JUDGMENT
S.S. Subramani, J.
1. Defendants 2 to 5 in O.S. No. 711 of 1979, on the file of District Munsifs Court, Erode, are the appellants. 5th appellant is the legal representative of 1st appellant who died pending suit.
2. Respondents were also impleaded only in their capacity as legal representatives of the deceased plaintiff, who died after the dismissal of the appeal by the lower appellate court and before the institution of this second appeal.
3. Malaya Gounder, who is now no more, filed the suit for declaration and permanent injunction on the following allegations:
The plaint schedule property originally belonged to the plaintiff and his younger brother Marappa Gounder, and they constituted a Joint Hindu Family. Marappa Gounder died in or about 1922 leaving behind his wife Nachayee and only daughter Ammani Ammal. He had no sons, and, being a joint family property, by survivorship plaintiff became absolute owner of those properties. Nachayee also died some-time in the year 1925. When Marappa Gounder was alive, he stood guarantee for his uncle Chennimalai Gounder in a loan transaction advanced by one Somasundaram Chettiar for Rs. 200. Somasundaram Chettiar, a Nattukottai Chettiar, was a money-lender. It appears that Chennimalai Gounder was indebted to that money-lender very heavily. It is said that in order to shield the properties belonging to Chennimalai Gounder, he approached one Palayakottai Pattayakkarar, who was a very influential person in that locality. At the instance of Pattayakkarar, Chennimalai Gounder executed a sale deed of all his properties in favour of his Secretary Ramiah Pillai. More than ten acres of land were in the hands of Chennimalai Gounder through Ramiah Pillai. His uncle thereafter migrated to Tiruppur, and never returned to the village. The money-lender Somasundaram Chettiar, on understanding that the entire property of Chennimalai Gounder has been taken ever by Pattayakkarar, filed O.S. No. 338 of 1925, making Chennimalai Gounder and plaintiff as defendants. Plaintiff was impleaded as legal representative of his brother Marappa Gounder, who was the guarantor for the debt of Rs. 200. The suit was decreed ex parte, and later, properties belonging to or in the possession of the plaintiff were brought to sale in court auction. The auction was held on 1.8.1927. By that time, the money-lender was also no more, and in the Execution Petition, he was represented by his legal heir Chockalingam Chettiar. In court sale, the plaint property was bid for a sum of Rs. 305. The sale was confirmed and symbolical possession was also taken by one Subramania Iyer, a benamidhar of the decree-holder Chockalingam Chettiar. Long thereafter, plaintiff approached Pattayakkarar, and he very influential person in that locality. At the instance of Pattayakkarar, Chennimalai Gounder executed a sale deed of all his properties in favour of his Secretary, Ramiah Pillai. More than ten acres of land were in the hands of Chennimalai Gounder through Ramiah Pillai. His uncle thereafter migrated to Tiruppur, and never returned to the village. The money-lender Somasundaram Chettiar, on understanding that the entire property of Chennimalai Gounder has been taken over by Pattayakkarar, filed O.S. No. 338 of 1925, making Chennimalai Gounder and plaintiff as defendants. Plaintiff was impleaded as legal representative of his brother Marappa Gounder, who was the guarantor for the debt of Rs. 200. The suit was decreed ex parte, and later, properties belonging to or in the possession of the plaintiff were brought to sale in court auction. The auction was held on 1.8.1927. By that time, the money-lender was also no more, and in the Execution Petition, he was represented by his legal heir Chockalingam Chettiar, in Court sale, the plaint property was bid for a sum of Rs. 305. The sale was con-firmed and symbolical possession was also taken by one Subramania Iyer, a benamidhar of the decree-holder Chockalingam Chettiar. Long thereafter, plaintiff approached Pattayakkarar, and he was kind enough to pay a sum of Rs. 500 to Chockalingam Chettiar in full and final settlement of the decree debt in O.S. No. 338 of 1925. Chockalingam Chettiar in turn sold the plaint schedule property which was bid in court auction in favour of plaintiff’s wife on 5.12.1933. The sale consideration for the same was paid through Ramiah Pillai, the Secretary of Pattayakkarar. It is alleged in the plaint that when taking the sale deed, he thought that it will not be safe to have the sale deed taken in his name as some other creditors of Marappa gounder again were likely to give trouble and, therefore, the sale deed was taken benami in the name of his wife Ramayee Ammal. It was further averred that the property was all along in his possession and that he continued to encumber the property as its owner. He mortgaged the same to cooperative society, and he treated the same as his an-cestral property. It is further said that even a partition was effected between the plaintiff and his co-sharers. In all these documents, it was described only as an-cestral property and his wife never claimed any share over the same. It is further said that his wife knew that she was only a name-lender, and she never claimed any share in the property.
