{"id":74901,"date":"2008-11-06T00:00:00","date_gmt":"2008-11-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vijesh-chadha-anr-vs-rajindra-chadha-on-6-november-2008"},"modified":"2017-10-29T04:30:45","modified_gmt":"2017-10-28T23:00:45","slug":"vijesh-chadha-anr-vs-rajindra-chadha-on-6-november-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vijesh-chadha-anr-vs-rajindra-chadha-on-6-november-2008","title":{"rendered":"Vijesh Chadha & Anr. vs Rajindra Chadha on 6 November, 2008"},"content":{"rendered":"
Delhi High Court<\/div>\n
Vijesh Chadha & Anr. vs Rajindra Chadha on 6 November, 2008<\/div>\n
Author: Pradeep Nandrajog<\/div>\n
i.2\n*     IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n%                                   Date of Order: 06.11.2008\n\n+     RFA 404\/2007 & CM No.10091\/2007\n\n      VIJESH CHADHA & ANR.               ..... Appellant\n                Through: Mr.Pramod Ahuja, Adv.\n\n                 versus\n\n      RAJINDRA CHADHA                     ..... Respondent<\/pre>\n
                Through:      Mr.M.M.Kalra, Adv.\n\n      CORAM:\n<\/pre>\n
      HON’BLE MR. JUSTICE PRADEEP NANDRAJOG
\n      HON’BLE MR. JUSTICE J.R. MIDHA<\/p>\n
1.    Whether reporters of local papers may be allowed
\n      to see the judgment?\n<\/p>\n
2.    To be referred to the Reporter or not?<\/p>\n
3.    Whether judgment should be reported in Digest?<\/p>\n
: PRADEEP NANDRAJOG, J.(Oral)<\/p>\n
1.         Delay    in   filing   the   appeal   is   condoned.    CM<\/p>\n
No.10091\/2007 is allowed.\n<\/p>\n
2.         Heard learned counsel for the parties.<\/p>\n
3.         The appellants who are the son and daughter-in-law<\/p>\n
of the respondent have suffered a decree of possession and<\/p>\n
mesne profits against them.\n<\/p>\n
4.         The case of the respondent was that she was the<\/p>\n
                                                            Page 1 of 11<\/span>
\n owner of property No.U-6 and U-4 West Patel Nagar and that<\/p>\n
she had permitted her son and her daughter-in-law to occupy a<\/p>\n
portion on the second floor shown red in the site plan annexed<\/p>\n
with the plaint. She stated that her son and daughter-in-law<\/p>\n
started misbehaving with her and made life fairly miserable for<\/p>\n
her, compelling her to required them to move out of the said<\/p>\n
premises.\n<\/p>\n
5.          By a notice dated 7.11.2004, she requested them to<\/p>\n
vacate the premises in their occupation\/possession. They did<\/p>\n
not do so and hence she had no option but to sue for<\/p>\n
possession and mesne profits.\n<\/p>\n
6.          The defence taken by the appellants was that the<\/p>\n
mother was the registered owner of only property No.U-6 West<\/p>\n
Patel Nagar. They stated that the same was acquired by the<\/p>\n
mother with the ancestral funds i.e. funds of the grandfather of<\/p>\n
appellant No.1.   Thus, the appellants denied the right of the<\/p>\n
mother to seek possession.\n<\/p>\n
7.          We note that the appellants merely denied the<\/p>\n
ownership of the mother with respect to U-4 West Patel Nagar,<\/p>\n
New Delhi in the pleadings without stating as to who was the<\/p>\n
owner thereof.\n<\/p>\n
                                                       Page 2 of 11<\/span>\n<\/p>\n
 8.          On the pleadings of the parties following five issues<\/p>\n
were settled on 9.11.2005:-\n<\/p>\n
      “1.   Whether the defendants are occupying the
\n            premises in dispute as a licencee? OPP<\/p>\n
      2.    Whether the plaintiff is entitled to claim relief of
\n            possession, as prayed for? OPP<\/p>\n<\/blockquote>\n
      3.    Whether the plaintiff is entitled to claim
\n            damages. If so, at what rate and from what
\n            period? OPP<\/p>\n<\/blockquote>\n
      4.    Whether the property had been purchased from
\n            out of the ancestral funds of the Hindu Family for
\n            the residence and benefit of family members. If
\n            so its effect? OPD<\/p>\n<\/blockquote>\n
      5.    Relief.”\n<\/p><\/blockquote>\n
9.          It would be important to note that no issue was got<\/p>\n
settled whether the mother was not the owner of property<\/p>\n
No.U-6 West Patel Nagar.      From a perusal of the issues it is<\/p>\n
apparent that the issue which was got settled was, whether the<\/p>\n
subject property has been purchased from out of the ancestral<\/p>\n
funds.\n<\/p>\n
10.         It does happen that many a times a plea is raised in<\/p>\n
the written statement but at the time of settlement of issues<\/p>\n
the same is not pressed.      It is important to note that in the<\/p>\n
instant case appellants never requested the learned Trial Judge<\/p>\n
to re-settle the issues or re-frame issue No.4.
