JUDGMENT
1. This is a plaintiff’s appeal, from the judgment and decree dated 5-1-1987 passed by the I Additional City Civil Judge, Bangalore in Original Suit No. 1501 of 1982, Mr. D. Victor v Mr. L. Sundaram, claiming for declaration of title and possession and mesne profits whereby the Trial Court has dismissed the plaintiff’s claim in toto.
2. The plaintiff’s case as per plaint allegations is that he is the absolute owner of house property No. 40 situated in Sy. No. 106 of Kodihalli, within the jurisdiction of H.A.L. Sanitary Board, Bangalore South
Taluk. The plaintiff claims that he purchased the site in dispute namely No. 40 in Sy. No. 106, Kodihalli, now bearing No. 57, Postal No. 57, Murugeshpalyam, Bangalore-70 by a registered sale deed dated 13-11-1972. The plaintiff’s case is that, plaintiff out of his self earned money constructed the house on the said site No. 40. After the construction of the house by the plaintiff, the plaintiff along with his father late. Sri David and Robinson his brother started residing in the house. The defendant, who was his uncle or to say younger brother of his father, had also been permitted to stay in the house along with them and this permission to reside was given to him to live in the house with the plaintiff and his father simply on account of the plaintiffs love and affection for the defendant who was none else than the plaintiff’s junior father/paternal uncle i.e., as the defendant was ‘chikkappa’ of the plaintiff. The plaintiffs case is that, he had left the original sale deed or the title deed relating to house with his father and his father died on 19-6-1977. That after his father’s death, in spite of best efforts, the appellant could not trace the original sale deed, thereafter he obtained certified copy of the sale deed. Plaintiffs case is that, notice of assessment was issued to the plaintiff with reference to his property. After the death of his father, defendant continued to be in permissive occupation of the premises along with the plaintiff’s brother, as the plaintiff was undergoing great hardship in the rented premises therefore, he demanded the defendant to vacate the premises so that he could make use of suit-house and thereafter, plaintiff revoked the permission which had been granted to the defendant to occupy the suit property, by notice dated 24-6-1981. Plaintiffs further case is that the defendant gave a reply to notice and raised untenable pleas and contended that the defendant-respondent was residing and occupying the premises in his own right. The plaintiff as such, alleged that the cause of action accrued on 24-5-1981 for filing the suit for possession and declaration of title. The plaintiff has filed the suit for.-
(a)the decree declaring the plaintiff to be the absolute owner of the property in dispute;
(b)decree for recovery of possession of the schedule property from the defendant;
(c)decree for past mesne profit together with interest thereon at the rate of 12% and for future mesne profits under Order 20, Rule 12.
In addition to the above, the plaintiff has sought decree for costs.
3. The property in dispute has been described in schedule by the plaintiff as under.-
“House property built on site No. 40 in Sy. No. 106 of Kodihalli, now bearing postal No. 57, Murugeshpalyam, in the jurisdiction of H.A.L. Sanitary Board, Bangalore South Taluk, Bangalore-560 017, bounded on the
East by : Site No. 49
West by : Road
North by : Road
South by: Site No. 41.
Measuring East to West 30 feet and North to South 40 feet”.
4. The defendant contested the plaintiff’s case and filed written statement. That the defendant denied the plaintiff’s case and stated that, it is false to allege that the suit schedule property has been the self-earned property of the plaintiff or that suit schedule site has been purchased by the plaintiff out of his self earned money. The defendant denied that the house situated at the said site was constructed out of the self earned property of the plaintiff. The defendant asserted that he purchased the suit site and constructed the house thereon out of his own earnings with the help of one Cheluvaraj. The defendant-respondent further alleged that the suit site was purchased in the name of the plaintiff, but as a benamidar due to the sentiment of love to the plaintiff. That the plaintiff xvas treated by the defendant as his own son. Defendant’s case is that the defendant’s elder brother was residing with the plaintiff in his rented house. The defendant used to look after plaintiff as the son. Defendant’s case is that, he after purchasing the site which is revenue site, had constructed the house in the year 1974-75 and thereafter, plaintiff’s father along with the members of the family came to the suit schedule property to live there. The plaintiffs father was not keeping well and died in the year 1977 under the care of the defendant. The defendant pleaded that he got married the plaintiff in the year 1975. Defendant’s case is that, the plaintiff has taken undue advantage of the benami sale deed in his name. He further alleged that, the sale deed had always been in possession of the defendant-respondent and the plaintiff knew it, but concocted the story of the documents having been misplaced. The defendant denied the plaintiffs case that, defendant was in occupation of the suit schedule property by virtue of permission from the plaintiff. The defendant further alleged that, it is false to state that the defendant’s possession was permissive. The defendant asserted himself as the owner of the suit property and asserted his possession to be that of the owner and not in the nature of permissive possession. The defendant further asserted that the plaintiff has no title, right or interest in the suit property. He asserted that, there was no question of revoking of the permission on 24-6-1981 and the said notice was baseless. The defendant asserted that the theory of the permission was concocted one. Defendant asserted that the plaintiff has no right, title and interest over the suit property and his claim is to be nullified. He asserted that the plaintiff has nothing to do with the property and had no cause of action to file the suit. The defendant further asserted that the suit is barred by limitation.
