SMT. P. LEELAVATHI (D) BY LRS versus V. SHANKARNARAYANA RAO (D) BY LRS on 9 April 2019

[2019] 6 S.C.R. 910

SUPREME COURT REPORTS

[2019] 6 S.C.R.

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SMT. P. LEELAVATHI (D) BY LRS

v.

V. SHANKARNARAYANA RAO (D) BY LRS

(Civil Appeal No. 1099 of 2008)

BAPRIL 09, 2019

[L. NAGESWARA RAO AND M. R. SHAH, JJ.]

Suit – Partition – Appellant-original plaintiff claimed 1/4thshare in all the scheduled properties of her late father – Plaintiffalleged that defendants-her brothers refused to give her 1/4[th] shareC– Plaintiff filed suit for partition – Trial court dismissed the suit byholding that the suit schedule properties were not the self-acquiredproperties of father of the parties and same were the properties ofdefendants Nos.1 to 3; the bank deposits mentioned in schedule IIwere also the personal properties of defendant Nos.1 to 3 – HighDCourt vide judgment & order dated 26.02.1999 set aside thejudgment of the trial court and held that though the properties werein the names of the original defendants, the transactions betweenfather and defendants were benami in nature – Supreme Courtremitted the matter back to the High Court for reconsideration –Thereafter, on remand, the High Court confirmed the judgment ofEthe trial court and held properties were not benami in nature –Appellant contended that the suit properties acquired in the namesof defendant Nos.1 to 3 were benami in nature – On appeal, held:Supreme Court in catena of decisions has held that source of moneycan never be the sole consideration and it is merely one of theFrelevant considerations, but not determinative in character – In theinstant case, the High Court rightly came to the conclusion thatplaintiff failed to prove that the purchase of the suit properties inthe names of defendant Nos.1 to 3 were benami in nature – Plaintiffhad failed to establish and prove the intention of the father topurchase the suit properties for and on behalf of the family, whichGwere purchased in the names of the defendant Nos.1 to 3 – Latefather of plaintiff had also assisted her and her husband to purchasea residential house – Similarly, the intention of the late father wasto give the financial assistance to defendant Nos.1 to 3-sons andhelped them in purchase of the properties – The transaction ofH

purchase of the suit properties cannot be said to be benami in nature– Therefore, the plaintiff has no right to claim 1/4[th]share in the suitproperties – Benami Transactions (Prohibition of Right to RecoverProperty) Ordinance, 1988 – Benami Transactions (Prohibition) Act,1988.

Dismissing the appeal, the Court

Conclusion

HELD: Applying the law laid down by Supreme Court inthe various decisions to the facts of the case on hand, this Courtis of the opinion that the High Court has rightly come to theconclusion that the plaintiff has failed to prove that the purchaseof the suit properties – Item Nos. I(a) to I(c) in the names ofdefendant Nos. 1 to 3 were benami in nature. It is true that, atthe time of purchase of the suit properties – Item Nos. I(a) toI(c), some financial assistance was given by their late father.However, as observed by this Court in the various decisions,that cannot be the sole determinative factor/circumstance to holdthe transaction as benami in nature. The plaintiff has miserablyfailed to establish and prove the intention of the father to purchasethe suit properties for and on behalf of the family, which werepurchased in the names of defendant Nos. 1 to 3. It is requiredto be noted that, as such, the plaintiff – daughter has not steppedinto the witness box and that the evidence on behalf of the plaintiffhas been given by her husband who, as such, can be said to be anoutsider, so far as the joint family is concerned. Apart from that,it has come on record that the plaintiff and her husband weremaintained by late father of plaintiff. The financial assistance wasalso given to the plaintiff and her husband to purchase theresidential house at Bangalore. Father of plaintiff, therefore,provided a shelter to his daughter and, as observed herein above,also gave the financial assistance to purchase the residential houseat Bangalore. It has also come on record that their late fathereven purchased the share certificates and his daughter-originalplaintiff was also given certain number of shares. Therefore,considering the aforesaid facts and circumstances of the case,their late father also must have given the financial assistance todefendant Nos. 1 to 3 – sons and helped them in purchase of theproperties. Therefore, the intention of their late father to givethe financial assistance to purchase the properties in the names A

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912SUPREME COURT REPORTS

[2019] 6 S.C.R.