\n                                                          Page 3 of 11<\/span>\n<\/p>\n
 11.        From the evidence led it is apparent that parties<\/p>\n
went to trial on the understanding that the defence taken was<\/p>\n
that the mother was a mere name lender of the properties and<\/p>\n
that the same was purchased from out of the ancestral funds.<\/p>\n
12.        Before analyzing the evidence, on the issue at hand,<\/p>\n
it is impossible to note that though the property had two<\/p>\n
municipal numbers the same is conceptually and physically a<\/p>\n
single entity property.\n<\/p>\n
13.        On the issue of property being purchased benami;<\/p>\n
the onus of proof and how the same has to be discharged; we<\/p>\n
had penned a decision on 20.10.2008 disposing of RFA<\/p>\n
No.784\/2003 Satish Kumar vs. Prem Kumar & Ors.      In<\/a> paras 14<\/p>\n
to 19 of the said decision we had culled out the law relating to<\/p>\n
a plea of benami and in particular when the plea is raised by a<\/p>\n
close relation. We had noted as under:-<\/p>\n
      “”14. The law relating to onus of proof of a property
\n      being benami and discharge of said onus was first
\n      expounded by the Federal Court in the decision
\n      reported as Gangadara Ayyar & Ors v
\n      Subramania Ayyar & Ors AIR 1949 FC 88 in
\n      following terms:-\n<\/p><\/blockquote>\n
           “It was contended by the learned Counsel for
\n           the appellants that the decision of the Court
\n           below against the appellants regarding these
\n           properties had been reached because of a
\n                                                       Page 4 of 11<\/span>
\n      wrong approach to this matter in law and that
\n     the rule of onus of proof as regards benami
\n     transactions had not been fully appreciated. It is
\n     settled law that the onus of establishing that a
\n     transaction is benami is on the plaintiff and it
\n     must be strictly made out. The decision of the
\n     Court cannot rest on mere suspicion, but must
\n     rest on legal grounds and legal testimony. In
\n     the absence of evidence, the apparent title
\n     must prevail. It is also well established that in a
\n     case where it is asserted that an assignment in
\n     the name of one person is in reality for the
\n     benefit of another, the real test is the source
\n     whence the consideration came and that when
\n     it is not possible to obtain evidence which
\n     conclusively    establishes     or    rebuts    the
\n     allegation, the case must be dealt with on
\n     reasonable probabilities and legal inferences
\n     arising from proved or admitted facts. The
\n     Courts below proceeded to decide the case
\n     after fully appreciating the above rule and in
\n     our judgment their decision does not suffer
\n     from the defect pointed out by the learned
\n     Counsel     for   the    appellants.”   (Emphasis
\n     Supplied)<\/p>\n<\/blockquote>\n<\/blockquote>\n
15. In the decision reported as M.Nagendriah v M.\n<\/p><\/blockquote>\n
Ramachandraih & Anr 1969 (1) UJ 697 (SC) the
\nHon’ble Supreme Court explained the law relating to
\nproof of benami transactions in following terms:-<\/p>\n
     “……………Now if that is so, then the onus of
\n     proving that these purchase were benami was
\n     on the appellant and it was for him to show by
\n     convincing evidence that the source of money
\n     for these acquisitions was traceable to the joint
\n     funds from this business. Admittedly this has
\n     not been shown by any affirmative evidence,
\n     Shri Gupta, however, laid stress on the
\n     contention that the respondent had also not
\n                                                   Page 5 of 11<\/span>
\n      been shown to possess sufficient funds with
\n     which properties in question could be acquired.
\n     On this reasoning the counsel tried to induce us
\n     to infer that the properties must be held to be
\n     joint of the appellant and Ramachandraiah.
\n     This, in our opinion, is not a correct approach.