5. On the basis of the pleadings of the parties, the Trial Court framed the issues which read as under.-
1.Whether the plaintiff proves his title to the suit property?
2.Whether the plaintiff proves, that the defendant is in permissive possession of the suit property with the permission of the plaintiff?
3.Whether the defendant proves that the suit property belongs to him and the suit site was purchased under the registered sale deed dated 13-11-1972 by him out of his own funds, benami in the name of the plaintiff as contended in para 4 of the Written Statement?
4.Whether the suit is barred by limitation?
5.Whether the plaintiff is entitled to recover a sum of Rs. 10,080/- by way of past mesne profits from the defendant?.
6.Whether the plaintiff is entitled to the relief of declaration of title and recovery of possession of the suit property from the defendant?
7.Whether the plaintiff is entitled to future mesne profits?
8.Whether the valuation of the suit and the Court fee paid thereon is not proper?
9.Whether the defendant is entitled to exemplary costs under Section 35A of the Civil Procedure Code?
10.What order?
6. On the basis of the evidence led by the parties and after having appreciated the evidence led by the parties, the Trial Court held.-
(1)That the plaintiff has failed to prove his title to suit property.
(2)The plaintiff has failed to prove that the defendant has been in permissive possession of the property in suit with the permission of the plaintiff.
(3)That the defendant has established that the property in dispute belonged to the defendant and the suit property was purchased under the registered sale deed dated 13-11-1972 by the defendant out of his own funds, but a benami in the name of the plaintiff as alleged in para 4 of the written statement.
(4)That the suit is not barred by limitation.
(5)That the plaintiff is not entitled to recover any sum or the sum of Rs. 10,080/- by way of past mesne profits.
(6)That the plaintiff is not entitled to relief of declaration of title and recovery of possession from the defendant nor he is entitled to future mesne profits.
(7)That the suit has been properly valued and Court fee paid is sufficient.
(8) That the defendant is not entitled to any exemplary costs.
(9)As the plaintiffs suit cannot be stated to be false suit, the parties should be ordered to bear their own costs.
7. After having recorded these findings, the Trial Court has dismissed the plaintiff’s suit. Feeling aggrieved from the judgment and decree of the Trial Court dismissing the plaintiffs suit, the plaintiff has come up in this first appeal under Section 96 of the Code of Civil Procedure. I have heard the learned Counsel for the plaintiff-appellant Sri A. Ram Mohan and Sri K.I. Bhatta, learned Counsel for the respondent, assisted by Sri P.G.C. Chengappa on behalf of the respondent.
8. Learned Counsel for the appellant contended that the learned Trial Court erred in dismissing the plaintiffs suit for declaration and possession inspite of the fact that the title deed relating to suit property has been in favour of the plaintiff-appellant. It shows that the said site in dispute has been purchased by the plaintiff-appellant and deed shows that the consideration was paid by the plaintiff. Learned Counsel contended in view of the title deed being in favour of the appellant, the Court should have presumed the plaintiff to be the owner of the site in question over which the house exists. Learned Counsel for the plaintiff contended that the plaintiff has constructed the house and there are entries of the tax paid by the plaintiff. Learned Counsel contended that the material on the record establishes the appellant to be owner of the property in dispute. The defendant has failed to establish that plaintiff was benamidar. Learned Counsel for the appellant contended that findings of the Trial Court that the defendant has established that deed was benami in name of the plaintiff but the real owner thereof was the defendant-respondent is wrong. It did not apply correct and proper tests to determine the question of benami nature of deed, and as such, the findings of the Court below that defendant is and has been the real owner of the property in possession and the plaintiff is benamidar are erroneous on facts and in law. The learned Counsel made reference to the law laid down by Hon’ble Supreme Court in the case of Smt. Surasaibalini Debi v Phanindra Mohan Majumdar and Others.
