JUDGMENT
V. Jagannathan, J.
Page 1641
1. This appeal is by defendant No. 3 before the trial Court and the said appellant is aggrieved by the judgment and decree passed in R.A.No. 85/1989 by the Page 1642 learned I Additional District Judge, Dakshina Kannada, Mangalore, (Lower Appellate Court) reversing the judgment and decree dated 12.4.1979 passed in O.S.No. 12/1973 by the trial Court.
2. The facts in brief are to the effect that one Isabella Veigas had two sons and one daughter viz. William Veigas, Lawrence Veigas and Juliet Mathias. The said Isabella settled the suit schedule properties in favour of her son Lawrence Veigas and wife of the said Lawrence Veigas viz. Mrs. Mildred Veigas in equal moiety keeping life interest as per the registered settlement deed and she also made provision for her daughter Mrs. Juliet Mathias by paying suitable dowry and bequeathing some land to her son. Lawrence Veigas, who was the father of the plaintiff in the suit, settled his share of the property which he got from his mother in favour of William Veigas. Later on, the marriage relationship between Lawrence Veigas and his wife Mildred got strained and therefore, she filed a suit against her husband i.e. Lawrence Veigas and the said suit ultimately led to a compromise and in the final decree proceedings, the share of Mildred Veigas was purchased by defendant No. 1- William Veigas. That is how the entire suit schedule property came to the hands of William Veigas, The plaintiff before the court below, being one of the four children of Lawrence Veigas, brought the suit before the Trial Court and prayed for declaration and possession in his favour in respect of the suit schedule property on the ground that the settlement deed executed by Lawrence Veigas in favour of the defendant No. 1-William Veigas was a benami transaction and the property which was settled in the name of the defendant No. 1- William Veigas was to be held by the defendant No. 3 as benami dhar on behalf of the true owner i.e., Lawrence Veigas and the reason for Lawrence Veigas to settle the property in favour of the defendant No. 1 was on account of the insolvency petition No. 149/1944 being filed by the said Lawrence Veigas in the High Court of Bombay and therefore, in order to free himself from the pressures of the creditors, Lawrence Veigas had to resort to this benami transaction and as such what was held by defendant No. 1-William Veigas was actually the property owned by Lawrence Veigas and defendant No. 3 was only a benami dhar was the contention taken by the plaintiff before the Court below. It was also contended that, subsequent to the compromise decree, the settlement deed executed by defendant No. 1-William Veigas in favour of his sister Juliet Mathias also got tainted by the earlier benami transaction and as such both these transactions are not binding on the plaintiffs and he thus prayed for the above said reliefs in the suit.
3. On the other hand, the stand of the defendants before the court below was that Lawrence Veigas, father of the plaintiff, had settled his share in the property in favour of his brother William Veigas under a registered settlement deed dated 5.4.1944 and since then the said defendant No. 1- William Veigas became the absolute owner of the half share of the suit property. As regards the other half share is concerned, in view of the suit filed by the wife of Lawrence Veigas leading to a compromise and a final decree being passed on 9.12.1947 under which it was agreed that the defendant Page 1643 No. 1 i.e., William Veigas shall pay Rs. 13,670/- to the above said Mildred Veigas in full and final settlement of her half share in the property, accordingly, the said amount was paid by the defendant No. 1 William Veigas and thereafterwards, the defendant No. 1 having become the owner of the entire suit schedule property, settled the same in favour of his sister i.e. the defendant No. 2 by settlement deed-4.7.1963 by keeping life interest for himself and later on even that was also transferred to the defendant NO. 2 through registered deed dated 25.2.1972 and thus defendant No. 2 became the absolute owner in respect of the suit properties and as far as the benami nature of the transaction is concerned, the defendants before the trial Court disputed the said stand of the plaintiff and it was also contended that the defendants were in peaceful possession and enjoyment of the suit schedule property ever since the settlement that took place in the year 1944 and therefore, the suit of the plaintiff did not merit any consideration and it was also barred by time.
4. Based on the pleadings of the parties, the learned Judge of the trial court framed as many as 11 issues and the core issues revolved around the nature of the settlement deed i.e. whether it was a benami transaction or whether it was actually a settlement effected by Lawrence Veigas in favour of his brother William Veigas?