4. Plaintiff’s only son Muthusami died issueless, and his widow Valliammal is also residing with him. After the death of Ramayee Ammal (plaintiff’s wife), on 2.1.1979, the daughters began to claim right over the property and even attempted to trespass into the same. Plaintiff resisted their action, and neighbours intervened and supported the claim of plaintiff. But, even then, plaintiff was not satisfied. He wanted his title to be declared that he is the owner of the property and to restrain the defendants from entering into possession.
5. In the written statement filed by appellants, herein, they denied the claim of the plaintiff. According to them, plaintiff was never the owner of the property. After the court sale, Ramayee Ammal was the abso-lute owner. She has also executed a will whereby she has bequeathed the plaint property to the defendants. They further denied the case put forward by the plaintiff that the property was purchased in the name of Ramayammal benami for him, to safeguard the same from some other creditors of Marappa Gounder. It is their case that it was a self-acquisition of Ramayee Ammal, with the help of her brothers. They also said that all documents are in their custody, and they were originally, in the custody of Ramayee Ammal, and they were also paying kist to the property. Regarding mortgage and partition, it was said that it can only be a fraudulent transaction without the knowledge of the real owner. If Ramayee Ammal was not the real owner, she would not have executed a registered will on 28.1.1974, where she has asserted their right over the property. They prayed for dismissal of the suit.
6. The trial court, after taking evidence, both oral and documentary, delivered an elaborate judgment, decreeing the suit. Exs. A-1 to A-33 were marked on the side of the plaintiff. Exs. B-1 to B-17 were marked on the side of the defendants. P. Ws. l to 3 were examined on the side of the plaintiff. D. Ws. l to 6 were examined on the side of the defendants.
7. On the evidence adduced before it, the trial court came to the conclusion that the property belonged to the plaintiff, and Ex. A-4 sate deed dated 5.12.1933 in the name of Ramayee Ammal was only a benami transaction. It was further found that the property continued to be in the possession of plaintiff and in spite of court-sale he alone was dealing with the same as owner. He further came to the conclusion that there was an intention on the part of the plaintiff in taking the sale deed in the name of his wife, i.e., he apprehended that the other creditors might move against the plaintiff since he became the legal representative of the deceased brother. The suit was decreed as prayed for.
8. When the matter was taken before the lower appellate court, the lower appellate court also confirmed all the findings of the trial court and dismissed the appeal. It is against the concurrent judgment, defendants have preferred this second appeal.
9. At the time of admission of the second appeal, the following substantial question of law was raised for consideration.
Whether the courts below have wrongly cast the onus of proving the benami nature of the sale on the defendants and further more whether they have failed to apply the various tests laid down by the Supreme Court for determination of the question whether the sale in favour of Ramayee was a benami transaction?
10. Law presumes that the person whose name appears in the document is the owner of the same. The court will have to take into account the apparent tenor of the document. That presumption can be rebutted by successfully pleading and proving that the document was taken benami in the name of another person for some reason, and the person whose name appears in the document is not the real owner, but only a benamidhar. In such case, the burden is very heavy on the person who pleads benami.
