the plaintiff in the year1990. Thereafter, the house remained in occupation of the family members, is also apparent.On the contrary, there is admission made by the plaintiff that he never resided in the house.The following is the relevant portion of the deposition of the plaintiff set out hereunder:
“It is correct that I never remained in the house in dispute since its construction. It isincorrect to say that after completion of the house, my parents and all the four sistersincluding defendant No.2 and brother defendant No.1 not started living with me at thehouse in dispute.”
From the aforesaid statement, it is clear that the plaintiff never resided in the house and wasnot in possession and enjoyment of the house at any point in time.
17. Apart from that, when we come to the source of money for the purpose ofpurchase of plot, admittedly, the plaintiff was a student and he was admitted in the year 1961at IIT, Kharagpur. At the time when the land was allotted in the name of Kumari Sneh Lata,he was still a student and he had no source of income at the relevant time in 1963 or inJanuary 1966, when the allotment was changed in his name owing to the marriage of KumariSneh Lata. Thus, obviously, it was Kashmiri Lal who had spent the money in getting the landallotted and also had raised the construction in the year 1965-66. Though the plaintiff hasstated that the construction was made sometime in the year 1966, his version cannot be saidto be reliable. The plaintiff was silent in the plaint when the construction was raised. Thedefendant has come up with a specific case that the construction was raised in the year1965-66 and that is reliable. Apart from that even if construction was made in 1966 theplaintiff had admitted that he obtained employment only in April 1966 and when the housewas constructed in 1966, the plaintiff was not having enough earning so as to invest in thehouse or to purchase the plot in 1963. He was not even in a position to say his salary wasRs.400 or not. It was obviously owing to the marriage of Kumari Sneh Lata that the plot wastransferred in the name of Dharampal, who happens to be the elder son of Kashmiri Lal.Thus, apparently no money was paid by Dharampal for allotment of the land to the DDA andobviously, it was paid in 1963 by Kashmiri Lal. The money was also spent in constructionby the father Kashmiri Lal. Occupation and enjoyment of the house were with the entirefamily right from the beginning and till today the family is residing in the house. Apart fromthat, the plaintiff has admitted that when he came to Delhi on posting at All India Institute ofMedical Sciences, he started living in the rented accommodation, as there was a paucity ofaccommodation for his stay in the house in question. Thus, all the facts and circumstancesindicate that it was a family property and not the exclusive property of the plaintiff – Dharampal.Thus, the Courts below have acted not only perversely but in a most arbitrary and illegalmanner, while accepting the ipse dixit of the plaintiff and in decreeing the suit. Such findingof facts which are impermissible and perverse cannot be said to be binding. The legalinferences from admitted facts have not been correctly drawn.
18. Merely the fact that house tax receipt, electricity and water bills and otherdocuments are in the name of Dharampal would carry the case no further, as it was thefather who got the name changed of Kumari Sneh Lata in question in the name of Dharampal.The receipts were only to be issued in the name of the recorded owner, but Dharampal neverresided in the house as he was in service out of Delhi, obviously, the amount was paid byfamily, not by Late Dharampal. Thus, we find that no benefit could have been derived fromthe aforesaid documents.
19. In view of the aforesaid, we have no hesitation in allowing the appeals anddismiss the suit filed by the plaintiff-respondents. Thus, we order accordingly. No order asto costs. Pending application, if any, shall stand disposed of.

Decision : Appeals allowed.