5. After appreciating the evidence let in by the parries, both oral and documentary, the trial Court came to the conclusion that the plaintiff had failed to establish the benami nature of the transaction that led to settlement deed being executed in the year 1944 and on the other hand, the trial Court was of the view that Lawrence Veigas had actually settled the property which was the subject matter of the settlement deed in favour of his brother William Veigas and it was not the intention of Lawrence Veigas to treat the said transaction as one of benami in nature. The trial Court also found that the suit filed by the plaintiff was barred by time inasmuch as in respect of the relief of declaration which was sought by the plaintiff, the trial Court found that the plaintiff was aware of his rights as early as in the year 1958 and kept mum only to wake up long after the limitation period got over and therefore, the trial Court agreed with the contention of the defendants that the suit was barred by time. Consequent to the said findings on the core issues, the trial Court answered issues 1, 2, 5 and 6 against the plaintiff and issues 3 and 6 in favour of the defendants. Only issue No. 4 was answered in favour of the plaintiff. The suit ultimately came to be dismissed in the light of the findings recorded as aforesaid.
6. Aggrieved by the dismissal of the suit, the plaintiffs preferred appeal before the Lower Appellate Court in R.A.NO. 85/1989. The Appellate Court on appreciating the evidence placed by the parties before the lower appellate court and also taking into account the reasons given by the Trial Court, came to the conclusion that the settlement deed i.e. Ex.P2 was nothing but a transaction which was purely benami in nature and the circumstances that were placed before the trial Court in the form of evidence by the parties also led the Appellate Court to take the view that Lawrence Page 1644 Veigas had no intention whatsoever of parting away his share of the property in favour of William Veigas and as the said Lawrence Veigas was under tremendous financial pressure as he was due to several creditors and also filed an insolvency petition before the High Court of Bombay, and it was the desire of Lawrence Veigas to see that the properly does not go out of the family circle and more importantly his children should not be deprived of the property, as such the above said Lawrence Veigas therefore, took the step of protecting his property by settling it in favour of his brother-William Veigas for the above said purposes and as such, the circumstance would go to establish that the transaction which led to Ex.P2 coming into existence was purely one of benami in nature and it was never intended by the settler that the property should be enjoyed absolutely by his brother William Veigas. The teamed Judge of the Appellate Court also took the view that the case on hand required examination of the evidence and other circumstances by having recourse to an armchair technique and therefore, one has to put himself into the shoes of Lawrence Veigas and view the transaction. Another important factor that led the Appellate Court to take the said view was the admission made by DW1- defendant No. 1 in the course of his evidence that he had no money with him at the time and he was a priest and was leading a life of a recluse and in other words, he had no connection whatsoever with the worldly affairs or with the worldly matters. The issue concerning limitation was also answered by the Appellate Court in favour of the plaintiff by holding that as the defendant had set up a plea of adverse possession, limitation will have to be considered in accordance with Article 65 of the Limitation Act and as the suit had been filed by the plaintiff within 12 years of the refusal on the part of the defendants to hand over possession of the suit property to the plaintiff, the suit as such was within time.
7. It is on these reasoning the Lower Appellate Court held that the findings recorded by the trial Court had to be reversed and consequently, the Lower Appellate Court did reverse the finding of the trial Court and allowed the appeal filed by the plaintiff and the suit was decreed. Aggrieved by the said decision of the lower Appellate Court, the defendants are in appeal before this Court.
8. The following substantial questions of law has arisen for consideration in this second appeal:
1. Whether Ex.P2 dated 5.4.1944 executed by Lawrence Veigas in favour of defendant No. 1, which is a Settlement Deed in favour of Defendant No. 1 can be stated to be benami and for the benefit of her children?
2. Whether in the case of a Settlement Deed, a plea of benami can be set up?
3. Whether in the case of a sale which take place under a compromise in O.S.NO. 8/1947, a plea of benami can be set up by the plaintiff?
4. When the Settlement Deed dated 5.4.1944 Ex.P2 and the sale evidenced by Ex.P11 and Ex.P12, Judgment and decree in Page 1645 O.S.NO. 8/47 dated 25.8.1947 have been acted upon, whether a plea of benami can be set up by the plaintiff in the year 1973 after a long lapse of time?
5. When the plaintiff in a letter dated 19.10.1971 Ex.P34 set up a case that the settlement deed of the year 1944 is a forged one, is it open to him to take a plea of benami subsequently stating that the settlement is a benami etc?
6. In the face of Ex.P5, the release deed executed in favour of the plaintiff by his other brother and sister on 19.12.1972, when it is stated that they had not instructed their advocate to issue a notice Ex.P6 dated 2.8.1972 in which notice a plea of benami had been taken, whether it was open to the first Appellate court to say that the settlement deed is a benami one?
