TMI Blog2001 (3) TMI 1072X X X X Extracts X X X X X X X X Extracts X X X X ..... of their family. On enquiries made by plaintiff No. 2 it was found that the Corporation would transfer the lease to only one person's name. At that time plaintiff No. 1 being seriously ill and apprehending that he would die by undue influence forced his daughters to state that they have no objection for transfer of the tenancy from Smt. Stella Martins to the defendant, he being the only son and that he, would hold the same in trust for his father and sisters. At the time of filing of the application for transfer of the lease the defendant was residing at Bombay. The application was filed on 18-4-1985. The tenancy of the schedule premises was transferred to his name on 2-8-1985. Though the defendant was residing at Bombay and he had ceased to reside in the premises from 1970, the transfer of tenancy was made in his name. 3. That by an order of the Government of Karnataka dated 18-5-1978 sanction was accorded to the proceedings of the administration with an observation that care should be taken to locate the right occupants while disposing the quarters. The plaintiff No. 2 having lived in the schedule premises all her life and being the existing occupant of the schedule premi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wish of the deceased mother and first plaintiff to transfer all rights and interest in favour of their son and not in favour of their married daughters. As per the Government Order the sale deed was executed in favour of the defendant by the Corporation. It is thereafter the plaintiffs except the first plaintiff apprehending that they may be asked to vacate have approached this Court with a false claim. It is further averred that the entire sale consideration towards purchase of the suit schedule premises was contributed by him and not by other children. The money was not paid either by the first plaintiff or any other children much less ₹ 5.000.00 by the plaintiffs or at stages. Plaintiff No. 2 who is in exclusive enjoyment of the schedule property has no right to remain in the schedule property. She is married and has to set up her own house. She is attempting to grab the property by fabricating a story of co-ownership and her contribution towards sale consideration. He has not asked the second plaintiff at any stage to move out of the house or threatened to push her out of the house. He specifically states that sale price of suit property was contributed by him and not by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contrary evidence discloses that the cheque for ₹ 48,734.00 was issued by the second plaintiff from her account. Further the evidence on record discloses a sum of ₹ 35,636.00 was transferred from the account of the 1st plaintiff to the second plaintiff for payment of the sale consideration and the balance amount was arranged by the second plaintiff and not a single pie out of the aforesaid sale consideration has been contributed by the defendant and therefore the findings of the Court below in this regard is totally illegal and contrary to the evidence on record. He further submitted once it is demonstrated that the consideration for the purchase of the schedule property has flown from plaintiffs as well as the defendant as contended by them all of them become co-owners. Though the first plaintiff has contributed a major part of the sale consideration now that after filing of the suit he died his share should devolve on his children in equal proportion and plaintiffs 2 to 4 and defendant having contributed equally all of them would be entitled to an equal share in the suit schedule property. Therefore, he submits the judgment of the Court below is liable to be set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argued before the Court below, the learned trial Judge did not accept this argument because of the finding which he had recorded that the defendant purchased the schedule property out of his own funds and therefore he did not go into the question of the said plea of benami. However, before me it was contended that in the event this Court were to reverse the finding of the Court below on the question of consideration for the purchase having been provided by the plaintiffs then the said transaction amounts to benami transaction as defined under the 1988 Act and in view of the prohibition contained in the 1988 Act no relief could be granted to the plaintiff. 12. In view of the aforesaid rival contentions canvassed before me, now the question that arises for my consideration in this , appeal are as under :-- (a) Whether for purchase of the schedule premises, the entire sale consideration was provided by the defendant or the consideration was provided by the plaintiffs and defendant as contended by them? (b) In the event it is to be held that the plaintiffs and defendant are co-owners of the schedule property whether the said transaction amounts to a benami transaction and is h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... She has also spoken to the fact that her father was able to maintain them after 1984 and he was getting good pension in pounds. He was getting 100 and odd pounds per month. She has denied the suggestion that the defendant was sending money for the maintenance of her father and herself. 