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TMI Blog2022 (3) TMI 1612X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Court cannot assume a benami transaction through mere conjectures or surmises and it can never be a substitute for the proof which rests on the shoulder of the person who asserts that the transaction is a benami transaction. The essence of a benami transaction is the intention of the parties concerned at the time of entering into the transaction. Such an intention cannot be spoken to by any other person who is not a party to the transaction. In the present case, the sale had taken place on 26.6.1930. The so called ostensible owner viz. Jayarama Reddy during his lifetime never claimed or asserted that the sale was a benami transaction and that Chinnamma Reddy was only a benami holder, in any proceedings before any authority or Court. He died in the year 1964. For the first time, the plaintiff who is the son of Jayarama Reddy asserted that Chinnamma Reddy was a benami holder when the suit was filed in the year 1982. At the time when the plaintiff deposed as a witness in the year 2002, his age is recorded as 70 years. If this age is taken into consideration, the plaintiff would not even have born at the time when the transaction took place. This plea was taken in the suit for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MR.N. ANAND VENKATESH For the Appellant : Mr. Tranquebar Dorai Vasu For the Respondents : Mr. T.R. Rajagopalan Senior Counsel for M/s. P. Veena Suresh for RR2 to 11 R 1- No appearance JUDGMENT The unsuccessful plaintiff is the appellant in this Second Appeal. The case of the plaintiff is that the suit property measuring an extent of 1.32 acres originally belonged to one Sriramalu Reddy. He owed a sum of Rs. 750/- to the father of the 1st plaintiff under a promissory note dated 27.5.1927. In discharge of the said debt, the said Sriramulu Reddy offered to sell the suit property in favour of the father of the 1st plaintiff for a total sale consideration of Rs. 1000/-. Out of the total sale consideration, the debt amount was agreed to be adjusted and the balance sum of Rs. 250/- was agreed to be paid by way of cash. Accordingly, a registered sale deed dated 26.6.1930 (Ex.A1)came to be executed by the said Sriramulu Reddy and the name of the purchaser was shown as P. Chinnamma Reddy, who is none other than the brother in law of the father of the 1st plaintiff. The name of the father of the 1st plaintiff is Jayarama Reddy. According to the plaintiff, there was a dispute between Jayarama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... They further stated that Jayarama Reddy who is the father of the 1st plaintiff, was never in possession and enjoyment of the suit property. They denied the fact that Chinnamma Reddy was a Benamidar. It was further stated that the 1st defendant is the close relative of the 1st plaintiff and the 1st plaintiff who is an advocate by profession was conducting cases and hence the 1st defendant had handed over the original documents to the 1st plaintiff. The 1st plaintiff in turn is attempting to misuse the said documents and has come up with a false case. 7. They took a further stand that the properties were sold by defendants 1, 2, 7 and 8 who had the right and title over the property. Similarly the gift deed was also executed by the defendants who had the right and title over the suit property. Accordingly, the defendants sought for the dismissal of the suit. 8. It can be safely concluded that only defendants 4 to 6 contested the case effectively and none of the other defendants filed any written statement. Respondents 7 to 11 are the legal representatives of the 4th defendant. Respondents 2 to 6 are the legal representatives of the 6th defendant and the 1st respondent in this Second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocumentary, if any. The defendants also shall be given opportunity to adduce oral and documentary evidence. Endeavour shall be taken by the appellate Court to see that the entire process is completed on day to day basis and judgment delivered on merits within a period of two months from the date of receipt of the records. 21. Both parties shall appear before the first appellate Court on 27.06.2011. 22. Wherefore, the substantial question of law is answered to the effect that both the Courts below were not justified in preventing the appellants/defendants from participating in the proceedings and contesting the matter on merits and accordingly the Second Appeal is allowed setting aside the judgments and decrees of both the Courts below and the matter is remitted back to the first appellate Court as set out supra. No costs. Consequently, connected miscellaneous petition is closed . 