9. Sri Mohan on behalf of the appellant contended that the possession of the defendant had been permissive and the defendant-respondent has not been able to establish that he had purchased the property for his own benefit and as such, the finding of the Court below to the effect that plaintiff was only benamidar and not the real owner and that defendant-respondent was the real owner is erroneous in law and liable to be set aside. Learned Counsel for the appellant placed reliance on the case namely, Jayadayal Poddar (deceased) by L.Rs and Another v Mst. Bibi Hazra and Others . Learned Counsel for the appellant also made reference to the decision of the Supreme Court in Nand Kishore Mehra v Sushila Mehra .
10. These contentions of the learned Counsel for the appellant have been hotly contested by the learned Counsel for the defendant-respondent. Learned Counsel for the respondent contended that there is no doubt that initial burden is on the person who claims the transaction to be benami to prove it and the defendant has discharged that burden by placing the material evidence. Learned Counsel for the respondent contended that there are yardsticks to determine the nature of transaction whether it is benami in the name of the person in whose name it stands which have been well set out by their Lordships of the Supreme Court in many cases and including the decision in Jayadayal Poddar’s case, supra. Learned Counsel contended that the evidence of the defendant is coupled with that of the seller D.W. 5 which clearly establishes that the sale consideration was paid by the defendant-respondent and not by the plaintiff. The evidence of the seller coupled with the evidence of the other defendants, the learned Counsel contended, clearly establishes that the sale consideration had been paid by the defendant. Learned Counsel contended that, it is not the plaintiff’s case that plaintiff had given money to defendant to pay the sale consideration nor is it the plaintiff’s case that defendant was acting on behalf of the plaintiff. As such, learned Counsel contended that, sale consideration has been paid by the defendant, as admitted by the seller and defendant paid it in his own right and for his own behalf. He paid it for the purpose of an object which was in his view to serve and not for any other purpose. He paid it with the object that he may succeed in his effort to discharge his duty to get married his nephew, the plaintiff and may get a suitable match, but not with an object to hand over the title and possession of the property to the plaintiff. Learned Counsel further submitted that evidence on record including the documentary evidence produced by the defendant coupled with oral evidence, as found by the Trial Court clearly establishes that, the constructions were got made by the defendant-respondent and not by the plaintiff. Learned Counsel submitted that the findings of Court below are well supported by any documents relating to construction. No person has been produced who could say that the materials have been purchased by plaintiff. Learned Counsel for the respondent further submitted that evidence on record has been sufficient to prove that the building on site in dispute has been constructed by the defendant-respendent having spent huge amount to the tune of Rs. 25,000/-. Learned Counsel contended that the deed of sale relating to the land in dispute has always been in possession of the defendant-respondent. The defendant-respondent had been in use and occupation of the house, in his own right. Learned Counsel for respondent contended that the evidence furnished really proves all the necessary ingredients and passes necessary tests to establish that, the property in dispute had belonged to the respondent as real owner and plaintiff’s name in the transfer deed in question was merely as a benamidar and not as a real owner. Learned Counsel contended that the findings of the Court below is correct and does not call for any interference, as defendant has been the owner of the property. Learned Counsel for the respondent con-
tended that the decree of the Court below does not suffer from any error of fact or law and the appeal deserves to be dismissed.
11. I have applied my mind to the contentions made by the learned Counsels. It may be mentioned at the initial stage that an objection was raised on the basis of Benami Transactions (Prohibition) Act. Learned Counsel for the appellant fairly submitted that, he does not wish to press that submission, in view of the latest decision laid down by the Supreme Court in R. Rajagopal Reddy (dead) by L.Rs and Others v Smt. Padmini Chandrashekhar (dead) by L.Rs, as the said decision has already a settled issue. Laying down the law to the effect that Section 4 of the Act of 1988 cannot be applied to suit, claim or action to enforce the right in property held benami against person in whose name such property is held by any other person, if such proceedings have been initiated by or on behalf of a person claiming to be the real owner thereof, prior to coming into force of Section 4(1) of the Act. The Supreme Court further observed that disallowing of such a claim defence which earlier was available when the suit plaint or written statement was filed itself suggests that a new liability or restriction is imposed by Section 4(2) of Act on pre-existing right and such a provision cannot be said to be retrospective or retroactive by necessary implication. It is also pertinent to note that Section 4(2) does not expressly seek to apply retrospectively. In view of this, learned Counsel for the appellant fairly did not press this contention. As regards to the benami nature of transaction, law has been laid down by the Supreme Court. It will be appropriate at this juncture on my part to make reference to the decision of their Lordships of the Supreme Court in the case of Smt. Surasaibalini Debi, supra. Their Lordships in above case have observed as under.-
“We start with the position that the Court will presume an ostensible title to be the real title unless a plaintiff who seeks to assert the contrary pleads and proves that the ostensible owner is not the real owner. In other words, the onus is on the person who alleges a transaction to be benami to make it out. Of course, the source of the funds from which the purchase is made coupled with the manner of its enjoyment would be a very material factor for establishing the case of benami but the mere proof of the source of the purchase money would not finally establish the benami nature of the defendant’s title. Even where the plaintiff purchases property with his own funds in the name of ‘B’ the surrounding circumstances, the mode of enjoyment might still indicate that it was intended to be a case of benami notwithstanding that the purchase money did not proceed from the defendant”.