\n     Ostensible owner must be held to be a true
\n     owner in the absence of cogent evidence
\n     establishing that he is a mere benamidar, or is
\n     holding property for another person who claims
\n     to be the beneficial or real owner. The onus also
\n     does not change merely because the beneficial
\n     owner and the ostensible owner are brothers or
\n     they may be owning some other property
\n     jointly. The mere circumstance that the
\n     ostensible owner has not proved that he had
\n     himself paid the price or that he had sufficient
\n     funds to be able to do so, would also net be
\n     enough by itself to sustain the claim of the
\n     alleged beneficial owner. The initial onus is
\n     always on the party seeking to dislodge the
\n     ostensible title. We are not unmindful of the fact
\n     that in this country benami transactions are not
\n     uncommon and they are certainly not
\n     forwarded upon. We are equally conscious of
\n     the fact that the appellant and respondent
\n     Ramachandraiah are real brothers and not utter
\n     strangers. But at the same time it cannot be
\n     ignored, as just observed, that the initial onus
\n     must as a matter of law be on the party
\n     asserting benami nature of title………..”
\n     (Emphasis Supplied)<\/p>\n<\/blockquote>\n
16. The observations of the Hon’ble Supreme Court in
\nM.Nagendriah’s case (supra) to the effect that the
\nonus of proof of benami transactions cannot be
\ndischarged merely on account of some deficiency in
\nthe evidence led by the alleged benami owner leads
\nto an irresistible conclusion that the onus of proof of
\nbenami transaction is very heavy on the person
\nalleging the same and can be discharged only by
\nleading positive evidence.\n<\/p>\n
                                                  Page 6 of 11<\/span><\/p>\n
 17. In the decision reported as Jaydayal Poddar &
\nAnr v Mst. Bibi Hazra & Ors AIR 1974 SC 171 the
\nHon’ble     Supreme      Court      enumerated       six
\ncircumstances which must be looked into by the
\ncourts in determining        whether a particular
\ntransaction is benami or not. At this juncture, it would
\nbe apposite to refer to following observations made
\nby the Hon’ble Court in the said decision:-<\/p>\n
     “It is well settled that the burden of proving that
\n     a particular sale is benami and the apparent
\n     purchaser is not the real owner, always rests on
\n     the person asserting it to be so. This burden has
\n     to be strictly discharged by adducing legal
\n     evidence of a definite character which would
\n     either directly prove the fact of Benami or
\n     establish      circumstances     unerringly    and
\n     reasonably raising an inference of that fact. The
\n     essence of a benami is the intention of the
\n     party or parties concerned; and not unoften
\n     such intention is shrouded in a thick veil which
\n     cannot be easily pierced through. But such
\n     difficulties do not relieve the person asserting
\n     the transaction to be benami of any part of the
\n     serious onus that rests on him; nor justify the
\n     acceptance of mere conjectures or surmises, as
\n     a substitute for proof. The reason is that a deed
\n     is a solemn document prepared and executed
\n     after considerable deliberation and the person
\n     expressly shown as the purchaser or transferee
\n     in the deed, starts with the initial presumption
\n     in his favour that the apparent state of affairs is
\n     the real state of affairs. Though the question,
\n     whether a particular sale is Benami or not, is
\n     largely one of fact, and for determining this
\n     question, no absolute formulae or acid tests,
\n     uniformally applicable in all situations, can be
\n     laid down; yet in weighing the probabilities and
\n     for gathering the relevant indicia, the courts are
\n     usually guided by these circumstances : (1) the
\n     source from which the purchase money came;
\n     (2) the nature and possession of the property,
\n                                                   Page 7 of 11<\/span>
\n      after the purchase; (3) motive, if any, for giving
\n     the transaction a benami colour; (4) the position
\n     of the parties and the relationship, if any
\n     between the claimant and the alleged
\n     benamidar; (5) the custody of the title-deeds
\n     after the sale and (6) the conduct of the parties
\n     concerned in dealing with the property after the
\n     sale.\n<\/p><\/blockquote>\n
     The above indicia are not exhaustive and their
\n     efficacy varies according to the facts of each
\n     case. Nevertheless No. I, viz. the source whence
\n     the purchase money came, is by far the most
\n     important test for determining whether the sale
\n     standing in the name of one person, is in reality
\n     for the benefit of another.” (Emphasis Supplied)<\/p>\n<\/blockquote>\n
18. After noting leading judicial authorities on the
\npoint, the Hon’ble Supreme Court in the decision
\nreported   as    Valliammal     (D)   by     Lrs.  v
\nSubramaniam & Ors AIR 2004 SC 4187
\nsummarized the law relating to proof of benami
\ntransactions as under:-\n<\/p>\n