Aof defendant Nos. 1 to 3 cannot be said to be to purchase theproperties for himself and/or his family members and, therefore,as rightly observed by the High Court, the transactions ofpurchase of the suit properties – Item Nos. I(a) to I(c) in thenames of the defendant Nos. 1 to 3 cannot be said to be benamiin nature. The intention of their late father was to provide theBfinancial assistance for the welfare of his sons and not beyondthat. None of the other ingredients to establish the transactionsas benami transactions, as held by this Court in the aforesaiddecisions, are satisfied, except that some financial assistance wasprovided by their late father. In the facts and circumstances ofCthe case and considering the evidence on record, the purchaseof the suit properties – Item Nos. I(a) to I(c) in the names ofdefendant Nos. 1 to 3 cannot be said to be benami transactionsand, therefore, as rightly observed and held by the trial Courtand confirmed by the High Court, the plaintiff has no right toclaim 1/4[th] share in the suit properties – Item Nos. I(a) to I(c)Dwhich were purchased by the sons in their names by separatesale deeds. [Para 10][923-C-H; 924-A-D]

Binapani Paul v. Pratima Ghosh (2007) 6 SCC 100 :[2007] 5 SCR 946; Jaydayal Poddar v. Bibi Hazra(Mst.) (1974) 1 SCC 3 : [1974] 1 SCR 70; ValliammalEv. Subramaniam (2004) 7 SCC 233 : [2004] 3 Suppl.SCR 966 – relied on.

Thakur Bhim Singh v. Thakur Kan Singh (1980) 3 SCC72: [1980] 2 SCR 628 – referred to.

Case Law ReferenceF

2008.

From the Judgment and Order dated 06.09.2007 of the High Courtof Karnataka at Bangalore in RFA No.220 of 1991.

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SMT. P. LEELAVATHI (D) BY LRS v. V. SHANKARNARAYANARAO (D) BY LRS. [M.R. SHAH, J.]

Basava Prabhu S. Patil, Sr. Adv., Ms. Rachitha Herimath, ChinmayDesh Pande, Geet Ahuja, V.N. Raghupathy, Advs. for the Appellants.

G. V. Chandrashekar, N. K. Verma, Ms. Ansha Verma, Ms. AnjanaChandrashekar, Advs. for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court of Karnataka at Bangalore dated06.09.2007 in RFA No. 220 of 1991, by which the High Court hasdismissed the said First appeal preferred by the original plaintiff Smt. P.Leelavathi (now deceased and represented through her legal heirs) andhas confirmed the judgment and decree passed by the learned trial Courtdismissing the suit, the legal heirs of the original plaintiff Smt. P. Leelavathihave preferred the present appeal.

2. The facts leading to the present appeal in nutshell are as under:

That Smt. P. Leelavathi instituted Original Suit No. 1248 of 1980in the Court of the XIV Additional City Civil Judge at Bangalore againstthe original defendants – V. Shankaranarayan Rao (now deceased andrepresented through his legal heirs) and two others for partition and forrecovery of 1/4[th] share of the plaintiff in the plaint scheduled properties.That the original plaintiff Smt. P. Leelavathi and the original defendantsare the sister and brothers and the daughter and sons of Late G. VenkataRao, who died on 08.10.1974.

2.1 It was the case on behalf of the original plaintiff that herfather Late G. Venkata Rao was an Estate Agent and he was doingmoney lending business in his name and also in the names of his sonsand he was purchasing properties in the names of his sons, though hisfather was funding those properties. According to the plaintiff, at thetime of his death, G. Venkata Rao was in possession of a large estatecomprising of immoveable properties, bank deposits etc. shown in theplaint schedule. It was the case on behalf of the original plaintiff that thesuit schedule properties were as such joint family properties and/or theywere purchased in fact by their late father G. Venkata Rao and the samewas funded by their father. That, it was the case on behalf of the originalplaintiff that the plaintiff was entitled to 1/4[th] share in all the said properties

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Abelonging to her father. It was the case on behalf of the original plaintiffthat as the defendants refused to give her 1/4[th] share and gave an evasivereply, which prompted the plaintiff to demand in writing her share andfor early settlement. That, thereafter she got a notice dated 18.07.1975issued demanding partition and amicable settlement. But the defendantshave failed to settle the matter. Therefore, the plaintiff instituted theBaforesaid suit for partition and for recovery of her 1/4[th] share in theplaint schedule properties.