11. On remand, the Appellate Court allowed the parties to let in additional evidence and thereby the plaintiff examined three additional witnesses viz., PW2 to PW4 and marked additional documents, Exhibits A-59 to A-67. PW1 was also recalled for further cross examination. Similarly, on the side of the defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... money from the father of the Appellant through a pro-note and he offered to sell the suit property for a total sale consideration of Rs. 1000/-. The debt of Rs. 750/- was adjusted and the balance of Rs. 250/- was paid by the father of the Appellant by way of cash and Ex.A1 was executed in the name of the brother in law Chinnamma Reddy who was the Benamidar. Insofar as possession is concerned, Exhibits A16 to A21 are the kist receipts in the name of Jayarama Reddy and Ex. A22 to A32 are the receipts in the name of the appellant. Similarly the letters issued by the Municipal commissioner to Jayarama Reddy requesting to sell a portion of the property were marked as Exhibits A34 and A35. That apart, Exhibits A36 to A41 were marked to show that the neighbours around the suit property always showed one of the boundary as the suit land belonging to Jayarama Reddy. The 6th defendant who claimed to be a cultivating tenant was also disproved through Ex.X1. Insofar as the relationship of the parties is concerned, Chinnamma Reddy is the brother in law of Jayarama Reddy and he is the maternal uncle of the Appellant and the brother of the 2nd plaintiff. Considering the close relationship, Chinn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consider the appeal based on the oral and documentary evidence available on record. It was contended that the present suit was instituted in the year 1982 and the appellant has successfully dragged on the case for the last 40 years and the Appellate Court had no other option except to proceed further and decide the appeal since it is bound by the directions issued by this Court. The learned Senior Counsel further submitted that the Lower Appellate Court had considered each and every issue that was raised by the plaintiff and it had rendered the findings based on appreciation of evidence and there is no ground to interfere with those findings. The learned Senior Counsel concluded his arguments by submitting that the appellant misused his position as an advocate and the confidence that was reposed on him by the 1st and 2nd defendants and he took advantage of the original sale deed that was handed over to him while conducting the proceedings on behalf of the defendants and therefore this fact has to be taken into consideration by this Court and the appellant should not be permitted to grab the property which does not belong to him. Accordingly, the learned Senior Counsel sought for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. Refer to Jaydayal Poddar v. Bibi Hazra [(1974) 1 SCC 3] , Krishnanand Agnihotri v. State of M.P. [(1977) 1 SCC 816 : 1977 SCC (Cri) 190] , Thakur Bhim Singh v. Thakur Kan Singh [(1980) 3 SCC 72] , Pratap Singh v. Sarojini Devi [1994 Supp (1) SCC 734] and Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S. Shah [(1996) 4 SCC 490]. It has been held in the judgments referred to above that the question whether a particular sale is a benami or not, is largely one of fact, and for determining the question no absolute formulas or acid test, uniformly applicable in all situations can be laid. After saying so, this Court spelt out the following six circumstances which can be taken as a guide to determine the nature of the transaction: (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 aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name of Chinnamma Reddy who was only a benami holder and that the actual owner is his father Jayarama Reddy. 22. Initially, when the Trial Court took up the matter for final hearing, a summary judgment was passed without considering any of the issues on merit and the purchasers of the property were not allowed to defend the suit. The matter ultimately reached this Court by way of a Second Appeal and this Court found that the Trial Court went off on a tangent and decreed the suit without any discussion. Therefore, considering the fact that the matter was already pending for nearly 30 years even at the time when the Second Appeal was instituted, this Court thought it fit not to remand the case to the Trial Court and the case was only remanded to the First Appellate Court. The First Appellate Court being the last court of fact, was virtually made to decide the case like an original suit by recording further evidence and by letting in additional evidence from both sides. 23. The learned Counsel for the appellant was vehemently urging that the Lower Appellate Court did not even formulate the points for consideration. This issue raised by the appellant was also framed as an additional s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and every issue based on the oral and documentary evidence and considering the facts and circumstances of the case. The second additional substantial question of law is answered accordingly. 26. The two substantial questions of law that were initially framed by this Court, touches upon the merits of the case and the manner in which the Appellate Court has appreciated the evidence before rendering its finding. Therefore while considering these two substantial questions of law, this Court has to carefully look into the finding of the Lower Appellate Court on each issue. 