TMI Blog2007 (4) TMI 752X X X X Extracts X X X X X X X X Extracts X X X X ..... cipal Corporation confers upon him a variety of rights and obligations. He had rights and obligations in relation thereto because, according to him, in relation to the said property vis-a-vis Calcutta Municipal Corporation, he was residing with his wife, he allegedly inducted tenants and had been realizing rent from them. We have seen hereinbefore that the Appellant examined herself as a witness. The wife of Amal even did not do so. An adverse inference should be drawn against her. Daughter of Respondent No. 1 (Respondent No. 2) who was born in 1954 examined herself as DW-1. She evidently had no knowledge about the transaction. She could not have any. At least it was expected that Respondent No. 1 might have gathered some knowledge keeping in view the conduct of her husband vis-a-vis the sisters in relation to the property. Even otherwise, she was a party to the suit. No evidence, worth the name, therefore, had been adduced on behalf of Respondent No. 1. Interestingly, Amal pleaded ouster. If ouster is to be pleaded, the title has to be acknowledged. Once such a plea is taken, irrespective of the fact that as to whether any other plea is raised or not, conduct of the parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ju, JJ. JUDGMENT S.B. Sinha, J. 1. One Dr. Ashutosh Ghosh (Dr. Ghosh), a Physician practising at Rangoon was a prosperous person. He purchased two immovable properties in Calcutta in the year 1927 situate at 79/3A and 79/3B, Lower Circular Road, Calcutta, in his own name. Suprovabala was his wife. They at the relevant time had seven daughters, including the Appellant herein and a son named, Amal. Respondent Nos. 1 and 2 are his wife and daughter. Suprovabala intended to purchase the premises situate at No. 24, Convent Road, Calcutta, belonging to the estate of late Edwin St. Clair Vallentine. She executed a power-of- attorney in favour of one Atul Chandra Ghosh, brother of Dr. Ghosh, the relevant portion whereof reads as under : ... Whereas I have decided to purchase premises No. 24, Convent Road, Calcutta, belongings to the estate of late Mr. Edwin St. Clair Vallenine at the price of ₹ 26,000 (Rupees twenty six thousand only) but the agreement for sale has not yet been entered into with the Administration General of Bengal as Administrator to the Estate of Edwin St. Clair Vallentine now therefore know. Yet that I hereby appoint Atul Chandra Ghosh of 79/3-A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o claim their right to take appropriate legal action to recover their share of the said premises at an appropriate time, which was allowed by the High Court. Three out of the seven daughters of Dr. Ghosh filed a suit for partition against Amal on 19.9.1973 claiming 3/7th share of the property of their mother, a final decree for partition as also a decree for accounts. 4. Amal in his written statement filed in the suit, inter alia, contended that Suprovabala was benamdar of Dr. Ghosh. Suprovabala, therefore, had only a limited interest under the Hindu Women's Right to Property Act, 1937 and on her death Amal became the absolute owner. Amal died during pendency of the suit whereupon Respondent Nos. 1 and 2 were substituted in his place. 5. Before the learned trial Judge, Plaintiff - Binapani examined herself as P.W.-3. A common relation of the parties being Chandi Charan Ghosh examined himself as P.W.-4. Respondent No. 1 did not examine herself. Putul Ghosh, daughter of Amal who was born only in 1954 examined herself as D.W.-1. 6. The learned trial Judge decreed the suit holding that Dr. Ghosh intended to purchase the said property for the benefit of his wife. The trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court cursorily dealt with the question of intention in relation to the transaction in question. Our attention has also been drawn to Section 5 of the Power-of-Attorney Act, 1882. 10. Mr. Bhaskar P. Gupta, learned senior counsel appearing on behalf of Respondent Nos. 1 and 2, on the other hand, would submit that : (i) the suit property having been acquired in the year 1935, as purchases of property in the benami name of wives being prevalent at the relevant time, the case was required to be considered from that angle. (ii) a transaction in benami may be entered into for no apparent reason. (iii) doctrine of advancement has no application in India. (iv) Benami Transactions (Prohibition) Act, 1988, has no retrospective effect. The source of money being an important factor for determining benami nature of transaction, the onus lay on the Plaintiffs. (v) the parties being governed by the Dayabhaga School of Hindu Law, Dr. Ghosh could not have made a gift of immovable property in favour of his wife. 11. Before embarking upon the rival contentions of the parties, we may also notice that Dr. Ghosh had a life insurance. Suprovabala was his nominee and after his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and sisters. Son would perform his duties not only by providing maintenance to the daughters, to which they were otherwise entitled to, but also they were to be married. Dr Ghosh's eagerness to purchase the property is evidenced by two telegrams dated 20th and 24th September, 1935. 