* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Order : 03.11.2008
+ RFA 577/2007
ANIL KAUSHIK ..... Appellant
Through: Ms. Purnima Maheshwari, Advocate
versus
SWARAN KALA KAUSHIK & ANR. ..... Respondents
Through: Mr. Rupesh Sharma, Adv. for R- 1& 2
CORAM:
HON’BLE MR. JUSTICE PRADEEP NANDRAJOG
HON’BLE MR. JUSTICE J.R.MIDHA
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
: PRADEEP NANDRAJOG, J.(Oral)
1. Anil Kaushik son of Swaran Kala Kaushik is in dispute
with his mother with respect to property bearing No.A-300, Majlis
Park, Delhi. The same was purchased by Swaran Kala Kaushik vide
sale deed dated 23.2.1996 Ex.DW-1/A. It records that Swaran Kala
Kaushik has paid a total sale consideration of Rs.1,60,000/-
(Rupees One Lac Sixty Thousand) to the seller, being Rs.16,000/-
(Rupees Sixteen Thousand) paid in cash as advance and the
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balance sum paid by 3 cheques in sum of Rs.48,000/- each, dated
5.2.1996, drawn on her account maintained with Punjab National
Bank, Azadpur, Delhi.
2. Case of Anil Kaushik is that property No.A-300, Majlis
Park, Delhi was purchased by his mother from out of the sale
proceeds received by her when she sold property No.A-254, Majlis
Park, Delhi belonging to his father. So stating, Anil Kaushik claims
1/3rd share in the house for the reason he alleges that the
remaining 2/3rd share belongs 1/3rd each to his mother and his
brother Sunil Kaushik.
3. The defence of Swaran Kala Kaushik is that property
No.A-254, Majlis Park, Delhi was sold on 22.11.1995 for a sale
consideration of Rs.3,60,000/- (Rupees Three Lac Sixty Thousand).
Rs.2,10,000/- (Rupees Two Lac Ten Thousand) from out of the sale
proceeds was utilized in the marriage of her daughter and balance
sum of Rs.1,50,000/- (Rupees One Lac Fifty Thousand) was
distributed by her amongst her two sons, three daughters and self
i.e. each family member getting Rs.25,000/- (Rupees Twenty Five
Thousand).
4. At the trial Anil Kaushik examined himself as his sole
witness and deposed on the lines pleaded in the plaint. Suffice
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would it be to note at this stage that Anil Kaushik led no evidence
to prove that the deposits made in the Punjab National Bank,
Azadpur, Delhi wherefrom cheques were issued by his mother
when the subject property was purchased were augmented when
property No.A-254, Majlis Park, Delhi was sold.
5. Swaran Kala Kaushik examined herself as DW-1. She
examined the clerk from the Sub-Registrar’s office as DW-2 to
prove the sale deed in her name. She examined her son Sunil
Kumar as DW-3. She examined her daughter Rita as DW-4.
6. Swaran Kala Kaushik, her son Sunil Kumar and her
daughter Rita, deposed in harmony with the defence taken by
Swaran Kala Kaushik. They stated that when House No.A-254,
Majlis Park was sold for Rs.3,60,000/- (Rupees Three Lac Sixty
Thousand), Rs.2,10,000/- (Rupees Two Lac Ten Thousand) was
spent on the marriage of the daughter of Swaran Kala Kaushik and
that balance sum of Rs.1,50,000/- (Rupees One Lac Fifty Thousand)
was divided as stated by Swaran Kala Kaushik.
7. Noting that the onus lies on the person, who urges
atransaction to be benami, to prove the source of funds for
acquisition of the property; holding that Anil Kaushik failed to
establish that the funds to acquire the subject property were the
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ones which were realized when property No.A-254, Majlis Park,
Delhi was sold and noting that Swaran Kala Kaushik was the
registered owner of the property and had paid the sale
consideration from out of a bank account maintained by her;
further noting her testimony that she used to earn money by doing
tailoring work, learned Trial Judge has dismissed the suit filed by
Anil Kaushik.
