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TMI Blog2019 (4) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... fendant Nos. 1 to 3 were benami in nature. It is true that, at the time of purchase of the suit properties – Item Nos. I(a) to I(c), some financial assistance was given by Late G. Venkata Rao. However, as observed by this Court in various decisions, that cannot be the sole determinative factor/circumstance to hold the transaction as benami in nature. The plaintiff has miserably failed to establish and prove the intention of the father to purchase the suit properties for and on behalf of the family, which were purchased in the names of defendant Nos. 1 to 3. The intention of Late G. Venkata Rao to give the financial assistance to purchase the properties in the names of defendant Nos. 1 to 3 cannot be said to be to purchase the properties for himself and/or his family members and, therefore, as rightly observed by the High Court, the transactions of purchase of the suit properties – Item Nos. I(a) to I(c) in the names of the defendant Nos. 1 to 3 cannot be said to be benami in nature. The intention of Late G. Venkata Rao was to provide the financial assistance for the welfare of his sons and not beyond that. None of the other ingredients to establish the transactions as benami tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the original plaintiff that the suit schedule properties were as such joint family properties and/or they were purchased in fact by their late father G. Venkata Rao and the same was funded by their father. That, it was the case on behalf of the original plaintiff that the plaintiff was entitled to 1/4th share in all the said properties belonging to her father. It was the case on behalf of the original plaintiff that as the defendants refused to give her 1/4th share and gave an evasive reply, which prompted the plaintiff to demand in writing her share and for early settlement. That, thereafter she got a notice dated 18.07.1975 issued demanding partition and amicable settlement. But the defendants have failed to settle the matter. Therefore, the plaintiff instituted the aforesaid suit for partition and for recovery of her 1/4th share in the plaint schedule properties. 3. That the original defendants resisted the suit by filing the written statement. It was the case on behalf of the original defendants that the plaint schedule properties are exclusively owned by the defendants in their individual rights. Item No. 1 of the plaint schedule i.e., premises No. 32/1, Aga Abbas Ali R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 3000/borrowed by them under a pronote dated 11.06.1966 from the deceased and defendant No. 3. They are also due a sum of ₹ 1500/under another pronote dated 29.11.1966 payable to the deceased. The above amounts also carry interest at stipulated rates. The defendants serve their right to recover the said amounts through proper legal remedies. The plaintiff constructed a house bearing No. 150, Veerapillai Street with the said and financial assistance of her father. The plaintiff in active connivance with her husband ransacked the house No. 138, Aga Abbas Ali Road during the absence of the deceased and defendant No. 2 who had gone to Tirupathi and Madras. The plaintiff had made wrongful gains about this time somewhere in 1963. The plaintiff stayed with her husband at Chicmagalur only for about three months after her marriage. Thereafter she came with her husband to Bangalore and stayed with her father for nearly six years. The plaintiff is enjoying the special privilege and she has benefits bestowed on her, her husband and her children almost regularly. In addition to her father, defendant No. 2 was also looking after the needs of the plaintiff s family at considerable expen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted the decree for recovery of 1/4th share to the plaintiff which was hardly worth ₹ 400/( sic) available in the premises bearing No. 138/A (New No. 6) Armstrong Road, Civil Station, Bangalore. 4. Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court dismissing the suit and holding that the suit schedule properties were not the selfacquired properties of Late G. Venkata Rao and they were the properties of defendant Nos. 1 to 3, the original plaintiff preferred an appeal before the High Court. The High Court vide judgment and order dated 26.02.1999 set aside the judgment and decree passed by the learned trial Court holding that all though the properties were in the names of the original defendants, the transactions, in question, were benami in nature and in that view of the matter, the plaintiff had inherited 1/4th share therein. 