     “There is a presumption in law that the person
\n     who purchases the property is the owner of the
\n     same. This presumption can be displaced by
\n     successfully pleading and proving that the
\n     document was taken benami in name of
\n     another person for some reason, and the person
\n     whose name appears in the document is not the
\n     real owner, but only a benami. Heavy burden
\n     lies on the person who pleads that recorded
\n     owner is a benami-holder.” (Emphasis Supplied)<\/p>\n<\/blockquote>\n
19. Having laid down the afore-noted legal position in
\nrespect of proof of benami transactions, the Hon’ble
\nSupreme Court proceeded to note the six
\ncircumstances enumerated in Jaydayal Poddar’ s
\ncase (supra) and concluded that the source from
\nwhere the purchase money came and the motive as
\nto why the property was purchased benami are the
\n                                                  Page 8 of 11<\/span>
\n       most important tests for determining whether the
\n      sale standing in the name of one person, is in reality
\n      for the benefit of another person. The Hon’ble Court
\n      emphasized that a party invoking the plea of benami
\n      in order to prove the real ownership of the property
\n      which is the subject-matter of lis is required to show
\n      that there were valid reasons for purchase of the
\n      property in name of the benamidar and that the
\n      purported real owner had paid the sale consideration
\n      for the purchase of the property.”\n<\/p>\n<\/p>\n
14.        It is obvious that the onus to prove that the mother<\/p>\n
was a mere benamidar was on the appellants.<\/p>\n
15.        The learned Trial Judge has noted, in para 7 of the<\/p>\n
impugned decision, that the appellant No.1 was a toddler aged<\/p>\n
3 years when his grandfather died and had no personal<\/p>\n
knowledge of what was the estate left behind by his<\/p>\n
grandfather.   There being no documentary evidence led to<\/p>\n
show that the source of funds was a source other than that of<\/p>\n
the mother, learned Trial Judge has held that the appellants<\/p>\n
failed to establish that the respondent was a benami owner of<\/p>\n
the property and that the same was acquired from out of the<\/p>\n
ancestral funds.\n<\/p>\n
16.        Holding   that   it   was   a   case   of   a   permissive<\/p>\n
possession akin to a gratuitous licensee, since the mother had<\/p>\n
wanted her son and daughter-in-law to leave the house,<\/p>\n
                                                             Page 9 of 11<\/span>
\n learned Trial Judge has held that the mother was entitled to a<\/p>\n
decree of possession.\n<\/p>\n
17.        Mesne profits have been awarded to the mother<\/p>\n
@Rs.4000\/- per month with effect from the date the children<\/p>\n
were asked to vacate the suit premises.<\/p>\n
18.        It is urged at the hearing today that there exists an<\/p>\n
award which shows the ancestral funds which were used for the<\/p>\n
acquisition of the property.\n<\/p>\n
19.        Where is that award? We do not know.<\/p>\n
20.        We have gone through the record of the learned<\/p>\n
Trial Judge.   We do not find any award on the record of the<\/p>\n
learned Trial Judge. We have gone through the evidence of the<\/p>\n
appellants. Not a word has been spoken by them about any<\/p>\n
award.\n<\/p>\n
21.        Except for a bald statement made by appellant No.1<\/p>\n
when he entered the witness box that the source of funds is<\/p>\n
ancestral, we find no evidence to sustain the said statement.<\/p>\n
22.        Presumption of law is that he who is the recorded<\/p>\n
owner of a property in a sale deed is presumed to have paid<\/p>\n
the funds for acquiring the same.\n<\/p>\n
23.        There has to be strong and cogent evidence<\/p>\n
                                                      Page 10 of 11<\/span>
\n showing that the source of funds was elsewhere to displace the<\/p>\n
presumption in favour of the registered owner of the property.<\/p>\n
24.          We find no merits in the appeal.       The appeal is<\/p>\n
dismissed.\n<\/p>\n
25.          Costs shall follow.\n<\/p>\n<\/p>\n
                                   PRADEEP NANDRAJOG, J.\n<\/p>\n
                                   J.R. MIDHA, J.\n<\/p>\n
NOVEMBER 06, 2008
\ndharmender<\/p>\n
                                                        Page 11 of 11<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Vijesh Chadha & Anr. vs Rajindra Chadha on 6 November, 2008 Author: Pradeep Nandrajog i.2 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Order: 06.11.2008 + RFA 404\/2007 & CM No.10091\/2007 VIJESH CHADHA & ANR. ….. Appellant Through: Mr.Pramod Ahuja, Adv. versus RAJINDRA CHADHA ….. Respondent Through: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-74901","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nVijesh Chadha & Anr. vs Rajindra Chadha on 6 November, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vijesh-chadha-anr-vs-rajindra-chadha-on-6-november-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vijesh Chadha & Anr. vs Rajindra Chadha on 6 November, 2008 - 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