Their Lordships observed that in Mayne’s Hindu Law it is observed as under:–
“While the source from which the money came is undoubtedly a valuable test, it cannot be considered to be the sole or conclusive criterion. For, the question whether a particular transaction is
benami or not, is one of the intention, and there may be other circumstances to negative prima facie inference from the fact that the purchase money was supplied by or belonged to another. The position of the parties, their relation to one another, the motives which could govern their actions and their subsequent conduct may well rebut the presumption”.
In the case of Jayadayal Poddar, supra, their Lordships in para 6 of the judgment have clearly laid down as under:–
“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 the 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 the particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformly 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 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. 1, 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”.
12. From the reading of the above decisions, it follows that a person expressly shown as the purchaser or transferee in the deed is a document prepared after considerable deliberations, starts with initial presumption in his favour that the apparent state of affairs is real state of affairs. The burden of proving that the sale is a benami transaction and apparent purchaser is not the real owner, always rests on the person
who asserts it to be a benami transaction and thus, burden has to be discharged strictly by adducing legal evidence of definite character. For determining whether a particular sale is a benami transaction or not, there is no absolute formula or a test to be uniformly laid for all situations, but there are certain guiding factors as mentioned below which may help the Court to arrive at the decision on this part and decide further the real intention and to determine the nature of transaction.-
(a)The source from which the purchase money came;
(b)The nature and possession of the property, after its purchase namely in whose possession the property purchased has been and in what capacity;
(c)The intention of the motive behind the transaction being given the benami character;
(d)The position and relationship of the parties and in particular between the claimant and the benamidar;
(e)The custody of the title deeds after the sale and the conduct of the parties, even subsequent to the transaction, in dealing with the property.
13. The source from where the money came is one of the important factors. Keeping these principles in view, I proceed to examine the respective contentions. No doubt, the person, in whose name the transfer deed is, prima facie starts with initial presumption that in his favour i.e. the state of affairs as is presented by the sale deed is the real state of affairs, but it is open to the claimant to prove that, it is not the real state of affairs and it is open to a person as the defendant-respondent to prove the state of affairs as represented by the deed is not the real state of affairs and the real owner of the property is not the one whose name is shown in the deed, but the claimant himself. The sale deed Ex. B-1 in the present case no doubt reveals that the vendor has received the consideration from the vendee mentioned in the sale deed i.e., from the plaintiff. A statement of fact made in a document may be shown to be incorrect and it is open to the claimant that, really consideration has not passed on from the person named as vendee named in the deed is plaintiff but it passed from the defendant-appellant. On behalf of the defendant to prove the passing of the consideration, the defendant himself has examined as D.W. 1 and also examined D.W. 2 and the vendor as D.W. 5. D.W. 1 as per examination-in-chief deposed as under.-
“On 13-11-1972 I purchased the said site from one Krishnappa. I
got the site in the name of the plaintiff. Ex. D-1 is the sale deed. I
had brought him as my own son and secondly he was of the mar
riageable age then and thinking that if there is some property, it
will be better, I got the site in his name”.
“I constructed a building therein, I purchased the site with a view that I should construct a house and live therein”.
In para 6 of the deposition he states that “my friend Cheluvaraj told me that Krishnappa was selling the site and I should purchase. Cheluvaraj had paid an advance of Rs. 700/- before the sale deed and thereafter he had come to me. Cheluvaraj had given the advance of Rs. 700/- for my site and also for his site”. He also states that Cheluvaraj and himself had joint a/c relation to the purchase of the construction of the building.
