TMI Blog1979 (12) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... (Died in (P.I.) (Deft.) | Sept. 1955) | | | ----------------------- | | | | | Duley Dhaney Deep | Singh Singh Singh | | | --------------------------------------------------------------------- Himmat Dalip Singh Singh (P.2.) (Died in Sept. 56) Gad Singh, Bharat Singh, Bhim Singh (plaintiff No. 1) and Kan Singh (defendant) are the sons of Sur Singh. Bharat Singh died unmarried in September, 1955. Gad Singh died thereafter leaving behind him three sons, Duley Singh, Dhaney Singh and Deep Singh. Dalip Singh, the second son of plaintif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Maharaja of Bikaner were living in the suit house which then belonged to the Maharaja. The defendant filed an application for purchasing the house. The proceedings had not terminated when the defendant left the service of the Maharaja and went to Banaras for higher studies. On his return from Banaras, he joined the service of the Maharaja in the civil department of Bikaner. After a long time on account of the joint efforts of Bharat Singh and the defendant, the sale of the house was sanctioned. Bharat Singh who was living jointly with him paid the consideration for the sale on November 4, 1939 'out of the joint income.' Thus according to the defendant, Bharat Singh and he became its owners from the date of payment of the consideration. He further pleaded that 'if the patta of the property had been granted in the names of the plaintiffs due to some reasons, political and other surrounding circumstances and for the safety of the property, it cannot affect the right of the defendant'. It was also stated that Bharat Singh and the defendant had not executed any sale deed in favour of the plaintiffs and so they could not become owners of the suit house. In another ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiffs' permission. The learned District Judge also held that the defendant had failed to prove that the suit house had been acquired by him and Bharat Singh with their joint fund. Accordingly he decreed the suit for possession of the house in favour of the plaintiffs and further directed that the defendant should pay damages for use and occupation at the rate of ₹ 50 per month from September 20, 1956 till the possession of the house was restored to them. Aggrieved by the decree of the trial court, the defendant filed an appeal before the High Court of Rajasthan in Civil First Appeal No. 31 of 1960. The High Court rejected the case of the plaintiffs that the consideration for the house had been paid by Bharat Singh out of the funds belonging to them and also the case of the defendant that the house had been purchased by Bharat Singh with the aid of joint family funds belonging to himself and the defendant. The High Court held that the house had been purchased by Bharat Singh out of his own money in the names of the plaintiffs without any intention to confer any beneficial interest on them. It further held that the suit house belonged to Bharat Singh and on his death, Gad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e mother of plaintiff No. 2 had died. He was about eight years of age in 1940 and he and his younger brother, Dalip Singh were under the protection of Bharat Singh who was a bachelor. They were staying with him in the suit house. The defendant also was residing in it. The plaintiffs who claimed title to the property under the patta in the course of the trial attempted to prove that the sum of ₹ 5,000 which was paid by way of consideration for the patta by Bharat Singh came out of the jewels of the mother of plaintiff No. 2 which had come into the possession of Bharat Singh on her death. The plaintiff No. 2 who gave evidence in the trial court stated that he had not given any money to Bharat Singh for the purchase of the house but he had come to know from his father, plaintiff No. 1 that it had been purchased with his money. Jaswant Singh (P.W. 2) and Kesri Singh (P.W. 3) to whose evidence we will make a reference in some detail at a later stage also stated that they had heard from Bharat Singh that the jewels of the mother of plaintiff No. 2 were with him suggesting that they could have been the source of the price house. Plaintiff No. 1 who could have given evidence on the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r not arose for consideration in the case. Even in the appeal before the High Court, the main question on which arguments were addressed was whether the transaction was a benami transaction or not. Merely because the plaintiffs attempted to prove in the trial court that the money paid for purchasing the house came out of their funds, they cannot in the circumstances of this case be prevented from claiming title to the property on the basis that even though Bharat Singh had paid the consideration therefor, plaintiff No. 2 alone was entitled to the suit house. Reference may be made here to the decision of this Court in Bhagwati Prasad v. Shri Chandramaul(1) where the Court observed as follows:- There can be no doubt that if a party asks for a relief on a clear and specific grounds, and in the issues or at the trial, no other ground is covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new........But in considering the application of this doctrine to the facts of the present case, it is necessary to bear in mind the other principle that considerations