7. When the plaintiff pleads that the settlement deed and other transactions were to screen the property from the reach of the creditors of Lawrence Veigas, whether a plea of benami can be taken by the plaintiff contending that a deed to defraud the creditors is a benami one?
8. Whether the suit filed by the plaintiff was barred by limitation?
9. I have heard the learned Counsel for the appellant Sri. K. Giridhar and the learned Counsel for the respondent Sri. V.P. Kulkarni and have carefully gone through the entire material forming the paper book.
10. Learned Counsel for the appellant submitted that the Lower Appellate Court erred in dislodging the well reasoned finding of the trial court and the approach of the Lower Appellate Court was not based on the actual evidence that was placed before the trial Court, but it was more in the nature of conjectures and surmises. The philosophy of looking to the case of the parties from an arm chair angle was totally incorrect because such an approach is required only in case of examination or interpretation of a will whereas in the instant case, the evidence taken on the whole would go to establish that the settlement deed-Ex.P2 was never intended to be one of benami in nature because the settler himself i.e. Lawrence Veigas had admitted in the suit which was filed against him by his wife i.e. O.S.NO. 8/1947 that the transaction leading to settlement Ex.P2 was neither a sham transaction nor it was a colourable transaction. Lawrence and his wife along with other defendants in the said suit ultimately compromised the matter and following the final decree proceedings, even the share of Mildred Veigas was also purchased by the defendant No. 1 by paying an amount of Rs. 13,000/- and odd. Therefore, these events would go to establish that even during the life time of the settler it was never intended that the settlement deed Ex.P2 was to be construed as a family transaction. Apart from these two events, even the conduct of the plaintiff also go to establish that the plaintiff himself was not very sure as to whether the settlement deed was of a benami nature or was it a forged document. Referring to the document which was a Release deed (dated. 19.12.1972) executed by the plaintiff’s brothers and sisters in favour of the plaintiff, it was Page 1646 submitted that even the brothers and sisters of the plaintiff had disowned the claim of benami . Learned Counsel also referring to the evidence of plaintiff wherein the Plaintiff was examined as PW1 to contend that the plaintiff was fully aware of his rights in respect of the suit property, if at all there was any right, as early as in the year 1958, and the plaintiff took no steps to sue the defendants and therefore, the evidence of PW1 will also go to establish that the suit filed by the plaintiff was hopelessly barred by time. The stand of the plaintiff was totally inconsistent, examined from any angle of his own pleadings and evidence placed by him before the trial Court.
11. The learned Counsel for the appellant further argued that the findings of the trial Court was based on legal evidence and the approach of the Appellate Court was one of conjectures and surmises and the conclusion reached by the Appellate Court was not backed up by legal evidence and therefore, having regard to the principles of law laid down by the Apex Court and various other Courts including the Privy Council, the Appellate Court’s reasonings is contrary to the established position in law and therefore, the said decision of the Appellate Court requires to be interfered with in this second appeal by this Court. The findings recorded by the Appellate Court are perverse in nature and even as regards the issue concerning limitation, the Lower Appellate Court erred in not taking into account the evidence placed by the parties and the provision of law applicable to the case on hand.
12. In support of his submissions the learned Counsel for the appellant placed reliance on the following decisions:
1. AIR 1926 PRIVY COUNCIL 77;
2. AIR 1934 ALLAHABAD 226;
3. AIR (37) 1950 CALCUTTA 1 (C.N. 1)
4. AIR 1954 PATNA 562;
5. AIR 1957 SC 49;
6. AIR 1962 SC 370;
7. AIR 1965 SCC 1364;
8. AIR 1969 MADRAS 252
9. AIR 1971 SC 1542;
10. AIR 1974 SC 171;
11. AIR 1975 MADRAS 95;
12. AIR 1977 MADRAS 19;
13. 1977 (1)SC 816;
14. AIR 1980 SC 727;
15. 1994 SUPP(1) SCC 734;
16. AIR 1990 MADRAS 46;
17. AIR 2001 (3) SCC 965;
18. 2007 AIR SCW 1629;
Page 1647
19. 1956 SC 593;
20. 2007 AIR SCW 3018.
Referring to the principles laid down in the aforesaid decisions, the learned counsel concluded his arguments by submitting that the judgment passed by the trial Court will have to be upheld and that of the Lower Appellate Court requires to be reversed.
