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TMI Blog2002 (11) TMI 802X X X X Extracts X X X X X X X X Extracts X X X X ..... written statement. According to them, the defendant No. 1 mother purchased the property out of her stridhan. The father of the defendant No. 1 had contributed funds to her. She had obtained advance from the tenants. She also secured money by selling her share in some property. A suit for eviction was filed by the defendant No. 1 against the plaintiff. The present suit was a counter-blast thereto. 1.2 The plaintiff examined himself and three other witnesses. The defendant examined herself alone. The learned trial Judge after having consi-dered the evidence had decreed the suit ex parte against the defendant No. 3 and on contest against other defendants declaring 1/5th share of the plaintiff and each of the parties in the suit property. The case and the evidence : 2. Admittedly, the property was purchased on 1st of September, 1942 in the name of the defendant No. 1 by a registered deed of conveyance from Calcutta Improvement Trust for a consideration of ₹ 10,797 paid in five instalments. The 1/4th undivided share of a building at Baral Patra Lane was purchased in the name of the defendant No. 1 in 1945 along with the other brothers of the father. According to the plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 1958 and as such he had no personal knowledge about the family affairs. Therefore, his evidence cannot have much importance unless supported by other evidences. PW 2 admitted that the firm was established by his father but it was not known to him whether Sridam Bhar (father of the plaintiff) engaged the firm for the construction of the building or Sridam Bhar used to visit the firm when the witness s father was alive. He had no independent knowledge about the contract given by Sridam for con- struction of the house. Receipts were issued in the name of Smt. Usha Bhar showing payment of construction. However, he wanted to assert that the payments were made by Sridam, though the receipts were issued in the name of the defendant No. 1. The construction was complete in 1943. However, in cross-examination, he admitted that the firm was constituted into a partnership in 1967 and that in the society female members do not come out. He also admitted that it was not possible for him to ascertain wherefrom the money came or whether the money was actually paid by Sridam or the defendant No. 1. However, the file could not be traced. Therefore, relying on this evidence, it is very difficult to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowed : (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. 3.1 We may cite Jaydayal Poddar v. Mst. Bibi Hazra AIR 1974 SC 171; Amit Mukherjee v. Sm. Bibhabati Dasi AIR 1979 Cal. 344 and Krishnanand Agnihotri v. State of Madhya Pradesh AIR 1977 SC 796 for the above proposition. 3.2 Mt. Bilas Kunwar v. Desraj Ranjit Singh AIR 1915 PC 96, the Privy Council had laid down that where a purchase is made in the name of wife, the natural inference is that the purchase is a benami transaction; a dealing common to Hindus and Mohammadans alike. It has 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 this again follows the analogy of Common Law, that where a feoffment is made without consideration the use results to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i is taken, the ostensible title cannot be displaced except on clear and cogent proof of benami character. Several relevant circumstances bear on the question, but the source of the purchase money has always been considered to be of primary importance. The onus of proof is the same in the case of sale deed standing in the name of female. There is no presumption in law that merely because the female had her husband at the time of purchase, the sale deed must be presumed to be benami for the husband - Shiv Kumari v. Subudhi AIR 1932 Cal. 829. The principle and the case 4. Now, therefore, let us examine having regard to the materials placed before us how far the tests can be satisfied so far as the present case is concerned. Admittedly, there is no proof with regard to the motive of the purchase by the father in the name of the mother. Sridam was residing separately from his other brothers. He was carrying on business allegedly independent of his brothers. There is no allegation that Sridam was a member of the joint family and, therefore, in order to avoid his brothers, he had purchased the property in the name of the wife. Even Baral Para land was purchased along with the broth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ussed above, the conduct of the parties also does not indicate about the benami character of the transaction. Thus, having regard to the facts and circumstances of the case and the materials placed before us, we find none of the tests mentioned above seem to have been satisfied in the present case except the source of the money out of which the property was purchased, which we shall examine latter. Since the relationship between the parties was husband and wife, therefore, if the source can be traced out from the fund of the father, then having regard to the relationship, we may come to the conclusion that the property was purchased in the benami even though the motive is not proved or even though there are some fluid situation with regard to the conduct of the parties or even custody of the document. All these factors may be superseded by the relationship between the parties if the source can be traced from the husband. 4.2 Now, therefore, let us examine whether the plaintiff was able to establish that the fund for initial purchase came from the father and that the money by which the construction was made was also funded by the father. The plaintiff can be expected to succeed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -day expenses for maintaining the family. In her deposition, she asserted that for the maintenance of the family, the entire expenses were met by her husband. The entire income received by her as rent from the tenants had accumulated to provide funds for construction, which were met at stages. According to her, the last construction was made in 1980. Sridam died of 4th July, 1964. Therefore, the cost of construction after 1964 cannot be borne by Sridam. The plaintiff had never contended that he had contributed any amount for the construction. It appears that four deeds of lease were executed in 1962 by the defendant No. 1, which are exhibit B series. Admittedly, the defendant No. 1 used to get rent out of the property. Admittedly, there were tenants in the property. If Sridam used to meet the expenses of the maintenance of the family, then there is every likelihood of accumulation of these rents. Though, there is no direct proof that she had received advances from the tenants, but there were four deeds of lease with the tenants for a period of 21 years. Though there is no indication that any advance was made by the lessees yet having regard to the rate of rent, it might be a case t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion cannot lead us to hold in favour of the plaintiff. Section 3(2), Act X of 1988 5. A preliminary ground was taken by the appellant with regard to the maintainability of the suit in view of the provisions contained in section 4(1) of the Benami Transactions (Prohibition) Act, 1988. But the said ground is of no substance. The decision in Mithilesh Kumari v. Prem Behari Khare [1989] 2 SCC 95 on which the contention of the appellant could have been upheld has since been overruled in R. Rajagopal Reddy v. Padmini Chandrasekharan [1995] 2 SCC 630. In this decision a specific distinction has been made with regard to the retrospectively of the application of the 1988 Act in respect of the pending proceedings. It was held that the Act was not a declaratory one in nature and has not been given retrospective effect. Therefore, the provisions thereof cannot be retrospective if the defence is allowed before 5th of September, 1988. But in this case, such question arose with the filing of the plaint since the plaintiff wanted to assert benami and, therefore, the provision of the 1988 Act cannot be attracted to the present suit instituted in 1981. That apart, section 3(2) of the 1988 Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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