of form cannot over-rid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, which was very confused, she tried to say that she paid that purchase-money to her mother. This was clearly untrue: as both Courts have found. The fact, therefore, remains that the properties purchased by the sale proceeds were purchased no doubt in Hafiz Boo's name, but were purchased out of funds emanating from her mother's estate. This circumstance no doubt, if taken alone, affords evidence that the transaction was benami, but there is, in their Lordships' opinion, enough in the facts of the case to negative any such inference. Moreover no plea was raised on behalf of the defendant before the High Court in this case contending that the High Court should not go into the question whether the transfer under the patta was a benami transaction or not. We, therefore, reject the above contention and proceed to examine whether the High Court was right in arriving at the conclusion that the plaintiffs were only benamidars holding the property for the benefit of its real owner, Bharat Singh as the consideration therefor had emanated from him. Under the English law, when real or personal property is purchased in the name of a stranger, a resulting trust will be pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e transferor notwithstanding the execution of the conveyance. One common feature, however, in both these cases is that the real title is divorced from the ostensible title and they are vested in different persons. The question whether a transaction is a benami transaction or not mainly depends upon the intention of the person who has contributed the purchase money in the former case and upon the intention of the person who has executed the conveyance in the latter case. The principle underlying the former case is also statutorily recognized in section 82 of the Indian Trusts Act, 1882 which provides that where property is transferred to one person for a consideration paid or provided by another person and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee, the transferee must hold the property for the benefit of the person paying or providing the consideration. This view is in accord with the following observations made by this Court in Meenakshi Mills. Madurai v. The Commissioner of Income-Tax, Madras(1):- In this connection, it is necessary to note that the word 'benami' is used to denote two classes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turn the scale. The sending of the deed for the inspection of the lady's father-in-law, which the Chief Court held to be established, was clearly a representation that the property was hers, and their Lordships agree with the learned Judges in the conclusion to which they came. In Manmohan Dass Ors. v. Mr. Ramdei Anr. (1) Lord Macmillian speaking for the Judicial Committee observed: In order to determine the question of the validity or invalidity of the deed of gift in question it is of assistance to consider. 'the surrounding circumstances, the position of the parties and their relation to one another, the motives which could govern their actions and their subsequent conduct.' Dalip Singh v. Nawal Kanwar 35 I.A. 104 (P.C.) always remembering that the onus of proof rests upon the party impeaching the deed. The principle enunciated by Lord Macmillan in the case of Manmohan Dass Ors. (supra) has been followed by this Court in Jayadayal Poddar (deceased) through his L. Rs. Anr. v. Mst. Bibi Hazara Ors.(2) where Sarkaria, J. observed thus: It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 motives governing their action in bringing about the transaction and their subsequent conduct etc. Now we shall refer to the facts of the present case. When the suit house was purchased from the Maharaja of Bikaner, Bharat Singh was a bachelor and he did not marry till his death in the year 1955. The wife of Bhim Singh had died before 1939 leaving behind her two young children. Plaintiff No. 2 was about eight years old in the year 1939 and his younger brother Dalip Singh was about two years old. These two children were living with Bharat Singh. Bhim Singh, plaintiff No. 1 was almost in indigent condition. The defendant had by then acquired a degree in law and also had practised as a lawyer for some time. It is stated that the defendant had again been employed in the service of the State of Bikaner. The patta was issued in the names of plaintiffs 1 and 2 at the request of Bharat Singh. Even though the defendant stated in the written statement that the patta had been taken in the names of the plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse of that letter stated that he had seen that the patta had been executed in his favour; and that the patta contained his name. The defendant does not appear to have sent any reply to Exhibit A. 124 nor did he call upon the plaintiffs to return the patta to him. He did not also file a complaint stating that the patta had been stolen by plaintiff No. 2. We are of the view that there is no reason to disbelieve the evidence of plaintiff No. 2 that the patta had been handed over to him by Bharat Singh on his passing the B.Sc. examination. This conduct of Bharat Singh establishes that it was the intention of Bharat Singh when he secured the patta from the State Government in the names of the plaintiffs the plaintiff No. 2 whom he loved should become the owner. It is no doubt true that the