13. On the other hand, Sri. V.P. Kulkarni, learned Counsel for the respondents-plaintiff submitted that the lower Appellate Court has rightly arrived at the conclusion that the suit of the plaintiff will have to be decreed and the reasoning given by the lower Appellate Court is based on evidence placed on record and the admission made by DW1 in the course of his evidence itself will to go indicate that the defendant No. 1 had no money whatsoever to purchase the property under the settlement deed Ex.P2 and the events that led to the said settlement deed would also go to establish the fact that Lawrence Veigas never intended to transfer his property to his brother William Veigas at the cost of depriving his own children. It was submitted that it is unthinkable that a father would settle the properties in favour of his brother and not save the property for his own children. The very fact that the insolvency petition was filed before the Bombay High Court is an indication of the financial trouble in which Lawrence Veigas was placed and therefore, it was understandable on the part of the Lawrence Veigas to have taken a wise decision to settle the property for the time being in favour of his brother in the form of a benami transaction so that after the storm subsides in the form of insolvency proceedings, the property will revert back to his children. It is under these circumstances, the case of the parties will have to be viewed and therefore, the arm chair approach indicated by the Lower Appellate Court cannot be construed as an erroneous one. Referring to the evidence on record it was submitted that the Lower Appellate Court has taken note of the admissions made by DW1 in clear terms with regard to his financial capabilities and therefore, the said admission has to be given due weight and accordingly, the Appellate Court did take this into consideration and the other circumstances also led to the inference that the settlement deed-Ex.P2 was nothing but a transaction which of a benami nature.
14. It was also contended that. DW1 himself admitted in the course of his evidence that he was not the owner of the property and as regards the stand taken by Lawrence Veigas in the suit that was filed by his wife i.e. O.S.8/1947, it was submitted that as there was an insolvency petition which was pending, the defence taken by the Lawrence Veigas in the written statement filed in O.S.NO. 8/47 was but a natural one and anybody in his place would have taken the very stand. As far as the limitation ground is concerned, it is submitted by the learned counsel for the respondents, that the Lower Appellate Court was justified in holding that the suit was not barred by limitation having regard to the provision contained in Article 65 of the Limitation Act. It was only when the defendants failed to respond to the notice issued by the plaintiff, that the time started to run and as such Page 1648 the suit was filed within 12 years from the said occurrence. Therefore, the view taken by the Lower Appellate Court in all other respects is based on the evidence led by the parties and also the law bearing on the questions involved in the suit. Referring to the scope of this Court in the second appeal, it was submitted by the learned Counsel that, so long as the view taken by the Lower Appellate Court is based on the evidence on record, merely because another view is possible that will not be a ground for this Court to interfere with the findings of the Lower Appellate Court. It was also submitted that the question relating to the transaction being benami in nature is purely a question of fact and when the lower Appellate Court has considered the said issues based on the well recognised principles and evidence on record, such a finding of the Lower Appellate Court cannot be interfered with in the second appeal. In support of his submissions, he placed reliance on the following decisions:
i) ILR 1998 KARNATAKA 1442;
ii) AIR 1969 MADRAS 257;
iii) ILR 2000 KAR 1223;
iv) AIR 1996 SC 238;
v) AIR 1981 SC 102;
vi) AIR 1964 SC 234;
vii) KARNATAKA LAW JOURNAL 1990(3) 497
viii) AIR 1980 SC 727.
15. Having thus heard both sides and also after considering the decisions cited by the learned Counsel for the parties and on a careful perusal of the judgments of both the courts below and also the substantial questions of law involved in this appeal, the core issue upon which all the other substantial questions of law devolve is, whether the settlement deed Ex.P-2 is to be considered as one of a benami transaction and the second and important issue that goes to the root of the matter is one concerning the question of limitation.