11. Regarding the burden of proof, in Manmohan Das and Ors. v. Mt. Ramdei and Anr. A.I.R. 1931 P.C. 175 : 124 I.C. 669, their Lordships held thus:
In order to determine the question of the validity or invalidity of a deed of gift it is of assistance to consider, “the surrounding circumstances, the position of the parties and their relation to one another, the motives which could govern their actions and their subsequent conduct, always re-membering that the onus of proof rests upon the party impeaching the dead….
12. In Jaydayal Poddar v. Bibi Hazra , their Lordships considered the necessary test to come to the conclusion whether a transaction is benami or not. The relevant portion of the decision reads thus:
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 in-ference 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 delib-eration, 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 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 benamidhar; (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.
13. The above decision was followed by the Supreme Court in Krishnanand v. The State of M.P. , where their Lordships gave importance to the intention of the parties for taking a document benami. According to their Lordships, ‘The essence of benami is the intention of the parties 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 the serious onus that rests on him, nor justify the acceptance of mere conjecture or surmised as a substitute for proof. It is not enough merely to show circumstances which might create suspicion, because the court cannot decide on the basis of suspicion. It has to act on legal grounds established by evidence. ‘
14. In Thakur Bhim Singh v. Thakur Kan Singh , the relevant portion of paragraph 18 reads thus:
The principle governing the determination of the question whether a transfer is a benami transaction or not may be summed up thus: (i) the bur-den of showing that a transfer is a benami trans-action lies on the person who asserts that it is such a transaction; (ii) if it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary; (iii)the true character of the transaction is governed by the intention of the person who has contributed the purchase money, and (iv) the question as to what his intention was 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.
15. In His Highness Maharaja Pratap Singh v. Her Highness Maharani Sarojini Devi and Ors. (1994) 1 S.C.C. (Supp.) 734, in paragraphs 41 and 81, their Lordships considered this point. The relevant portions of those paragraphs as given in the Headnote read thus:
Where benami is pleaded five principles will have to be taken into consideration:
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 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 benamidhar; (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 fact of each case. Nevertheless No. 1, viz., the source whence the purchase money came, is by far the most impor-tant test for determining whether the sale standing in the name of one person, is in reality for the benefit of another.
16. In a recent decision of the Supreme Court reported in Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S. Shah , their Lordships held thus:
The question whether a particular sale is benami or not is largely one of fact. Though there is no formula or acid test uniformly applicable it is well night settled that the question depends predomi-nantly upon the intention of the person who paid the purchase money. For this, the burden of proof is on the person who asserts that it is a benami transaction. However, if it is proved that the purchase money came from a person other than the recorded owner (ostensible owner) there can be a factual presumption at least in certain cases, depending on facts, that the purchase was for the benefit of the person who supplied purchase money. This is, of course, a rebuttable presumption.
In this case, as it-is admitted that defendant-respondent is the recorded owner and when purchase money had not admittedly gone from the appellant-plaintiff for execution of the sale deed, it is an uphill task for the appellant to establish that the sale deed was taken benami for him. Ofcourse, the appellant had projected certain circumstances to show that he was dealing in lands for which respondent had advanced money to him. However, appellant failed to establish that the respondent ever entertained the idea that property should belong to the plaintiff. [Italics supplied]
17. Though the courts below have concurrently held the document as benami, the same, according to me, is not legally sound. The decision is mainly based on conjectures and suspicion. Even though the legal prin-ciples on the basis of which the true character of the document is to be arrived at are stated in the judgment, while appreciating the evidence, the principles have been given a goby, leading to a legal fallacy in the conclusion.
18. As per the various decisions cited, one of the important ingredients to prove the benami nature of the transaction is, the intention of parties. In this case, the intention is stated in plaint itself, in paragraph 5.