name of plaintiff No. 1 is also included in the patta. It may have been so included by way of abundant caution as plaintiff No. 2 was a minor when the patta was issued. The above circumstance is similar to the one which persuaded their Lordships of the Privy Council in the case of Mohammad Sadiq Ali Khan (supra) to hold that the property involved in that case belonged to the person in whose favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the course of his cross-examination, Dr. Himmat Singh (D.W. 6) referred to what Bharat Singh had told him a few months prior to his death. The substance of his deposition is found in the judgment of the trial court, the relevant portion of which reads thus: D.W. 6 Dr. Himmat Singh is the Secretary of the Sardul Club, Bikaner. He is the Senior Eye-Surgeon in the Government Hospital, Bikaner. He has stated that Bharat Singh was the member of Sardul Club. A sum of ₹ 425/6/-remained outstanding against him till the year 1955. This amount was received on 28-10-1955. He has said that he does not know who deposited this amount. On the merits of the case, he has stated that he intimately knew Bharat Singh and members of his family. Bhim Singh and his sons Himmat Singh and Dalip Singh used to live in this house. Bharat Singh took this house for Bhim Singh and Himmat Singh. Four months before his death, Bharat Singh told the witness that he had already taken the house for Bhim Singh and Himmat Singh and that whatever else would remain with him shall go to them. Dr. Himmat Singh refutes the defendant's stand and supports the plaintiff's case. It was argued on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en place at or about the time of the transaction and not by statements made several years after the date of the transaction. In support of the above contention, the learned counsel for the defendant relied on the decision of the House of Lords in Shephard Anr. v. Cartwright Anr.(1). The facts of that case were these: In 1929, a father, with an associate, promoted several private companies and caused a large part of the shares, for which he subscribed, to be allotted in varying proportions to his three children, one of them being then an infant. There was no evidence as to the circumstances in which the allotments were made. The companies were successful and in 1934 the father and his associate promoted a public company which acquired the shares of all the companies. The children signed the requisite documents at the request of their father without understanding what they were doing. He received a cash consideration and at various times sold, and received the proceeds of sale of, their shares in the new company. He subsequently placed to the credit of the children respectively in separate deposit accounts the exact amount of the cash consideration for the old shares and round su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n every text book that I have consulted and supported by authority extending over a long period of time. I will take, as an example, a passage from Snell's Equity, 24th ed., p. 153, which is as follows: The acts and declarations of the parties before or at the time of the purchase, or so immediately after it as to constitute a part of the transaction, are admissible in evidence either for or against the party who did the act or made the declaration. ... But subsequent declarations are admissible as evidence only against the party who made them, and not in his favour. The above passage, we are of the view, does not really assist the defendant in this case. What was held by the House of Lords in the case of Shephard Anr. (supra) was that the presumption of advancement could be displaced only by a statement or conduct anterior to or contemporaneous to the purchase nor could any conduct of the children operate against them as admissions against their interest as they acted without the knowledge of the facts. In the instant case, we are concerned with the conduct and declarations of Bharat Singh subsequent to the transaction which were against his interest. The evidence regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiff to establish that the property acquired was her personal property and not the property of the waqf. It was next contended that the defendant had spent money on the repairs and reconstruction of the building subsequent to the date of the patta and that therefore, he must be held to have acquired some interest in it. We have gone through the evidence bearing on the above question. We are satisfied that the defendant has not established that he had spent any money at all for construction and repairs. Even if he has spent some money in that way with the knowledge of the actual state of affairs, it would not in law confer on the defendant any proprietary interest in the property. It is also significant that neither Gad Singh during his life time nor his children after his death have laid any claim to a share in the suit house which they were entitled to claim alongwith the defendant if it was in fact a part of the estate of Bharat Singh. Their conduct also probabilities the case of the plaintiffs that Bharat Singh did not intend to retain for himself any interest in the suit house. On the material placed before us, we are satisfied that the transaction under which th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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