16. As far as the relationship between the parties is concerned, the genealogical tree can be described as under:
ISABELLA VEIGAS
|
_________________________________________
| | |
Rev. Fr.W.E.Veigas Mrs. Juliet Mathias Lawrence Veigas
_______________________________________________________
| | | |
Mrs. Themla Allen Veigas Claudius Vegas Boniface
Vegas (Plaintiff) VeigasThere is no dispute with regard to the relationship between the parties and there is also no dispute with regard to the first settlement deed by which Isabella Veigas settled the property in favour of both Lawrence Veigas and his wife Mildred Veigas. The said deed Ex.P1 is dated 4.12.1939. But the trouble starts with Ex.P-2 dated 5.4.1944, which is the Page 1649 settlement deed executed by Lawrence Veigas in favour of the first defendant Williams Veigas the brother of the said Lawrence Veigas. The said document which has been produced at pages 192 to 194 of the paper book reveals that half portion of the property which Lawrence Veigas got from his mother is being settled now in favour of William Veigas i.e., the first defendant and the factors which motivated Lawrence Veigas to settle the property is also mentioned in the said deed with the following words:
17. No doubt, at the time when Ex.P-2 was executed on 5.4.1944, all the children of the settler were too young. Learned Counsel for the respondent contended that the settler would not have even dreamt of parting away with his property in the manner indicated in Ex.P-2 forgetting the interest of his own children who were all minors at that time. The same view is also expressed by the lower appellate court. No doubt, the said document Ex.P-2 does not mention any money having been paid as consideration. Referring to the evidence of DW1, William Veigas, it was submitted that there was an admission by William Veigas, that he was not earning any amount and he was a priest and his earnings from the Church was hardly Rs. 100/- or 200/-per month and further there is an admission by DW1 that the property does not belong to him. Reading together all these evidence along with the insolvency petition filed in the Bombay High Court, in Insolvency No. 149/1944, it was contended that the transaction as per Ex.P-2 was purely a benami one. Having regard to the said contention, which is also favoured by the lower appellate court and taking into consideration the contention urged on behalf of the appellant before this Court and the evidence on record, whether it can be said that Ex.P-2 part took in the nature of a benami transaction.
18. No doubt, the question concerning the transaction being a benami transaction or not is purely a question of fact as rightly submitted by the learned Counsel for the respondent. The decision reported in AIR 1969 Madras 252 is also to the said effect As far as the principles of law to be kept in view in regard to a transaction which is benami, is concerned, it is useful to refer to the judgments of the Apex Court at this juncture. In the case of Pratap Singh v. Sarojini Devi 1994 Supp (1) SCC 734 Page 1650 the Apex Court, referring to the five principles to be taken into consideration where benami is pleaded, has observed at paragraph Nos. 41 and 81 thus:
41. It has been held in Mayne’s Hindu Law, 13th Edn. At page 1201 as under:
(1) Source of the purchase money:
(2) nature and possession of the property and custody of the title deeds;
(3) motive’
(4) relationship between the parties;
(5) conduct of the parties in dealing.
81. The law relating to benami is stated in Jaydayal Poddar v. Mst. Bibi Hazra:
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 the 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 properly 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 Page 1651 most important test for determining whether the sale standing in the name of one person, is in reality for the benefit of another.
In another decision in the case of Krishnanand v. State of M.P. dealing with the question relating to burden of proving a transaction as a benami transaction, the Apex Court has observed thus at para 26:
It is well settled that the burden of showing that a particular transaction is benami and the appellant owner is not the real owner always rests on the person asserting it to be so and definite character which would either directly prove the fact of benami or established circumstances unerringly and reasonably raising an inference of that fact. 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 conjectures or surmises as a substitute for proof. (Vide Jayadayal Poddar v. Mst. Sibi Hazra). 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.
In another decision reported in the case of Ponnuswamy Nadar v. Narayanan Nadar it has been observed thus:
Though in cases of alleged benami transactions, there may be a ground for suspicion yet a court’s decision must rest not on suspicion or conjecture, but upon legal grounds established by legal testimony. In cases of this character, the determination of the question depends not only on direct oral evidence but also upon circumstances and surroundings of the case concerned. It has been held repeatedly that the burden or proof lies heavily on the person who claims against the tenor of the deed, that is, the alleged beneficiary, to show that the ostensible vendee was a mere name lender and the property was in fact purchased only for his benefit. Such burden would be discharged by such a plaintiff by satisfying the well-known criteria viz., (1) the source of purchase money relating to the transaction, (2) possession of the property, (3) the position of the parties and their relationship to one another, (4) the circumstances, pecuniary or otherwise, of the alleged transfer, (5) the motive for the transaction, (6) the custody and production of the title deeds and (7) the previous and subsequent conduct of the parties. Each of the above-said circumstances, taken by itself is of no particular value and affords no conclusive proof of the intention to transfer the ownership from one person to the other. But a combination of some or all of them and a proper weighing and appreciation of their value would to a long way towards indicating whether the ownership has been really transferred or where the real Page 1652 title lies. In every benami transaction, the intention of the parties is the essence. The true test to determine whether the transaction is benami or not is to look to the intention of the parties viz., whether it was intended to operate as such or whether it was only meant to be colourable; if colourable, the transaction is benami , otherwise the transaction is not benami . On the other hand, if the parties intended that it should take effect, the transaction cannot be said to be benami .