14. D.W. 2 Cheluvaraju states that “both of us purchased the site from Krishnappa. I had come to know that Krishnappa’s sites are for sale. Before asking the defendant I had paid advance amount of Rs. 700/- for Site Nos. 40 and 41. Ex. D-2 is the said receipt”. He further states that “then I proposed to the defendant, since he is my friend, whether he intended to purchase one of the sites. I offered him Site No. 40. Myself and the defendant purchased the site for Rs. 1,500/- each”. The defendant purchased the site in the name of the plaintiff. He also stated that “myself and Sundaram had given instructions to Krishnappa to purchase stamps in the name of particular persons. The defendant paid the consideration for the said site. On the date of the execution of the document, it was registered. After the document was written, the defendant went and got the plaintiff for signing the document”. D.W. 2 further states that, “it is not correct to say that in order to help the defendant I am deposing in the manner told by the defendant”. D.W. 5 is the vendor. In para 5 he states that “he had formed about 60 to 70 sites of 40′ x 30′ and had given Sundaram one of them and Cheluvaraju gave the advance for Site Nos. 40 and 45 and admits that he has received Rs. 700/- as per Ex. D-2(a)”. He states in para 3 that “though advance has been paid by Cheluvaraju, at the time of sale he purchased only one site from me and another site was purchased by his friend, Sundaram. I sold each site for Rs. 1,500/- “. In para 6 of the deposition D. W. 5 states that “no person by name Victor had come to me for taking the sale deed. No person by name victor came to me to negotiate for the purchase of the site. No person by name victor ever came to me to purchase the site or to flay the consideration or to purchase the stamp paper”. In the cross- examination D.W. 5 states that “it is not correct to say that D. Victor paid me Rs. 1,500/- at the time registration. Sundaram was present at the time of registration”. It may be mentioned that D.W. 5 vendor has very clearly stated in para 5 that “the rest of the consideration was paid to me by Sundaram”. His evidence clearly reveals that the advance money was paid by Cheluvaraju for both the plots. Cheluvaraju has stated that, he has purchased one plot and one was purchased by Sundaram. The balance of sale consideration with regard to Plot No. 40 was paid by Sundaram. This witness has denied the suggestion made from the plaintiff that Victor had paid Rs. 1,500/- at the time of registration and has stated that, it is not correct to say that Victor paid Rs. 1,500/- at the time of registration. No reason has been assigned on behalf of the plaintiff nor it has been shown why the vendor should be telling lies as suggested by the learned Counsel for the appellant. The evidence of vendor D.W. 5 clearly reveals that really the sale consideration had passed on or was paid by the defendant-respondent Sundaram to the vendor i.e., Krishnappa. There appears no reason to discard this evidence. Whoever had purchased the site from him, the vendor naturally would have so stated and as he stated that sale consideration did pass
on from Sundaram to the vendor and he has stated that, instruction was given by the defendant that the deed may be made in the name of the plaintiff. It is not the case of the plaintiff that he passed on the money to the defendant and instructed him to pay the same to the vendor on behalf of the plaintiff. No such case has been taken over nor any such suggestion has been made to any of the witnesses on behalf of the plaintiff in course of cross-examination. The plaintiff’s case has been that, he himself had paid the sale consideration while the case of the defendant has been that, he the defendant himself had paid the sale consideration and including the advance money to the defendant. The vendor has stated that sale consideration was paid by the defendant and I think his evidence is reliable and more reliable than that of the parties. The parties may be making conflicting statements in case and telling lies. There is no reason to disbelieve vendor when he stated as to who paid the sale consideration. No doubt, the plaintiff has stated that he has purchased the property in dispute from his own funds. But, in view of the above circumstance, the plaintiff’s evidence does not appear to be of much credence and does not appear to be reliable. I have to hold that the money or the sale consideration which had been paid, had been paid by the defendant-respondent from his own funds. This having been found that the money was paid by the defendant-respondent and not by the plaintiff, it as one of the essential element has been established against plaintiff-appellant and in favour of the defendant-respondent. The other aspect is the conduct of the parties. The evidence on record reveals that, on behalf of the defendant first Cheluvaraju has negotiated and then the deed was got prepared by the defendant which may have been got to be executed in the name of the plaintiff. The question is, why the defendant got it executed in the name of the plaintiff and what was the defendant’s intention in purchasing the property, was it to hand over the property to make the plaintiff owner of the property or was this got done for the benefit to the plaintiff-appellant and to