8. At the hearing held today, learned counsel for the
appellant has urged that the evidence of Swaran Kala Kaushik that
she was having independent income by doing tailoring work is
unsubstantiated by any evidence save and except her self-serving
statement and therefore a presumption arises in favour of Anil
Kaushik that the suit property was purchased by utilizing the funds
which were acquired when property No.A-254, Majlis Park, Delhi
was sold.
9. In our decision pronounced on 20.10.2008 in RFA
No.784/2003 SATISH KUMAR Vs. PREM KUMAR & ORS. we had
noted the law relating to benami transactions; the onus of proof
and discharge thereof. In paras 14 to 19 of the said decision we
had observed as under:-
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“14. The law relating to onus of proof of a property
being benami and discharge of said onus was first
expounded by the Federal Court in the decision reported
as Gangadara Ayyar & Ors v Subramania Ayyar &
Ors AIR 1949 FC 88 in following terms:-
“It was contended by the learned Counsel for the
appellants that the decision of the Court below against
the appellants regarding these properties had been
reached because of a wrong approach to this matter in
law and that the rule of onus of proof as regards benami
transactions had not been fully appreciated. It is settled
law that the onus of establishing that a transaction is
benami is on the plaintiff and it must be strictly made
out. The decision of the Court cannot rest on mere
suspicion, but must rest on legal grounds and legal
testimony. In the absence of evidence, the apparent title
must prevail. It is also well established that in a case
where it is asserted that an assignment in the name of
one person is in reality for the benefit of another, the
real test is the source whence the consideration came
and that when it is not possible to obtain evidence which
conclusively establishes or rebuts the allegation, the
case must be dealt with on reasonable probabilities and
legal inferences arising from proved or admitted facts.
The Courts below proceeded to decide the case after
fully appreciating the above rule and in our judgment
their decision does not suffer from the defect pointed
out by the learned Counsel for the appellants.”
(Emphasis Supplied)
15. In the decision reported as M.Nagendriah v M.
Ramachandraih & Anr 1969 (1) UJ 697 (SC) the
Hon’ble Supreme Court explained the law relating to
proof of benami transactions in following terms:-
“……………Now if that is so, then the onus of proving that
these purchase were benami was on the appellant and it
was for him to show by convincing evidence that the
source of money for these acquisitions was traceable to
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the joint funds from this business. Admittedly this has
not been shown by any affirmative evidence, Shri Gupta,
however, laid stress on the contention that the
respondent had also not been shown to possess
sufficient funds with which properties in question could
be acquired. On this reasoning the counsel tried to
induce us to infer that the properties must be held to be
joint of the appellant and Ramachandraiah. This, in our
opinion, is not a correct approach. Ostensible owner
must be held to be a true owner in the absence of
cogent evidence establishing that he is a mere
benamidar, or is holding property for another person
who claims to be the beneficial or real owner. The onus
also does not change merely because the beneficial
owner and the ostensible owner are brothers or they
may be owning some other property jointly. The mere
circumstance that the ostensible owner has not proved
that he had himself paid the price or that he had
sufficient funds to be able to do so, would also net be
enough by itself to sustain the claim of the alleged
beneficial owner. The initial onus is always on the party
seeking to dislodge the ostensible title. We are not
unmindful of the fact that in this country benami
transactions are not uncommon and they are certainly
not forwarded upon. We are equally conscious of the fact
that the appellant and respondent Ramachandraiah are
real brothers and not utter strangers. But at the same
time it cannot be ignored, as just observed, that the
initial onus must as a matter of law be on the party
asserting benami nature of title………..” (Emphasis
Supplied)
16. The observations of the Hon’ble Supreme Court in
M.Nagendriah’s case (supra) to the effect that the onus
of proof of benami transactions cannot be discharged
merely on account of some deficiency in the evidence
led by the alleged benami owner leads to an irresistible
conclusion that the onus of proof of benami transaction
is very heavy on the person alleging the same and can
be discharged only by leading positive evidence.