… When taking the sale deed, plaintiff thought that it will not be safe to have the sale deed executed in his favour, as some other creditors of Marappa Gounder might again give trouble and therefore the sale deed was taken benami in the name of his wife Ramayee Ammal. But the suit properties were always treated as the absolute properties of the plaintiff alone…. ”
If this was the intention for purchasing the property in the name of the wife, and if this intention is found to be false, There cannot be any question of benami. The evidence of P.W. I itself is an answer. It is the case of the plaintiff that he became the sole owner of all the properties on the death of his brother Marappa Gounder. He was impleaded in the suit as legal rep-resentative of the deceased brother and even at the time when the suit was instituted as O.S. No. 338 of 1925, his brother was no more. There cannot be any question of inheriting the estate of the deceased, since, even according to the plaintiff, the brothers contin-ued as a joint family and he became the owner by survivorship. So, there cannot be any question of in-heriting the property. At the same time, Marappa Gounder had left behind him his wife and daughter by name Ammani Ammal. Ammani Ammal is still alive, and she is also a party in this Appeal, namely, 2nd respondent. If he has not inherited the estate of the deceased, he need not be afraid of proceeding against the property of Marappa Gounder.
19. Even if such statement is taken as true, plaintiff has admitted that at the time when Ex. A-5 sale deed was taken, neither Marappa Gounder nor himself had any other debts, and he also said that this was the only debt payable by the deceased brother. So, there was no necessity for him to take the sale deed in the name of his wife. The apprehension that there might have been some creditors to Marappa Gounder cannot be accepted. If the intention was to shield the property from the creditors, that apprehension must be on legal grounds. The plaintiff also must be in a position to show that there are various creditors and if the property is taken in his name, there was a possibility of the creditors moving against him. Again, the case of the plaintiff is that he is not indebted to any one. He has been made liable only as a legal representative. That debt also stands discharged by the court-sale in O.S. No. 338 of 1925. The entire debt stands discharged. Thereafter if he purchases the property, he purchases it on his own behalf, and not as legal representative. There cannot be any question of the creditors again moving against the property as if the property belonged to Marappa Gounder. So, the intention as alleged in the plaint falls to the ground.
20. The second important consideration relied on in the various decisions is, the source of purchase money, or who paid the purchase money. Even in the plaint, it is admitted that the plaintiff did not advance the amount. According to him, he approached Pattayakkarar in whose favour his uncle had sold the property, and he advanced Rs. 500 to settle the trans-action of Chockalingam Chettiar. In the sale deed Ex. A-5, it is seen that it was Ramiah Pillai who paid the amount, and the document stands in the name of the plaintiff’s wife. If plaintiff has not paid the consideration and the arrangement is only with Pattayakkarar, the intention of Pattayakkarar and the circumstances under which the document was taken in the name of plaintiff is of some importance. If it is a case of a debt incurred by plaintiff with Pattayakkarar, evidence must be available that there was a debt and it was discharged. That evidence is lacking. Documentary evidence shows that the plaintiff did not pay the consideration, and plaintiff also admits that he never paid the consideration. If the intention as well as payment of consideration, which are the most important ingredients, to prove a benami are found against the plaintiff, naturally, the plea regarding benami cannot be sustained. The subsequent dealings of the property also will not be a much importance in this case. The plaintiff has a case that subsequent to Ex. A-5 sale deed, he mortgaged, the property with a Cooperative Society. This property has been treated as a family property and included in the various partition deeds. If that be so, plaintiff also is not claiming any right under the sale deed. He is treating it only as a family property ignoring the sale. So, there cannot be any question of benami so far as the sale deed is concerned. Admittedly, when the purchase was made, it cannot be treated as a family property. No evidence was also let in to show that Ramayee Ammal was also aware of such transactions. If the plaintiff was recognising the sale and dealing with the property, there would have been some sub-stance. When he is not recognising the sale deed and claims the property as family property, the execution of a mortgage in favour of a Society or subsequent partition also cannot be made use of against Ramayee Ammal.
21. The custody of the sale deed, payment of revenue, etc. are of not much importance in this case, since the parties are close relations, and that too residing in the same house as man and wife. Any dealing by the husband can only be treated as an act done for the wife. The original documents are not with the plaintiff. The kist has also been paid in the name of Ramayee Ammal. The original sale deed also is produced by the defendants in this case.