confer the title to property to plaintiff or there was some other motivation? The relationship between the parties no doubt is very near one namely uncle and nephew. The plaintiff-appellant had been the son of the own brother of defendant-respondent. It is undisputed by the parties that the mother of the boy had died. The 2 brothers were living together. The defendant’s case is that, he purchased the site for constructing his own house as well as it was purchased by the defendant in plaintiffs name due to the affection and moral obligation which he felt he had towards the plaintiff, as the defendant was liking him as his own son as per para 4 of the written statement. In the course of evidence led by the defendant, in para 2 he has stated that, he purchased the site in 1972 from Krishnappa and further states that, he got the site in the name of plaintiff. Ex. D-1 is the sale deed. The defendant had brought the plaintiff since he treated him as his own son. Secondly, he was of marriageable age and thinking that, if there is some property it will be better to have suitable match. In para 54 in cross-examination D.W. 1 states that “because I treated him as if my son I got the sale deed in his name, though I had my own 2 children by then”. Reading of this statement of D.W. 1 in the
circumstance reveals that, really the defendant had no intention that the property purchased under sale deed Ex. D-1 should go to or deemed to belong to the plaintiff. It would he unnatural that a person having his own children would so intend that his children may not get the property, but it would go to the nephew. But the fact is that the sale deed stands in the name of the plaintiff. The question is why it was so purchased. Two brothers were living together and the defendant intended that, there must be some own property in the family. He was earning and he wanted to purchase it. That, to get the better matrimonial offer for the nephew, he has stated that, he thought it would be better if the property is purchased in the name of the plaintiff. So, the intention only appears to be to get better offer for the marriage of the plaintiff and so the deed was got executed in the name of the plaintiff and the defendant neither got it executed in his own name nor in the name of his children. This really indicates that, what benefit the defendant had intended was, to get better offer for the nephew and not to pass on the title of the property to the plaintiff or to make him owner of the property. So, the motive appears to be, to pretend before others in the society that the family has possessed some property and there is some property in the name of the boy. But the real intention was not that the plaintiff should be its owner. In view of the near relationship and the intention of the defendant to fetch a good match for the plaintiff only the deed appears to have been got in the name of the plaintiff. When I look and consider the subsequent conduct as dealing with possession and control of parties over property this intention appears to be very much effective. The deed of transfer or the sale deed in question had not been in possession of the plaintiff or his father. No doubt the plaintiff has stated that, he had handed over this deed to his father and it was with his father and his father died, thereafter deed was lost. He also applied for certified copy. Except the statement of the plaintiff there is no evidence on record on behalf of the plaintiff. Once the defendant’s evidence is that the deed was from the beginning in his possession and it was within the knowledge of the plaintiff. If the deed of transfer has been stolen, it does not appear that the plaintiff had made any report. The question is which the evidence has to be relied with reference to the possession of the site. This Court has to dwell into conduct of the parties. It has to be seen that who purchased the site and who got the house constructed thereon. Plaintiff’s case is that, he got the house constructed. Plaintiff’s evidence in this regard is his statement that he got constructed by his own funds as well as taking loan from his father and maternal uncle. In para 21 he states that “I used to bring the construction materials and so also my father. I had given some amount to the defendant to make some purchases of such materials. The defendant has not contributed anything, either for purchase of the site or for the construction of the house. 1 have spent about Rs. 25,000/- for the construction”. “I had Rs. 15,000/- with me, and my father gave some amount. My maternal uncle Gyanasun-daram gave Rs. 5,000/-. I have returned his money”. In para 45 he states that “I had kept accounts of the construction. I had kept the accounts in