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17. In the decision reported as Jaydayal Poddar & Anr
v Mst. Bibi Hazra & Ors AIR 1974 SC 171 the Hon’ble
Supreme Court enumerated six circumstances which
must be looked into by the courts in determining
whether a particular transaction is benami or not. At this
juncture, it would be apposite to refer to following
observations made by the Hon’ble Court in the said
decision:-
“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 of Benami or
establish circumstances unerringly and reasonably
raising an inference of that fact. The essence of a
benami is the intention of the party or parties
concerned; and not unoften such intention is shrouded in
a thick veil which cannot be easily pierced through. But
such difficulties do not relieve the person asserting the
transaction to be benami of any part of the serious onus
that rests on him; nor justify the acceptance of mere
conjectures or surmises, as a substitute for proof. The
reason is that a deed is a solemn document prepared
and executed after considerable deliberation and the
person expressly shown as the purchaser or transferee
in the deed, starts with the initial presumption in his
favour that the apparent state of affairs is the real state
of affairs. Though the question, whether a particular sale
is Benami or not, is largely one of fact, and for
determining this question, no absolute formulae or acid
tests, uniformally applicable in all situations, can be laid
down; yet in weighing the probabilities and for gathering
the relevant indicia, the courts are usually guided by
these circumstances : (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
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the title-deeds after the sale and (6) the conduct of the
parties concerned in dealing with the property after the
sale.
The above indicia are not exhaustive and their efficacy
varies according to the facts of each case. Nevertheless
No. I, viz. the source whence the purchase money came,
is by far the most important test for determining
whether the sale standing in the name of one person, is
in reality for the benefit of another.” (Emphasis
Supplied)
18. After noting leading judicial authorities on the point,
the Hon’ble Supreme Court in the decision reported as
Valliammal (D) by Lrs. v Subramaniam & Ors AIR
2004 SC 4187 summarized the law relating to proof of
benami transactions as under:-
“There is a presumption in law that the person who
purchases the property is the owner of the same. This
presumption can be displaced by successfully pleading
and proving that the document was taken benami in
name of another person for some reason, and the person
whose name appears in the document is not the real
owner, but only a benami. Heavy burden lies on the
person who pleads that recorded owner is a benami-
holder.” (Emphasis Supplied)
19. Having laid down the afore-noted legal position in
respect of proof of benami transactions, the Hon’ble
Supreme Court proceeded to note the six circumstances
enumerated in Jaydayal Poddar’ s case (supra) and
concluded that the source from where the purchase
money came and the motive as to why the property was
purchased benami are the most important tests for
determining whether the sale standing in the name of
one person, is in reality for the benefit of another
person. The Hon’ble Court emphasized that a party
invoking the plea of benami in order to prove the real
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ownership of the property which is the subject-matter of
lis is required to show that there were valid reasons for
purchase of the property in name of the benamidar and
that the purported real owner had paid the sale
consideration for the purchase of the property.”
10. In the backdrop of aforenoted legal position the facts of
this case lead to the irresistible conclusion that the decision of the
learned Trial Judge is correct.
11. It has to be noted that property No.A-254, Majlis Park
was sold on 22.11.1995 and the subject property was purchased
on 23.2.1996. Anil Kaushik has led no evidence to establish that
sale proceeds realized when property No.A-254, Majlis Park was
sold was credited into the account of Swaran Kala Kaushik
maintained by her with the Punjab National Bank, Azadpur Branch.
It has been noted by us that the sale deed Ex.DW-1/A records that
three cheques each in sum of Rs.48,000/- (Rupees Forty Eight
Thousand) have been tendered by Swaran Kala Kaushik to the
seller while purchasing the property in question. Further, the
testimony of Swaran Kala Kaushik, her son and her daughter that
Rs.2,10,000/- (Rupees Two Lac Ten Thousand) was spent on the
marriage of her daughter and this money was from out of the sale
proceeds of property No.A-254, Majlis Park has remained unshaken
in spite of the three being cross examined. Further, the statement
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by the three that balance sale consideration of Rs.1,50,000/-
(Rupees One Lac Fifty Thousand) was distributed amongst the
family members has gone unchallenged.
12. We find no merit in the appeal.
13. The appeal is dismissed with costs.
PRADEEP NANDRAJOG, J.
J.R.MIDHA, J.
November 03, 2008
MM
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