27. For proper appreciation, the issues and the additional issues that were framed by the Trial Court and taken up for consideration by the Lower Appellate Court are extracted hereunder: 1. Whether the Sriramulu Reddy owned a sum under a promissory note on 27.05.1927 and for discharge of the said debt he sold the suit property through the sale deed dt:26.06.1930 and delivered the possession is true? 2. Whether the 1st plaintiff's father had executed a sale deed dt: 26.06.1930 in favour of the said Chinnamma Reddy as benamidar is true? 3. Whether the 1st plaintiff's father was paying kist to the suit property a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atarama Reddy, together have sold a property in favour of one Munuswamy Muthaliar and it was further found in this document that they were in joint possession of this property. That apart, the Lower Appellate Court also took into consideration two more documents dated 25.6.1935 and 14.11.1935 wherein the father of the plaintiff had purchased properties in his own name. That apart,on 16.11.1940, he had also sold in his own name, a property in favour of one Krishnamachari. These were all contemporaneous documents which was taken into consideration by the Lower Appellate Court and it was found that the so called misunderstanding between Jayarama Reddy and his brother Venkatarama Reddy has been belied. This finding of the Lower Appellate Court has a lot of significance, since the motive/intention behind the benami transaction forms the foundation and as this foundation itself becomes weak, the structure that is attempted to be constructed by the appellant by pointing out to the other circumstances, is bound to crumble down like a pack of cards. 29. The Lower Appellate Court also took into consideration the fact that the plaintiff was brought up and living with his in laws and he had co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the kist receipts by itself does not in any way improve the case of the plaintiff. 34. After considering all these facts and discussing the same in the light of the evidence available on record, the Lower Appellate Court found that there was no proof to come to a conclusion that the sale transaction that took place through Ex.A1 cannot be held to be a benami transaction. 35. The Lower Appellate Court thereafter independently considered issues 3 to 6. The plaintiff came forward with the suit initially seeking for the relief of permanent injunction. He was not granted the interim relief of injunction and it was confirmed upto this Court in the Civil Revision Petition. Thereafter the plaintiff amended his prayer and sought for possession. While considering this conduct of the plaintiff, the Lower Appellate Court also took up the additional issues and it was found that there was absolutely no pleading in the plaint as to when the possession was taken by the defendants. The Lower Appellate Court found that this pleading becomes very important since the issue of limitation had been raised by the defendants and unless the plaintiff comes up with a clear case as to when the possession w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Judge of the High Court had no jurisdiction to interfere in second appeal with the findings of fact given by the first appellate Court based upon an appreciation of the relevant evidence. In the result, the decree of the High Court is set aside and the appeal is allowed with costs throughout. 40. Despite the aforesaid admonition of the Supreme Court matters did not improve. The Law Commission, in its 54th Report, took note of the grim picture observing that the High Courts in some states were automatically entertaining second appeals where the judgment under appeal had reversed the judgment of the trial court. Pursuant to the aforesaid recommendations of the Law Commission of India, the the Code of Civil Procedure (Amendment) Act, 1976 amended Section 100 of the Code and circumscribed the power of the High Court to entertain a second appeal on the existence of a substantial question of law. Within the narrow jurisdictional parameters of Section 100, an interference on facts was permissible only in cases where it was shown that the appreciation of facts by the Courts suffered from perversity. 41. In S.R. Tewari v. Union of India, (2013) 6 SCC 602, the Supreme Court formulate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not involve any question of law much less substantial question of law within the meaning of Section 100 of the Code to enable the High Court to admit the appeal on any such question much less answer it in favour of the defendant. 44. Thus, an interference on facts is a forbidden zone in a second appeal unless the appellant is able to make out a case that the appreciation of evidence suffers from any form of perversity. As a natural corollary, sans any perversity, merely because an alternative view is possible on a reading of the evidence, that, by itself, would not constitute a legally valid ground for interference under Section 100 of the Code. 45. In Thiagarajan v. Venugopalaswamy B. Koil, (2004) 5 SCC 762, the Supreme Court sounded the following note of caution: In the present case, the lower appellate court fairly appreciated the evidence and arrived at a conclusion that the appellants' suit was to be decreed and that the appellants are entitled to the relief as prayed for. Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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