3. That the original defendants resisted the suit by filing the writtenstatement. It was the case on behalf of the original defendants that theplaint schedule properties are exclusively owned by the defendants inCtheir individual rights. Item No. 1 of the plaint schedule i.e., premisesNo. 32/1, Aga Abbas Ali Road is the personal property of defendant No.3. Item (b) of schedule 1 belongs to defendant No. 2 and Item (c)belongs to defendant No. 1. These properties never belonged to theirdeceased father G. Venkata Rao and they do not form part of his estate.DComing to Item No. II, the three fixed deposits were the personalproperties of each of the defendants. There was a joint saving bankaccount in the Syndicate Bank, Cantonment Branch in the joint namesof the deceased and defendant No. 2. There is a small amount still lyingin the said account. At any rate, there is no outstanding of Rs.10,000/- inthe said account. Regarding Item No. III, there were no debts due andEpayable to the deceased. 939 shares were in the joint names of thedeceased and the plaintiff. 840 shares were in the names of the deceasedand defendant No. 1. Another 840 shares were in the names of thedeceased and defendant No. 2. 949 shares were in the names of thedeceased and defendant No. 3. The plaintiff had major share whichFwere purchased by the deceased in the names of himself and the plaintiff.Late G. Venkata Rao was a head clerk attached to an advocate’s officein Civil Station, Bangalore. On retirement, the deceased indulged in andacted as an estate agent in a most casual manner. At any rate, he wasnot doing money-lending business nor did he purchase properties as issought to be made out in the plaint. The deceased was at no point ofGtime in affluent circumstances. The solvency of the deceased was at avery low ebb at the time of his death and he left no jewellery. Even thefurniture available at Premises No. 138, Aga Abbas Ali Road, Bangalore SMT. P. LEELAVATHI (D) BY LRS v. V. SHANKARNARAYANARAO (D) BY LRS. [M. R. SHAH, J.]

was not worth mentioning inasmuch as the pieces left could be countedon finger tips. The value of the entire hold effects would not exceedRs.400.00. Only Items 10, 12, 19, 20, 21 and 22 out of the said premiseswere valuable articles of the deceased. The other items never existedat any point of time. The plaintiff had the best of things from her fatherwhile he was alive. She was the recipient of favours shown by herfather from time to time. The deceased stretched his generosity even tohis son-in-law, the husband of the plaintiff. The deceased in fact emptiedhis resources at the calls of her daughter and her husband. The son-in-law also collected cash from the deceased. The plaintiff and her husbandare also due in a sum of Rs.3000/- borrowed by them under a pro-notedated 11.06.1966 from the deceased and defendant No. 3. They arealso due a sum of Rs.1500/- under another pro-note dated 29.11.1966payable to the deceased. The above amounts also carry interest atstipulated rates. The defendants serve their right to recover the saidamounts through proper legal remedies. The plaintiff constructed ahouse bearing No. 150, Veerapillai Street with the said and financialassistance of her father. The plaintiff in active connivance with herhusband ransacked the house No. 138, Aga Abbas Ali Road during theabsence of the deceased and defendant No. 2 who had gone to Tirupathiand Madras. The plaintiff had made wrongful gains about this timesomewhere in 1963. The plaintiff stayed with her husband at Chicmagaluronly for about three months after her marriage. Thereafter she camewith her husband to Bangalore and stayed with her father for nearly sixyears. The plaintiff is enjoying the special privilege and she has benefitsbestowed on her, her husband and her children almost regularly. Inaddition to her father, defendant No. 2 was also looking after the needsof the plaintiff’s family at considerable expenses. All the defendantsare residing in rented houses. The claim of the plaintiff in respect ofItem A to C in the plaint schedule is not tenable, in view of provisions ofSection 2 of Benami Transactions (Prohibition of Right to RecoverProperty) Ordinance, 1988, the plaintiff has no cause of action and norelief can be given to her. The suit is therefore liable to be dismissedwith costs.

3.1 That the trial Court framed the following issues:

1) Whether the plaintiff proves that the suit schedule immovableand movable properties as described in Schedule I to V are theself-acquire properties?

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A2) Whether the suit schedule I(a) vacant site bearing No. 32/1,Aga Abbas Ali Road, Civil Station, Bangalore, is the self acquiredproperty of defendant No. 3?

3) Whether the suit schedule I(b) vacant site bearing No. 32/1,Aga Abbas Ali Road, Civil Station. Bangalore, is the self acquiredBproperty of defendant No. 2?

4) Whether the suit schedule I(c) property is the self acquiredproperty of defendant No. 1?

5) Whether the defendants prove that the suit schedule II Bankdeposits are the personal properties of each of the defendants?

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6) Whether the defendants prove that there were furniturementioned as Items 10, 12, 19, 20, 21 and 22 of suit Schedule Vin page-5 of the plaint, hardly worth Rs.400/- in premises No.138/A (New No. 6) Armstrong Road, Civil Station, Bangalore?

D7) Whether the plaintiff is entitled to partition and possession ofher 1/4[th] share in the suit schedule properties?

8) Whether there is cause of action for the suit?