15. PW 3 is the third plaintiff in the suit who has also spoken about the contribution made by plaintiffs 2 and 4 and defendant in a sum of ₹ 5,000.00 for purchase of the schedule property. She has said that the sum of ₹ 5,000.00 was paid by her by way of a cheque. 16. PW4 is the manager of the bank who was examined to speak about S.B. Account No. 902 in United Commercial Bank. He has spoken about S.B. Account No. 902 being in the name of the first plaintiff. It is in his evidence that originally the said account was in the name of first plaintiff and his wife. After the death of Stells Martins in 1982, in 1983 he added the name of his son, the defendant to the said account. He has further deposed that he used to get cheques in pounds from Crown Agents, London and the bank used to purchase the cheques and convert the amount into rupees and credit the amount to the account every mont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiff and his wife up to 1982 and thereafter in the name of the first plaintiff and defendant which is relied on by the defendant to demonstrate that a sum of ₹ 35,636.00 is paid by the defendant to the second plaintiff for purchase of the schedule property. Similarly, Exs. D6. D7 and D8 are the pass books of the defendant to show his resourcefulness that he had necessary funds to purchase the suit schedule property. Exs. D9 to D11 is MO coupons showing that the defendant was sending money by money order to his mother. Ex. D43 is the pass book of Post Office Savings Account which shows a sum of ₹ 23.000.00 was withdrawn on 22-10-1982. Ex. D42isacer-tiflcate issued by Bharat Gears Limited, the employers of the defendant showing his total income for the period from 1-4-86 to 10-2-87 including the retirement benefits which were given to him on his retirement. Yet another document which is of assistance is Ex.D56 a letter written by the defendant to the third plaintiff where he has categorically admitted at page 7 that his father is the only person who helped in purchasing a plot at Bombay and in that regard he has received a sum of ₹ 10,000.00 which amount he ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w entries showing amount has come from Bombay clearances. No evidence is adduced by the defendant to show that those cheques are issued by him. It is on record that the third plaintiff, a resident of Bombay, has sent a cheque for ₹ 5,000.00 being her share of the consideration to her father which is credited to the account. That apart attempt was made by the defendant to contend that he had withdrawn a sum of ₹ 23,000.00 from the Post Office Savings Bank Account and the said amount has been credited to the Savings Bank Account of 901 and it is out of that money the sale consideration is paid. In another breath he says that the amount was given to the hands of the father i.e. the first plaintiff. If we carefully examine this aspect of the case, ₹ 23,000.00 was withdrawn by him in the year 1982 whereas the purchase of the schedule property is in the year 1986. Therefore, there is no nexus between the withdrawal of the amount in 1982 and payment of the consideration in 1986 when the account extract produced in Court do not disclose an entry showing the deposit of Rs, 23,000.00 into the account No. 901. Yet another version of the defendant is in 1987 when he quit his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by D42 and he had a sum of ₹ 23,000.00 as evidenced by D43 which amounts were deposited as Ex. D5 and therefore the sum of ₹ 35,636.00 which is paid to the second plaintiff is a money belonging to the defendant, a finding which is totally opposed to the material on record as discussed above. Further, he holds that it is not improbable that the defendant might have paid money to his father and he might not have deposited the amount in the said account but nevertheless when the father makes payment it is the money of his son. These findings are contrary to the admitted and proved material on record. Another reason given by the Court below for not believing the version of the plaintiffs is that they have not produced any documentary evidence to substantiate their contention that each one of them have contributed ₹ 5,000.00 and made the said payments to their father. In coming to the said conclusion, the learned trial Judge has ignored the evidence of the father which has remained unchallenged and the fact that the second plaintiff issued a demand draft for ₹ 48,000.00 as against the receipt of only ₹ 35,000.00 making out the remaining ₹ 13,000.00 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest in that common fund. This equitable adjustment of rights is subject to a contract to the contrary. If, therefore, there is evidence that two or more persons purchased the property or an interest in the property, then the rule in Section 45 of the Transfer of Property Act would be automatically attracted, unless the parties have contributed otherwise in the