In the very same decision, the observations of the Apex Court in the case of Surasaibalini v. Phanindra Mohan are as under:
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 enjoyments, would be a real 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 a 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 gift to B, and it would then not be a case of benami notwithstanding that the purchase money did not proceed from the defendant
The principles relating to a benami transaction have been clearly laid down in Abdul Latif Kazi v. Abdul Huq Kazi 28 Cal WN 62 : AIR 1924 Cal 523. From the principles laid down in the decisions, it is clear that the person who impugns the apparent character of the transaction, viz., the appellant herein, must show something or other by letting in legal evidence establishing that the transaction in question is a benami one, and the issue cannot be disposed of by a mere conjecture or suspicion as to the various circumstances surrounding the transaction, since the very object of a benami transaction is secrecy. Section 101 of the Evidence Act provides that any one who desires a court to give judgment as to any legal right or liability dependant on the existence of the facts which he asserts, must prove that those facts exist. The evidence adduced in cases of this character should stand the test of strict scrutiny and satisfy the tests mentioned above. In other words, the evidence must be reliable and acceptable, impelling the court to take a view contrary to the recitals in the impugned document. The consideration of such evidence should be in a proper manner and in the right perspective. Now, having the principles in mind we shall discuss the evidence, oral and documentary, under the various heads.
Page 1653
In the decision referred to by the learned counsel for the respondent in the case of V.O.C. Arumugham Pillai v. Alango and Ors. it has been observed at paragraphs 4 and 8 thus:
4. Learned Counsel then suggested that the absence of motive for benami is not always conclusive on the question. True, but when the purchase in the names of one or other or some of the members of the family is consistent with an intention to make the acquisitions for the family and there is nothing unsual in such acquisition, certainly, the court may give some weight to the absence of motive and absence of an acceptable explanation for taking the sale deeds in the name of his sons. Even as the absence of a motive need not necessarily exclude the theory of benami , the fact that some motive is shown will equally not bar the rejection of the plea of benami . While on questions of benami , the court will not indulge in suspicion and surmise, it will have to take into consideration the facts and circumstances as established by the record and from an overall picture of the entire evidence, draw its inference. Motive, the source of consideration, possession of the property and its enjoyment, custody of title deeds, these are various features, which may severally or cumulatively weigh and tilt the scale one way or other. But these features are not exhaustive of the circumstances on which the final conclusion of the Court has to be based. Nor can it be said that in all cases the presence or absence of one of the other of these circumstances will be helpful in deciding the real position. At times other considerations than motive, possession and sources of consideration may play a vital part in the determination. In certain circumstances only one or the other of the above specified elements may alone be of assistance.
8. But even assuming in favour of the appellant that the entire consideration for the sales had been provided by the appellant that may not be conclusive of the question. As it is, when it is not clearly made out that the consideration has wholly been provided by the father even assuming that the sons have not proved their contribution, the mere fact that a good part of the consideration is proved to have proceeded from the father cannot be decisive of the question I have pointed out already that for the purchase under Ex.A. 5, proceeds from the acquisition of the ancestral house could have gone in.
The legal position concerning the burden and proof is concerned, as regards benami transaction, the privy council in the case of (Mating) Po Kin and Anr. v. Maung Po Shein AIR 1926 Privy Council 77 observed that “in all benami dar transactions the very object of the parties is secrecy; but still the person who alleges that property conveyed on another belongs to himself must prove his attention and prove it beyond reasonable doubt.”
In the case of Sm. Maya Debt and Ors. v. Sm. Rajalakshmi Debi and Ors. it has been observed thus:
Page 1654
The question of proving that a transaction is benami rests on the person who argues against the tenor of the deed. It is also well established that no conclusion as regards the benami character of a transaction can be founded on suspicion.
Where a gift of land is made by a father in favour of his son and the name of the donee is mutated in the landlord’s sherista and rent is paid by the donee to the landlord it must be assumed that the payment was made by the donee on his own behalf unless it is shown that he acted as agent of the donor. The fact that the donor had debts at the time of gift is not conclusive to show that the gift was a benami transaction.