15. Mr. Gupta's submission that the said telegrams are relevant to show Dr. Ghosh's personal involvement in the transaction may not be of much significance. They were at Rangoon. Negotiations for purchase were to be held with the Administrator General of Bengal. Earnest money was to be deposited. The deed was to be drawn up. In those days, a Hindu wife was supposed to maintain some 'purdah'. We do not know whether she knew English or not. She, therefore, was not expected to draft a telegram and go to post office for the purpose of transmission thereof. But, the power-of-attorney executed by her plays an important role. The power-of-attorney must have also been drafted at the behest of Dr. Ghosh. Ordinarily, Suprovabala would be described as the wife of Dr. Ghosh. She was not described as the daughter of Babu Rangalal Ghosh. Dr. Ghosh himself was an attesting witness. He being in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be of importance but then the backdrop of events and the manner in which the power-of-attorney was drafted as well as the very fact that Dr. Ghosh himself became an attesting witness thereto, the same plays very significant role. If in the light of the so-called practice as then existed, i.e., to purchase property in the name of his wife, Dr. Ghosh intended to enter into a benami transaction, his intention, therefor, would have been clear and unambiguous or in any event, the same would have been explicit from the surrounding circumstances. They were not. Moreover, immediately after the purchase, the name of Suprovabala was mutated. She started paying tax. There is no evidence to show that Dr. Ghosh took an active role except providing for the amount in regard to the construction of the house. Evidence on records clearly show that Suprovabala had also been looking after the constructions of the house alongwith Chandi Charan Ghosh (P.W. 4). 19. The fact, which we have noticed hereinbefore, viz., that an insurance was also made in her name is also a pointer to show that Dr. Ghosh intended to provide sufficient money at the hands of his wife. [See Ext. A (13)] Ordinarily, a son wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hased. All that is relevant to enquire is: has the property been purchased by the female, or has it been gifted to her by her husband? Now, it seems clear that in deciding under which class of properties specified by Clauses (b) (d) of Section 10 (2) the present property falls, it would not be possible to entertain the argument that we must treat the gift of the money and the purchase of the property as one transaction and hold on that basis that the property itself has been gifted by the husband to his wife. The obvious question to ask in this connection is, has the property been gifted by the husband to his wife, and quite clearly a gift of immovable property worth more than ₹ 100 can be made only by registered deed. The enquiry as to whether the property was purchased with the money given by the husband to the wife would in that sense be foreign to Section 10 (2) (d) gift of money which would fall under Section 10 (2) (b) if converted into another kind of property would not help to take the property under the same clause, because the converted property assumes a different character and falls under Section 10 (2) (d). Take a case where the husband gifts a house to his wif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cance. Apart from the fact that Dr. Ghosh himself was keen to see that the property is purchased for the benefit of his wife, we must notice that it was also mutated in her name. When a mutation takes place with the knowledge of the husband, although not conclusive, would provide for a link in the chain. 25. To decipher the intention of the parties, this Court must go back to the societal situation as was prevailing in 1935. Dr. Ghosh as a man of ordinary prudence wanted to make provision to protect and insure the welfare of his seven daughters and wife. In a case of this nature, the answer to such a question has to be in the affirmative. Question of intention is always relatable and peculiar to the facts of each case. [See Nawab Mirza Mohammad Sadiq Ali Khan and Ors. v. Nawab Fakr Jahan Begam and Anr. AIR 1932 PC 13]. 