JUDGMENT
J.M. Malik, J.
1. In this case the mother, Smt. Prakashi Devi, respondent herein, has crossed swords against her son Shri Ajit Singh, the appellant herein. The facts of this case are these. The plaintiff/respondent had filed a suit for possession and recovery of damages/mesne profits in respect of property No. P 7D, Narela, Delhi. In the suit it was averred that the plaintiff/respondent is the owner of the said property which was given to her by her father. The defendant/appellant was in possession of four rooms on the ground floor as a licensee. The respondent terminated the license of the appellant vide legal notice dated 16th April, 2001 and required the appellant to vacate the suit premises. The respondent had also claimed mesne profit for use and occupation of the suit property at the rate of Rs. 5,000/- per month from March 2001 till she got the actual possession of the suit premises.
2. The defendant/appellant defended the above-said suit. He enumerated the following defenses in support of his case. As a matter of fact, the suit property was purchased by his father, however, due to love and affection he got the name of his wife inserted as the vendee of the suit property. He explained that he is occupying the suit property in the capacity of an owner. A family settlement deed was executed between the family members during the life time of his father. The father of the appellant also executed a will bequeathing the property in dispute in favor of the appellant. The respondent has got no right, title or interest in respect of the property in dispute. The receipt of notice terminating the license has also been denied.
3. The trial court vide its judgment dated 27th March, 2005 decreed the suit. The first appellate court also affirmed the findings given by the trial court.
4. I have heard the counsel for the parties. The arguments urged by counsel for the appellant before this Court has two prongs. He vehemently argued that the courts below have wrongly decided that the respondent herein is the absolute owner of the property in dispute. He, however, conceded that the plaintiff/respondent has proved on record the sale deed in her favor as Ex.PW-1/1 and khasra girdwari as Ex.PW-1/2 which go to show that the respondent is the absolute owner of the suit property.
5. Learned Counsel for the appellant further submitted that the appellant was born in the year 1958, the sale deed was executed in the year 1966, consequently, the plea raised by the appellant that the house was given to his mother by her father stands falsified. He argued that as a matter of fact his father had purchased this house. Again, the respondent had no source of income to purchase the said house. He explained that the appellant had also provided funds for construction of this house. However, counsel for the appellant admitted that he does not have any proof of all these facts. Counsel for the appellant vehemently argued that at the most, respondent is a benami owner and as such, she has got no locus standi to file the present suit.
6. The appellant is tinkering with useless pleas. No reliance upon fiction like pattern of the story can be placed. Such like stories without any tangible proof are prone to fall flat. It is well settled that it is the appellant who has to carry the ball in proving that the property in question is a benami transaction. This view finds support from the authority reported in Valliammal (deceased by L.Rs.) v. Subramaniam and Ors. , wherein it is held that,
13. This Court in a number of judgments has held that it is well-settled that burden of proving that a particular sale is benami lies on the person who alleges the transaction to be benami. The essence of a benami transaction is the intention of the party or parties concerned and often, 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. Referred to Jaydayal Poddar v. Bibi Hazra ; Krishnanand v. State of Madhya Pradesh ; Thakur Bhim Singh v. Thakur Kan Singh ; His Highness Maharaja Pratap Singh v. Her HIghness Maharani Sarojini Devi and Ors. 1994 (Supp. (1) SCC 734; and Heirs of Vrajilal J. Ganatra v. Heirs of Parshottam S. Shah . It has been held that 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.
7. The property in question was purchased in the year 1966. The instant case is governed by the old Act. In the instant case the appellant did not bolster his case with evidence. It comes out from the horse’s mouth itself that the appellant does not have any proof that the money for purchase of the house in question was incurred either by his father or the appellant himself. Counsel for the appellant has stated at bar that the no such proof is available. Thus, in the absence of evidence, the case of the appellant collapses like a proverbial house of cards. On the contrary the respondent, however, explained that the above-said property was given to her by her father. The said explanation, appears to be quite satisfactory and lucid. There lies no rub in father’s gifting a property to her daughter even after her marriage. The said plea was not rebutted.
8. Secondly, it is surprising to note that the alleged family settlement or the will did no see the light of the day. Its production would have gone a long way to embolden the case of the appellant. In its absence the case of the appellant does not begin to jell. Except the ipse dixit of the appellant, there is no material brought on record to support his assertion.
9. It is also well settled that the oral evidence in respect of family settlement deed and will is not admissible in evidence in terms of Section 91 of Evidence Act. The appellant appeared in the dock as DW-1. In his cross-examination, he admitted that the property in dispute is in the name of his mother/respondent. He also stated that the family settlement deed was executed on 21.11.1997. He also stated that the alleged family settlement deed was signed by his father and one relative. He, however, admitted that the respondent/plaintiff had not signed the alleged family settlement deed. He explained that the above-said will is in the possession of his mother. He admitted that the property in dispute can fetch Rs. 1,000/-, if the same is let out. The appellant made a vain attempt to give oral evidence through Shri Ranbir Singh DW-2 and Mange Ram DW-3. Evidence of Mange Ram DW-3 can’t be considered otherwise as he did not appear in the dock for cross-examination. As DW-2 made oral statement in respect of documents as such his evidence pales into insignificance. No value is to be pinned with oral evidence.
10. The second submission made by counsel for the appellant was that no notice of termination of license was ever served upon the appellant. This argument was stated for its outright rejection. The respondent has proved on record a copy of notice as Ex.PW1/4, which was served through registered A.D., which was also placed on record and which is purported to be signed by the appellant.
11. The appeal is without merit. No substantial question of law arises. The same is, therefore dismissed at admission stage. Copy of this order and LCR be sent back forthwith.