9911796707
TMI Blog2023 (6) TMI 914X X X X Extracts X X X X X X X X Extracts X X X X ..... t, Lila). Lila, who happened to be a house-wife, was a mere name lender and she did not contribute any single farthing towards consideration money since she had no independent income at the relevant time of purchase of the suit property. Sailendra got the building plan sanctioned in the name of Lila and by spending money from his own fund constructed two-storied building thereon. He thereafter died intestate on 29.5.1999 leaving behind his widow, Lila, the plaintiff as his son and one daughter, the defendant no. 2, namely Sumita Saha (in short, Sumita), who according to Section 8 of Hindu Succession Act have inherited 1/3rd share each of the suit property and Sekhar stayed in the suit property till 11.5.2011 and since then, he started leaving apart. Sekhar thereafter approached the defendants to effect partition of the suit property by metes and bounds but the defendants refuted the claim of partition of Sekhar and hence, the suit. 3. Records reveal that both the defendants defended the suit by filing separate written statements. Crux of the defence taken by Lila and defendant no. 2 in their written statement is as follows: i) Lila purchased the suit property from her 'stridhan' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Advocate representing Sekhar, the appellant herein submits that Lila claimed that she purchased the suit property and constructed a building thereon from her 'stridhan' properties but no particulars of 'stridhan' properties have been disclosed and Lila did not disclose wherefrom she acquired the 'stridhan' properties and she did not disclose the value of her 'stridhan' properties. He contends that from the evidence of Lila it is graphically clear that she was a mere house-wife and she had no independent income of her own whereas Sailendra had a business of soap and oil and that Sailendra was the only earning member of the family at the relevant time of purchase of the suit property. According to Mr. Poddar the learned Court below should have considered whether the story that Lila purchased the suit property from her own fund is probable or not. He asserts that the defendants failed to prove that suit property was purchased from Lila's 'stridhan' properties and hence, Court should have decreed the suit. He submits that cavil between the parties should be given a clear burial by declaring share of Sekhar and by ordering partition of the suit property. To bolster his submission, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Burden lies upon Lila to prove her source wherefrom she collected consideration money and expenses for construction of building since it is demonstrable from the evidence that she had no independent income. He submits that Lila lost his father at her age of 2 years and she was brought up by her maternal uncle and hence, the story that she came to possess jewellery and valuable articles before and at the time of her marriage has no leg to stand on. 11. Crucial question which is to be answered in the present appeal is whether the transaction i.e. the purchase of suit property under registered deed of sale dated 20.01.1970 by Lila is benami transaction. 12. Benami Transaction (Prohibition) Act, 1988 defines the expression, 'benami transaction' and equipped the appropriate authority with powers to acquire benami property. Provisions of three sections being Sections 3, 5 & 8 of the 1988 Act, which was initially a 9-section legislation, came into force with effect from 5.9.1988 whereas the remaining provisions thereof came into force from the date being 19.9.1988. Section 3 being a prohibitory legislation cannot have retrospective operation but the Section 2(a) of the Act which is a pi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of DW-2 and Lila had produced all the documents relating to suit property. 17. During course of hearing, both the appellant and the respondents advanced their arguments on the issue relating to 'burden of proof'. So, main question centred around the present appeal is whether it was Sekhar who had to discharge the burden to prove that the subject sale transaction was benami transaction or it was Lila who was to prove that she purchased the suit property from own fund or 'stridhan' properties detailing the source of such fund and disclosing every details of payment of consideration money. 18. The question relating to burden of proof has been set at rest in the judgment of Jaydayal Poddar (Deceased) thr. Lrs. -vs. Mst. Bibi Hazra reported in AIR 1974 SC 171 in which the Hon'ble Apex Court ruled as follows: "It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact or benami or establish circumstances unerringly and reasonably ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit property, Sekhar used to behave well with her. 21. Mr. Poddar tried to convince us that since both the parties have led evidence, question of burden of proof has lost its significance and Court should pass judgment appreciating evidence let in by the parties and since, Lila failed to disclose the particulars of her 'stridhan' properties and since, Lila admitted that she was a home-maker throughout her life having no independent income of her own, the learned Court below should have come to the conclusion that Lila was nothing but a mere name-lender. 22. At the cost of reiteration, it may be stated that a Court is required to bear in mind the well-settled principles to the effect that the burden of showing that a transfer is a benami transaction always lies on the person who asserts it. In the Indian society, if a husband supplies the consideration money for acquiring property in the name of his wife, such fact does not necessarily imply benami transaction. Source of money is, no doubt, an important factor but not a decisive one. The intention of the supplier of the consideration money is the vital fact to be proved by the party who asserts benami. In other words, even if it ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