19. Having regard to the above settled position in law, I have carefully examined the entire evidence on record both oral and documentary and it is not in dispute that Ex.P-2 came into existence on 5.4.1944 as a settlement deed. No doubt, in the said deed, no amount is mentioned. Nevertheless, there is a mention in the said deed that as the first defendant had helped the settler and as the settler also had affections towards the first defendant, these factors prompted the settled i.e., Lawrence Veigas to settle the property in favour of the first defendant Yet, it is but natural that a question will arise in the minds of any reasonable person as to what prompted the settler to give the property to his brother and not take into account the interest of the children of the settler. The contention of the plaintiff that, because there was financial problems and insolvency petition had been filed in the High Court of Bombay, no doubt, may give rise to suspicion concerning the nature of document Ex.P-2. But suspicion howsoever grave cannot take the place of proof. Except the event leading to insolvency petition being filed, there is no other circumstance to give rise to view the settlement deed as one of a benami transaction. As far as the admission made by DW1 in the course of his evidence is concerned, the said admission in the cross-examination was made by DW1 when he was in the evening of his life inasmuch as he was in his late 70s. But in the course of his evidence, during the examination-in-chief, DW1 has clearly spoken about his capability also. This evidence of DW1 will have to be read in conjectures with the evidence of the plaintiff (PW1). PW1 has stated in the course of his cross-examination that he does not know whether the first defendant was helping his father before 1944 and he does not know whether the first defendant has sent lot of money to his father before 1944. Therefore, the evidence of these two witnesses read together does not give rise to take the view that the first defendant was entirely in a state of penury. Even otherwise, as the saying goes “one swallow does not make a summer”, one stray admission by PW1, will not by itself give scope to close the eyes to the rest of the evidence and the circumstances, to hold that DW1 had no money to purchase the property under Ex.P-2. As I have already said, Ex.P-2 is not a sale deed, but it is termed as a settlement deed and the factors which made the settler to part with the property are also mentioned in the settlement Page 1655 deed. The Apex Court has observed in the case of Nagubai Ammal and Ors. v. B. Shama Rao and Ors. 1956 SC 593 at paragraph 18 reads thus:
An admission is not conclusive as to the truth of the matters stated therein. It is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made. It can be shown to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to his detriment, when it might become conclusive by way of estoppel.
Therefore, the weight to be attached to the said admission of PW1 will have to be assessed, taking into account the other circumstances of the case.
20. The other circumstances are, the suit filed by the wife of Lawrence Veigas in O.S.No. 8/1947 against Lawrence Veigas and in the said suit, though the wife has taken the stand in her plaint that Ex.P-2 was a sham and a colourable transaction, by way of reply in his written statement Lawrence Veigas has stated that not only he was not a party to the said suit, but he has also stated that the allegations concerning the settlement deed being one of a sham and colourable transaction, are not admitted by him. This goes to show, that even during the life time of the settler, the settler was very sure of the nature of transaction that ended in the settlement deed Ex.P-2. Had the transaction been a colourable one in nature, nothing would have prevented Lawrence Veigas by saying so in his written statement, which was filed in the above suit, almost three years after the settlement deed came into existence. The next circumstance is that the said suit in O.S.No. 8/1947 ended in a compromise and thereafter, in a final decree proceedings, the share of the wife of Lawrence Veigas was also purchased by the first defendant by paying an amount of Rs. 13,000/- and odd. Assuming for argument sake that the settlement deed Ex.P-2 was a transaction in the nature of a benami one, the settler was very much aware that his share of the property has gone to his brother under Ex.P-2 and therefore, nothing prevented the settler from ensuring that atleast in the final decree proceedings which was in culmination of O.S.No. 8/1947, the share of his wife could have been purchased in the name of his children. But that was not to be.
21. As far as the other circumstances are concerned, the plaintiff himself is not sure as to whether the document Ex.P-2 is a settlement deed or it is one of benami nature or for that matter, it was a document forged by the first defendant. In the course of his cross-examination, PW1 has stated that he had no idea as to whether the settlement deed Ex.P-2 executed by his father is a true settlement deed in favour of his brother (DW1) or not. He further states in the cross-examination that he was fully aware of the contents of his father’s written statement filed in the suit filed by his mother and so also, was aware of his father’s stand taken in that suit regarding settlement deed being executed by his father in favour of the first defendant and further says that his father had stated therein that the settlement deed is a true one.