a book, I had myself written it. I have spent about Rs. 25,000/-“. In para 46 he states about his salary in 1974-75 was Rs. 800 to 900/- p.m. Thereafter, he states that “I have not produced any document to show that in 1974-75 I was getting a total salary of Rs. 800A or 900/- per month. I have no documents to show about the salary when I joined and as to how it went on increasing”. In para 61 of the deposition he has stated that “I had constructed the house myself and I had not given it on labour contract. One Krishnappa, mason, was engaged by me to construct the house. I had taken receipt for every thing. I cannot give the particulars as to who supplied the cement, wood and steel. My father got the electrical material for the house. My father has helped me in the construction of the house. The accounts were with my father. Myself and my father had both written those accounts. In all Rs. 25,000/- I spent. I have no document to show about the borrowings, I made, from my father and maternal uncle”. A reading of the statement deposed by the plaintiff shows that, according to him, he spent a sum of Rs. 25,000/- for the construction of the house. He had some money of his own and he had taken sum of Rs. 5,000/- as loan from his maternal uncle and some money from others. He has deposed that, he had maintained accounts of expenditure and purchase of the building materials, but is not in a position to show or tell from whom he has purchased. The accounts of expenditure incurred by him in the construction of the building and purchase of the materials plaintiff claims to have maintained but has failed to produce. He has not stated that the accounts are misplaced or the accounts prepared by him have been stolen. The question arises why he has not produced those accounts, if he had incurred expenditure and maintained the accounts. No explanation is forthcoming from the plaintiff. If he had maintained the account and spent money he ought to have produced those accounts. It is failure on the part of the plaintiff to place the accounts alleged to be maintained by him, for no rhyme and reason. This Court is of the view that theory put up by the plaintiff should be taken as false. The accounts alleged would have been some material importance to throw light on the question who has spent it ought have been produced but has not been produced without any rhyme or reason as such, adverse inference may be drawn that the plaintiff’s case is false. Apart from that, the plaintiff has produced P.W. 2 who is none-else than own brother-in-law of the plaintiff, who has deposed that plaintiff purchased the sites and constructed the house by his own funds. He has not disclosed the source of information as to how he had come to know that the house was constructed by the plaintiff from his own funds. Merely saying that plaintiff purchased the site from his own funds and constructed the building cannot be said to be reliable or admissible piece of evidence. He should have disclosed the source of knowledge of money or funds alleged to have been used in connection, with purchase of site and raising of construction thereon. The evidence of the P.W. 2 is not worthy of any consideration or reliance. In the cross-examination P.W. 2 says that “I have not taken part in the sale talks of the purchase of the site made by the plaintiff. I do not know when it was purchased from one Krishnappa. It was purchased in 1972. I have not gone through the sale
deed of the property because it was in Kannada. In 1975 the plaintiff had read over the contents. I do not remember the dimension and schedule mentioned in the sale deed. In para 17 he has stated that “the plaintiff had spent in all Rs. 25,000/- for construction. He borrowed Rs. 5,000/- from his maternal uncle and he had his own Rs. 20,000/-. I have no personal knowledge regarding the bank balance of the plaintiff. He has further stated that “I was not present when plaintiff borrowed Rs. 5,000/- from his maternal uncle. I had no occasion to verify his accounts regarding the construction of the building”. The above statement of the P.W. 2 clearly reveals that, his statement was merely made to support the plaintiffs case without any personal knowledge of the plaintiffs account or without verifying the account which plaintiff alleges to have maintained for construction of the building. The statement in para 37 by witness P.W. 2 is that he was not taking any interest in the family or his brother or sister and that he has not been much interested in the plaintiff. He has further stated that defendant was taking much interest in the family matters and in educating the children. He has stated that defendant had affection and love for the plaintiff and thinking that the plaintiff would look after his children he had purchased the site in the plaintiff’s name and the plaintiff had no interest in the site until the registered deed was executed. There is no document that the plaintiff paid the advance money and his evidence and that of B.W. 2 itself appears to be unreliable. Apart from the circumstance that the plaintiff had not produced any account of expenditure alleged to have been incurred during construction of the building and which account he says that he has maintained and no reason is assigned for not producing the same. The evidence oral and documentary produced by defendant- respondent including Ex. D-3, D-4, Ex. D-32 and D-33, including plan of the building D-36 are on record. The Trial Court itself has considered the evidence of the parties and of the defendant’s witness. The material observations in paras 21 to 25 of Trial Court judgment and discussion thereon where the Trial Court has discussed all evidence, oral, documentary and circumstantial and in my opinion the finding which has been arrived by the Trial Court on this aspect of the matter after considering all the material evidence, cannot be said to be suffering from any error nor can it be said to be erroneous.