matter of their quantum of interest in the joint property. The fact that the property was purchased in the name of one of the co-owners, would not make a serious dent on the above rule of good conscience, provided however it is established by acceptable evidence that such purchase in the name of co-owner was by accident or by consent and that the consideration for such purchase emanates from a common fund. It is this rule of justice-equity and good conscience which is reiterated in the Indian Trusts Act by the provisions which deal with quasi trusts as they are styled to legal parlance. In Section 94 of the Indian Trusts Act, which is residuary in character, a provision is made to cover cases where the legal and equitable interest are not united in the same person. Section 94 of the Indian Trusts Act provides that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Dwarka Prasad v. Mahadeo Prasad, AIR 1930 All 631 wherein it is held :-- These cases all tend to establish that where there is a fund belonging jointly to several persons and one of those persons makes a purchase of land with that fund, that purchase inures to the benefit of all the persons entitled to share in the fund. This is really the principle laid down in Section 88, Trusts Act, 1882. It runs as follows : Where a trustee ............or other person bound in a fiduciary character to protect the interests of another person, by availing himself of his character, gains for himself any pecuniary advantage ..........he must hold for the benefit of such other person the advantage so gained. Illustration (d) to this section is as follows : A, a partner buys land in his own name with funds belonging to the partnership. A holds such land for the benefit of the partnership. 22. Therefore, it follows that if two or more persons purchase a property out of common fund the share of each of those persons would be the same as their interest in the common fund then the rule in Section 45 of the Transfer of Property Act would be automatically attracted. The f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rights as well as the sale deed was made out in the name of the defendant. When the defendant speaks about the deed of assignment he has admitted that the other legal heirs have an interest in the schedule property and by virtue of the assignment deed executed by them in his favour their rights stand extinguished. Admittedly, no such assignment deed has been produced before the Court. In the absence of any such assignment deed being produced and in view of the categorical admission that only with the consent of others, tenancy rights were transferred in his name it is obvious that all of them had a share in the suit property. Coupled with this all of them contributed funds for purchase of the property in the name of the defendant. Therefore, I have no hesitation to hold that the plaintiffs 2. 3 and 4 along with the defendant, after the death of the first plaintiff, are co-owners of the schedule property having equal share in the schedule property. Therefore, the trial Court was not justified in dismissing the suit of the plaintiff holding that the schedule property exclusively belongs to the defendant. 25. Point-No. (b) :-- Now the question for consideration is once it is held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 26. Subsequently, the Hon'ble Supreme Court in the case of Bhim Singh v. Kan Singh, laid down the tests to determine the benami transaction as under :-- 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 the 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 motive governing their action in bringing about the transaction and their subsequent conduct, etc., 27. The Hon'ble Supreme Court of India in the case of The Controller of Estate Duty. Lucknow v. Aloke Mitra has he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property should have been transferred in the name of a person for consideration paid or provided by another person. In other words, the consideration for the transaction should not have flown from the person in whose name the property is purchased. If the person in whose name the property is purchased also has contributed consideration for purchase of the property in his name along with others whose name is not reflected in the sale deed, it would not amount to a benami transaction as defined under the Act. 29. Secondly the object of such purchase, namely whether the property is purchased in the name of a person with the intention of evading public revenue and whether there is any dishonesty in not mentioning the names of the real contributors of the fund for purchase of the property is to be looked into. If the intention to purchase the property is to avoid payment of any tax or to conceal any unaccounted income, then before applying the provisions of the Act, a careful consideration of the nature of the transaction has to be looked into. 30. Viewed from that angle in the instant case, the specific stand taken by the defendant is that the entire consideration for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X
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