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22. All these circumstances taken together, therefore, do not lend any support to the proposition that the transaction leading to Ex.P-2 was one of benemi in nature. No doubt, in the oral evidence of PW1 one can get necessary material to raise a suspicion regarding the nature of the document Ex.P-2. However, in the absence of evidence being placed to conclusively prove the nature of the transaction as one of benami in nature, it is not possible to arrive at the said conclusion merely based on the conjectures and surmises, which was the approach adopted by the lower appellate court. The learned judge of the lower appellate court failed to properly appreciate the reasoning given by the trial court with regard to all the circumstances surrounding Ex.P-2. As such, the appreciation of the appellate court was erroneous from two angles. The first one is that, it failed to read the evidence on the whole in proper perspective as was done by the trial court and secondly, the appellate court assumed for itself certain conclusions, which were based on conjectures and surmises which are in the nature of armchair approach as observed by the appellate court., In my considered opinion, no such armchair approach was needed in the instant case as the entire evidence placed by the parties both oral and documentary does not lead to the irresistible conclusion that the transaction leading to Ex.P-2 was benami in nature and nothing more. I, therefore, hold that the view taken by the trial court is the correct view and the transaction cannot be termed as benami in nature. Consequently, the appellate court’s view will have to be held as perverse.
23. Coming to the question of limitation, the lower appellate court had proceeded to hold that the appellant herein had set up the plea of adverse possession and therefore, it took shelter under Article 65 of the Limitation Act to hold that limitation starts from the date on which the plaintiff was told by the appellant that the appellant was in possession of the suit properties and from the said date the suit was within time. Having carefully examined the evidence on record and the reasoning given by the trial court as well as the appellate court, I am unable to subscribe myself to the view taken by the appellate court and the reason for this is not far to seek.
24. PW1 in the course of his cross-examination has clearly stated that in 1958, he becoming aware of his rights to the said property and he also says that he did not claim any right in the suit property at that time and goes on to add that it was the first defendant who was paying the tax upto 1963 and thereafter, the second defendant was paying the same. Even in his reexamination, the plaintiff has stated that after becoming aware of his rights in 1958 to the suit property, he has not raised the topic till 1961 with the first defendant. The trial court has taken note of the said evidence of the plaintiff himself and has held that reckoning the period from 1944 i.e., the date of settlement deed, the suit was barred by time and even assuming that the plaintiff came to know of his right in 1958, the suit ought to have been filed within three years from the said date and even assuming for argument sake that the appellant had set up the plea of Page 1657 adverse possession, a period of 12 years reckoned from the year 1958 also was over in the year 1970. The suit was filed in the year 1973. Thus, the finding of the trial court that the suit was barred by limitation is based on very positive evidence placed by the plaintiff himself in regard to which no doubt arises in ones mind. The lower appellate court was in error in taking the view that Article 65 of the Limitation Act ought to have been put into operation and as such, the view taken by the appellate court cannot be sustained both in law and on facts.
25. In the light of the foregoing discussion, I am of the considered opinion that the judgment of the lower appellate court requires to be interfered with and in observations made by the Apex Court in regard to the duty of the appellate court in appreciating the evidence. In the case of Santosh Hazari v. Purushottam Tiwari (dead) by L.Rs. AIR 2001 SC 965 it has been observed at paragraph 15 thus:
15.A perusal of the judgment of the trial court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on question of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the finding of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi v. Bijendra Narain Choudhary AIR 1067 SC 1124). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings Page 1658 are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact (See Madhusudan Das v. Smt. Narayani Bai ). The rule is-and it is nothing more than a rule of practice – that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge’s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact (See Sarju Pershad Remdeo Sahu v. Jwaleshwari Pratap Narain Singh ). Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation case on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now cease to be available to correct the errors of law the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one.
26. As far as the decisions cited by the learned counsel for the respondent is concerned, I have dealt with some of them and as far as the legal position concerning benami transaction is concerned, the principles laid down in the said decisions are all well accepted propositions of law. However, the facts and circumstances of the case will have to be taken into consideration before deciding as to which of the decisions apply to a particular case. Viewed from the said angle, I am of the opinion that the decisions referred to by the learned Counsel for the respondent will not come to his rescue in view of the reasons already stated by me as above.
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27. In the result, I pass the following order:
The second appeal is allowed and the judgment and decree passed by the lower appellate court is set aside and that of the trial court is restored. Parties to bear their own costs.