TMI Blog1998 (8) TMI 596X X X X Extracts X X X X X X X X Extracts X X X X ..... in the joint names of himself and the plaintiff, who was then a minor aged 16 years. The said Battu Mal was murdered in June, 1956. The plaintiff was prosecuted for the murder of said Battu Mal and was convicted and sentenced to imprisonment and factually when the suit was filed he was in prison. The plaintiff was the son of a cousin of the said Battu Mal. Battu Mal had no issue. In the plaint, though a claim was made that the plaintiff was the adopted son of Battu Mal, the suit was based not on that ground but expressly on the basis that Battu Mal purchased half of the property for him (the plaintiff). The suit was resisted by filing the Written Statement. It was, inter alia, stated in the Written Statement that there was no disclosure in the plaint as to how the property in dispute belonged to the plaintiff and Battu Mal equally. It was also stated that the said Battu Mal purchased the suit property exclusively for him by paying the entire sale consideration. There was no intention on the part of Battu Mal to share the property or gift half share to the plaintiff when the name of the plaintiff was jointly included in the sale deed. The Trial Court found that the entire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce is, thus, extremely meagre and unsatisfactory to rebut the presumption that the sale deed was obtained benami by Shri Battu Mal'. The Lower Appellate Court has also given reasons in the judgment why it differed with the conclusions reached by the Trial Court on this point. The Lower Appellate Court observed as follows :- In the present case, the plaintiff was not the son (natural or adopted) of Sri Battu Mal. The plaintiff was the son of Sri Battu Mal's cousin and from the mere fact that the plaintiff lived with and was loved by Sri Battu Mal, we cannot conclude that it was intended to purchase the house for the plaintiff's benefit. After referring to a judgment of the Nagpur High Court in Gopal Trimbak Bhate Vs. Keshoosa Vishnoosa Lad [AIR 1936 Nagpur 185], the Lower Appellate Court held as follows :- Relying on the case of 6 M I A 53 (P.C.) it was held that where a Hindu father purchases property out of his own money in the name of his son, the presumption is that he intended to make the purchase for his own benefit and not for the benefit of his son................................ ...I need hardly emphasize that the plaintiff being not the son of Sri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with some caution. I then took note of the law declared by the Supreme Curt in Bhim Singh Vs. Kan SIngh [AIR 1980 S.C. 727], wherein the true test fr determining whether a transaction was Benami or not was laid down to be that of intention and instead of presuming that the purchase made by Lala Battu Mal was Benami in so far as the plaintiff was concerned, and that the theory of advancement not being applicable in India, the plaintiff could not be said to have had an equal share in the property on account of his name having been joined as a co-purchaser by Lala Battu Mal unless it were proved that Lala Battu Mal had, in fact, made a gift of an equal share in the property when he purchased it in the plaintiff's name, I looked at the surrounding facts and circumstances in an attempt to find out the intention, with which Lala Battu Mal joined the plaintiff's name as a co-purchaser with him in the sale deed of the property in question and on that test according to the view taken by me, the surrounding facts and circumstances all lead t the inference that when Lala Battu Mal joined the plaintiff as a co-purchaser with him and described him as his adopted son living under his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le. In Bhim Singh's case (supra), this Curt, after considering the number of cases on an identical issue, held as follows ;- 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 t he 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 motives governing their action in bringing about the transaction and their subsequent conduct, etc. Again, in The Controller of Estate Duty, Lucknow Vs. Aloke Mitra [1981 (1) SCR 943], this Court considered the similar issue and held as follows : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmittee referred to the judgment of Sir George Farwell in Mst. Bilas Kunwar v. Dasraj Ranjit Singh, where it was observed that a benami transaction had a curious resemblance to the doctrine of English law that the trust of the legal estate results to the man who pays the purchase-money, and went on to say : .....the benamidar has not beneficial interest in the property or business that stands in his name; he represents, in fact, the real owner, and s far as their relative legal position is concerned he is a mere trustee for him. In Guran Ditta V. Ram, Ditta, the judicial Committee reiterated the principle laid down in Gopeekrist Gosain's case and observed that in case of a benami transaction, there is a resulting trust in favour of t he person providing the purchase money. In the light of the above exposition of law by this Court and in the light of the findings of the Lower Appellate Court, the judgment of the High Court, on reappreciation of evidence, cannot be upheld. We have noticed earlier the vagueness in the plaint about non- disclosure of how and on what basis the plaintiff claimed partition in the suit property. We have also noticed that the Trial Court and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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