4.1 Feeling aggrieved and dissatisfied with the judgment and order passed by the High Court dated 26.02.1999 allowing the appeal and quashing and setting aside the judgment and decree passed by the learned trial Court and, consequently decreeing the suit and holding that the plaintiff had inherited 1/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned counsel appearing on behalf of the appellants that it has come in evidence that the sale consideration was paid by the father of the plaintiff and defendant Nos. 1 to 3. It is submitted that DW1 admitted that he had borrowed a sum of ₹ 1,030/from his father Late G. Venkata Rao and that Late G. Venkata Rao sent a demand draft for a sum of ₹ 1,030/directly to the Tamil Nadu Housing Board. It is submitted that even the entire consideration for acquisition of suit properties Item Nos. 1(a) to 1(c) were paid by Late G. Venkata Rao. 6.4 It is further submitted by the learned counsel appearing on behalf of the appellant that the High Court having concluded that the purchase money of suit properties Item Nos. 1(a) to 1(c) came from Late G.Venkata Rao, thereafter, the High Court is not justified in concluding that the plaintiff was required to give further evidence to establish that the suit properties were acquired for the benefit of defendants or Late G. Venkata Rao had other reasons to acquire the suit properties in the names of his sons original defendant Nos. 1 to 3. Relying upon the decision of this Court in Thakur Bhim Singh v. Thakur Kan Singh (1980) 3 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disclose that after the marriage, the plaintiff and her husband were maintained by her father for a period of 10 years. It is submitted that, considering the aforesaid circumstances, as rightly observed by the High Court, the intention of Late G. Venkata Rao in providing financial assistance to his sons for acquisition of properties was to provide shelter to his sons and, therefore, the acquisition of the suit properties Items I(a) to I(c) by defendants, out of the financial assistance provided by their father Late G. Venkata Rao, did not involve any benami transaction. 7.2 It is further submitted on behalf of the defendants that, as such, the provisions of the Benami Transactions (Prohibition) Act would not be applicable retrospectively. It is vehemently submitted by the learned counsel appearing on behalf of the original defendants that, as observed and held by this Court in the case of Binapani Paul v. Pratima Ghosh (2007) 6 SCC 100, the burden of proving of benami nature of transaction lies on the person who alleges the transaction to be a benami. It is submitted that in the aforesaid decision, it is further observed and held by this Court that the source of money can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benami, the intention of the person who contributed the purchase money is determinative of the nature of transaction. It is further observed by this Court as to what the intention of the person who contributed the purchase money, has to be decided on the basis of the surrounding circumstance; the relationship of the parties; the motives governing their action in bringing about the transaction and their subsequent conduct etc. In the aforesaid decision, this Court considered the earlier decision of this Court in Jaydayal Poddar v. Bibi Hazra (Mst.) (1974) 1 SCC 3, more particularly para 6, and thereafter summed up in para 17 and para 18. Paras 17 and 18 of that judgment are as under: 17. The principle enunciated by Lord Macmillan in the case of Manmohan Das [AIR 1931 PC 175 : 134 IC 66 9 : 1931 ALJ 550] has been followed by this Court in Jaydayal Poddar v. Bibi Hazra (Mst) [(1974) 1 SCC 3 : (1974) 2 SCR 90] where Sarkaria, J., observed thus: (SCC p. 6, para 6) It is wellsettled 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 9.2 In Binapani Paul case (supra), this Court again had an occasion to consider the nature of benami transactions. After considering a catena of decisions of this Court on the point, this Court in that judgment observed and held that the source of money had never been the sole consideration. It is merely one of the relevant considerations but not determinative in character. This Court ultimately concluded after considering its earlier judgment in the case of Valliammal v. Subramaniam (2004) 7 SCC 233 that while considering whether a particular transaction is benami in nature, the following six circumstances can be taken as a guide: ( 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 cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... htly observed by the High Court, the transactions of purchase of the suit properties Item Nos. I(a) to I(c) in the names of the defendant Nos. 1 to 3 cannot be said to be benami in nature. The intention of Late G. Venkata Rao was to provide the financial assistance for the welfare of his sons and not beyond that. None of the other ingredients to establish the transactions as benami transactions, as held by this Court in the aforesaid decisions, are satisfied, except that some financial assistance was provided by Late G. Venkata Rao. In the facts and circumstances of the case and considering the evidence on record, the purchase of the suit properties Item Nos. I(a) to I(c) in the names of defendant Nos. 1 to 3 cannot be said to be benami transactions and, therefore, as rightly observed and held by the learned trial Court and confirmed by the High Court, the plaintiff has no right to claim 1/4th share in the suit properties Item Nos. I(a) to I(c) which were purchased by the sons in their names by separate sale deeds. We are in complete agreement with the view taken by the High Court. 11. In view of the above and for the reasons stated above, the present appeal fails and dese ..... X X X X Extracts X X X X X X X X Extracts X X X X
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