15. For the reasons mentioned above, I agree that the finding of the Trial Court that construction on the site in dispute was made by the defendant-respondent after having incurred the expenditure to the tune of Rs. 25,000/- and plaintiff has failed to establish that he incurred expenditure to the construction of the site. So, this conduct of the defendant investing money on the property/site putting construction, the deed being in his possession and in particular when the plaintiff himself has stated in Ex. P-14 that “after the death of my father I could not get any document, regarding my house, since the defendant had taken them away. The documents were like sale deed, receipts and bills regarding construction of the house, After the death of my father, the defendant had taken away my documents”. The plaintiff ought to have given a
notice to that effect as well as to have lodged a complaint. But, he has not done so. This theory that defendant had taken away the documents, appears to be false as the plaintiff did not make any complaint to the police that defendant had taken away forcibly or stealthily the documents. Why the plaintiff has not done so, if the documents were forcibly taken away or stealthily taken or removed by the defendant from the plaintiffs possession. The natural conduct of the plaintiff would have been to have given a notice to defendant in that regard which the plaintiff has not done. These circumstances reveal that, theory of documents being in plaintiffs or plaintiffs father’s possession etc., and thereafter being taken away by the defendant is false. Really it appears that, the deed of transaction i.e., the sale deed Ex. D-1 and the accounts of money spent on the construction had been with the defendant as the defendant-respondent himself had purchased the site and had incurred the expenditure in construction of the house. So, the circumstances that defendant invested money for the purchase of the site; that defendant incurred expenditure in the construction of the building, and further the documents, title deed and accounts with reference to the construction being with the defendant, really lead one to think that state of affairs, as appears from the sale deed was not real state of affairs, instead real state of affairs was something different therefrom. Apart from that, it is admitted position that the defendant had been residing in that house. No doubt plaintiff might have also resided, but later plaintiff has shifted to some other house. He himself has put up a theory of permissive possession which does not appeal to this Court. The father of the plaintiff-appellant did not object to the defendant’s making use of the house. Really the money having been invested by the defendant in the purchase of the site and construction of the building, with a view that, for the plaintiff, the defendant-respondent may be able to get suitable match so he got the deed of the transaction in question made in the name of the plaintiff. The intention and motive appears only to procure good, suitable match for plaintiff-appellant and not to make the plaintiff owner of the house. The consideration had passed on to the seller as admitted by the seller from the defendant respondent. It had been contended before me by the learned Counsel for the appellant that there are tax receipts namely Ex. P-5 and P-6. These receipts reveal that they are of the period subsequent to the filing of the suit and not prior to the filing of the suit. They are not of much importance and do not help to arrive at a conclusion contrary to the case of a benami transaction being entered vide sale deed dated 13-11-1972. The Trial Court has taken into consideration of the circumstance in Ex. D-2 and thus, considering the entire set of circumstances in the light to guiding Test as set up by Their Lordships of the Supreme Court, it appears to me that the defendant succeeded in rebutting the preliminary presumption which was in favour of the plaintiff with regard to the real state of affairs. The defendant has rightly
been held to have established that the deed in question was benami in nature in the name of the plaintiff-appellant and plaintiff was only a benamidar and the real possessor and owner of the property has been none else than the defendant-respondent. That at the plaintiff had no title. That as real owner of the property had been the defendant-respondent, the plaintiff-appellant had no right to get the claim made in plaint decreed. The defendant-respondent being in possession of the property as well as being the real owner and title holder of suit property as per sale deed of 1972, and the plaintiff-appellant being only name lender benamidar the plaintiff had no right to seek decree for declaration sought for nor for possession against the real owner of the property nor has been entitled to seek injunction restraining him nor plaintiff could claim any mesne profits against the same. Thus considering in my view, the Trial Court’s decision does not suffer from any error of law or fact. The decisions referred by the learned Counsel for the appellant namely Nand Kishore, supra, with reference to the benami transaction referring the observations made in para 8 only indicated that “transfer to one for consideration paid by another — where property is transferred to one person for a consideration paid or provided by another person, and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee, the transferee must hold the property for the benefit of the person paying or providing the consideration”. The defendant has satisfied the contest. As mentioned earlier, motive has not been to confer any interest or title in property to plaintiff-appellant. Thus considering in my opinion, above decision which has been referred by the learned Counsel is not of any help to appellant. The other decisions in the case of Rajagopal Reddy is also of not much help for the decision of this case. There can be no dispute from the principles of law laid down by the decision of the Patna High Court that the person in whose name the property is purchased is presumed to be the real owner of the property-onus of proving that transaction is benami on the claimant. There can be no dispute as mentioned earlier, so far as this basic proposition is concerned. The defendant-respondent has been successful in discharging its burden on yardsticks of the law laid down in Jayadayal Poddar’s case, supra, and in establishing that the transaction in question has been benami in the name of plaintiff, the plaintiff is not and has not the owner of the suit property. The Trial Court decree dismissing plaintiffs suit is correct. Thus, considering in my opinion, the present appeal is devoid of merits and is dismissed with costs. The Trial Court decree is affirmed herewith.