22. One more important circumstance which goes against the plaintiff is that even according to him, plaintiff and his wife (till she died) were closely inti-mate and were residing together. In such case, Ramayee Ammal would not have executed a will by stating that the property belonged to her, and that too five years prior to her death. By virtue of the will, daughters became the legatees. That will has been found to be genuine by the lower appellate court. If Ramayee Ammal claimed a right in the property, an explanation is required from the plaintiff, now such a claim was made. Absolutely no evidence has bene let in that regard. In this connection, it may also be noted that Ramiah Pillai, the Secretary of Pattayakkarar, or anybody connected with Pattayakkarar was examined in this case. The circum-stance under which the payment of Rs. 500 was made, as is referred to in the sale deed Ex. A-5, is not properly explained.
23. The courts below held that the intention in the case is of importance. Courts below assumed that plaintiff being an illiterate man, might have apprehended the possibility of his property being proceeded with for recovery of the amounts due from his brother. Courts below ignored the admission of the plaintiff when he said that there was no other debt, and the only debt was the one for which the court sale was conducted. In this connection, it may also be stated that apart from the plaint schedule, plaintiff himself was owning various items of properties and the same were in his possession. He did not think of shielding those properties from the creditors. If he was already in possession of other items, merely by purchasing the property in question in the name of his wife, the apprehension which he had in his mind will be of no avail, for, the creditors could proceed against those other items of properties.
24. In the decision reported in Kistappa Naicker and Ors. v. Elumalai Naicker , M.M. Ismail, J., as he then was, considered a similar question, after taking into consideration earlier decisions of this Court. The learned Judge has held thus:
When a husband purchased property in the name of his wife by paying his own money, from that alone no inference could be drawn that the wife was only a benamidhar. Having regard to the nature of the relationship between the parties and the normal tendency of the husband to benefit the wife either by payment of money or by purchase of property in her name, the allegation of benami could be established only by proving the motive for such benami purchase.
Once the title stands in the name of a person and somebody comes and asserts that the real title vests in another person and the person in whose name the title deed stands is a benamidhar, the burden of proving that the person in whose name the title stands is not beneficial owner and the beneficial owner is somebody else, is throughout on the person who asserts to that effect and the burden never shifts.
Courts below assumed that when the consideration was paid by the husband, the intention was irrelevant. The evidence of P.W. I was believed in holding that Ramiah Pillai might have paid consideration at the instance of the plaintiff. We must note that even according to the plaintiff, he did not have the funds to pay the consideration. If that be so, the version that at the instance of the plaintiff payment was made by Ramiah Pillai, cannot be accepted unless some arrangement is pleaded and proved by examining some-body connected with Pattayakkarar. The concurrent judgments of the courts below are liable to be set aside and I do so.
25. Learned Counsel for the respondents submitted that the question of benami is a question of fact, and, therefore, in this second appeal, this Court should not interfere with those findings.
26. It is true that the question whether a transaction is benami or not is to be determined on appreciation of evidence. But, while appreciating the evidence, in this case, the courts below have disregarded the fundamental principles of law, and so, I feel that this is a fit case where an interference under Section 100, C.P.C. is called for.
27. Learned Counsel for the respondents also submitted that there is a finding by the lower appellate court that the will executed by Ramayee Ammal is genu-ine. According to him, he is entitled to challenge the same even without filling cross-appeal. I do not think that I should enter a finding regarding the genuine-ness or otherwise of the will executed by Ramayee Ammal, for, that will be an entirely different claim put forward by the plaintiff. Even if there is no will, plaintiff can come only as one of the sharers of Ramayee Ammal, and not as owner of the property. If the plaintiff is otherwise entitled, he can agitate the matter in other appropriate proceedings. In this case, I only hold that Ex. A-5 property was not purchased benami in the name of Ramayee Ammal. The property belonged to her only.
28. In the result, the second appeal is allowed. The concurrent judgments of both the courts below are set aside. The suit O.S. No. 711 of 1979, on the file of District Munsif’s Court, Erode, is dismissed. There will be no order as to costs.