26. In Chittaluri Sitamma and Anr. v. Saphar Sitapatirao and Ors. AIR 1938 Mad 8, it was held : .... The mere suspicion that the purchases might not have wholly been made with the lady's money will certainly not suffice to establish that the purchases were benami, nor even the suspicion that moneys belonging to Jagannadha Rao whether in a smaller measure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is question, no absolute formulae or acid test, uniformly applicable in all situations, can be laid down ; yet in weighing the probabilities and for gathering the relevant indicia, the Courts are usually guided by these circumstances: (1) the source from which the purchase money came ; (2) the nature and possession of the property, after the purchase ; (3) motive, if any, for giving the transaction a benami colour ; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar ; (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. 30. Source of money had never been the sole consideration. It is merely one of the relevant considerations but not determinative in character. [See Thulasi Ammal v. Official Receiver, Coimbator AIR 1934 Mad 671]. 31. In Protimarani Debi and Anr. v. Patitpaban Mukherjee and Ors. 60 CWN 886, the Calcutta High Court observed : The correct proposition was stated in Official Assignee of Madras v. Natesha Gramani (1) AIR 1927 Mad 194. There is no presumption that when a property stands in the name of a female the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon a decision of the Patna High Court in Shahdeo Karan Singh and Ors. v. Usman Ali Khan AIR 1939 Pat 462, wherein it was held that obtaining mutation of names do not establish a gift. This may be so. But, however, in this case, we are concerned with the conduct of the parties. 35. The fact that Amal allowed the order of mutation to attain finality, thus, would also be a pointer to suggest that despite such bitter relationship between the parties he accepted the same ; more so, when mutation of one's name in the Municipal Corporation confers upon him a variety of rights and obligations. He had rights and obligations in relation thereto because, according to him, in relation to the said property vis-a-vis Calcutta Municipal Corporation, he was residing with his wife, he allegedly inducted tenants and had been realizing rent from them. 36. Tenants could have denied his title. He would not have been given permission to make any additions or alterations. He, in absence of an order of mutation, might not be given other amenities, if he had filed such an application in his own name. He, therefore, knew that mutation of names of all the parties in the Calcutta Municipal Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property. 42. It was further held : 21. The High Court has erred in holding that even if the Defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the Plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the Defendants are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be any doubt whatsoever in regard to the legal position that in respect of other properties of Dr. Ghosh, she had a limited interest. 47. Reliance by the High Court upon Mulla's Hindu Law for the proposition that husband could not give immovable property as stridhan to his wife, in our opinion, is wholly misplaced. Mulla has relied upon a decision of the Madras High Court in Venkata Rama Rau v. Venkata Suriya Rau and Anr. ILR (1877) Mad 281 at 286. What Mulla in fact says is that any gift of immovable property under Dayabhaga law would not become wife's stridhan. It is, however, not in dispute that the amount necessary for purchasing an immovable property can be a subject-matter of gift by a person in favour of his wife. [See K. K. Das (supra)]. 48. We are also really not concerned with such a situation as the situation had undergone a sea change after coming into force of the Transfer of Property Act. The Transfer of Property Act prescribes that any clog on transfer of property right to transfer would be void. Dayabhaga does not prohibit gift of immovable property in favour of his wife by her husband. It merely says that Dayabhaga did not recognize it to be he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... motive why the property was purchased benami are by far the most important tests for determining whether the sale standing in the name of one person, is in reality for the benefit of another. We would examine the present transaction on the touchstone of the above two indicia. *** *** *** 18. It is well-settled that intention of the parties is the essence of the benami transaction and the money must have been provided by the party invoking the doctrine of benami. The evidence shows clearly that the original Plaintiff did not have any justification for purchasing the property in the name of Ramayee Ammal. The reason given by him is not at all acceptable. The source of money is not at all traceable to the Plaintiff. No person named in the plaint or anyone else was examined as a witness. The failure of the Plaintiff to examine the relevant witnesses completely demolishes his case. 50. For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly. The judgment of the trial court is restored. The appeal is allowed. In the peculiar facts and circumstances of this case, however, there shall be no order as to costs. - - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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