9) To what reliefs is the plaintiff entitled?

Additional Issue: Is the claim of the plaintiff barred by Section 2 ofE the Benami Transaction (Prohibition of Right to Recover Property) Ordinance, 1988 as alleged?

3.2 That the learned trial Court dismissed the suit by holding thatthe suit schedule properties are not the self-acquired properties of LateG. Venkata Rao; suit Item Nos. I(a), I(b) and I(c) are the properties ofForiginal defendant Nos. 1 to 3; the bank deposits mentioned in ScheduledII of the plaint are the personal properties of defendant Nos. 1 to 3. Thelearned trial Court further observed and held that in respect of moveableproperties mentioned in Schedule V as suit Item Nos. 10, 12, 19, 20, 21and 22, the plaintiff is entitled for 1/4[th] share and therefore the learnedGtrial Court granted the decree for recovery of 1/4[th] share to the plaintiffwhich was hardly worth Rs.400/- (sic) available in the premises bearingNo. 138/A (New No. 6) Armstrong Road, Civil Station, Bangalore.

4. Feeling aggrieved and dissatisfied with the judgment and decreepassed by the learned trial Court dismissing the suit and holding that the H

suit schedule properties were not the self-acquired properties of Late G.Venkata Rao and they were the properties of defendant Nos. 1 to 3, theoriginal plaintiff preferred an appeal before the High Court. The HighCourt vide judgment and order dated 26.02.1999 set aside the judgmentand decree passed by the learned trial Court holding that all though theproperties were in the names of the original defendants, the transactions,in question, were benami in nature and in that view of the matter, theplaintiff had inherited 1/4[th] share therein.

4.1 Feeling aggrieved and dissatisfied with the judgment and orderpassed by the High Court dated 26.02.1999 allowing the appeal andquashing and setting aside the judgment and decree passed by the learnedtrial Court and, consequently decreeing the suit and holding that theplaintiff had inherited 1/4[th] share in the said schedule properties, thelegal representatives of the original defendants approached this Courtby way of Civil Appeal No. 7117 of 2000.

4.2 That by judgment and order dated 11.05.2007, this Court allowedthe appeal and remitted the matter back to the High Court observingthat the High Court has not properly appreciated and/or consideredwhether the transaction in question is benami or not.

4.3 That thereafter, on remand, the High Court has by the impugnedjudgment and order dismissed the appeal confirming the judgment anddecree passed by the learned trial Court dismissing the suit, by specificallyobserving that the purchase/transaction in favour of defendant Nos. 1 to3 with respect to the suit schedule properties were not the benamitransactions and that they were the self-acquired properties of defendantNos. 1 to 3 and, therefore, the plaintiff is not entitled to any share in thesuit schedule properties. The High Court has further observed and heldthat the provisions of the Benami Transactions (Prohibition) Act, 1988are retroactive in application.

5. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court in dismissing the appeal and confirmingthe judgment and decree passed by the trial Court dismissing the suit,the original plaintiff (now the deceased and represented through thelegal heirs) has preferred the present appeal.

6. Learned counsel appearing on behalf of the appellants hasvehemently submitted that, in the facts and circumstances of the case, A

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Athe High Court has committed a grave error in dismissing the appeal andconfirming the judgment and decree passed by the trial Court dismissingthe suit.

6.1 It is vehemently submitted by the learned counsel appearingon behalf of the appellants that the Courts below have materially erredBin not accepting the case of the plaintiff that the suit properties acquiredin the names of defendant Nos. 1 to 3 were benami in nature.

6.2 It is submitted by the learned counsel appearing on behalf ofthe appellant that the findings recorded by the learned trial Court andconfirmed by the High Court that the suit properties acquired in theCnames of defendant Nos. 1 to 3 were not benami in nature, but were theself-acquired properties of defendant Nos. 1 to 3 are contrary to theevidence on record.

6.3 It is submitted by the learned counsel appearing on behalf ofthe appellants that it has come in evidence that the sale considerationDwas paid by the father of the plaintiff and defendant Nos. 1 to 3. It issubmitted that DW1 admitted that he had borrowed a sum of Rs.1,030/- from his father Late G. Venkata Rao and that Late G. Venkata Raosent a demand draft for a sum of Rs.1,030/- directly to the Tamil NaduHousing Board. It is submitted that even the entire consideration foracquisition of suit properties - Item Nos. 1(a) to 1(c) were paid by LateEG. Venkata Rao.

6.4 It is further submitted by the learned counsel appearing onbehalf of the appellant that the High Court having concluded that thepurchase money of suit properties -Item Nos. 1(a) to 1(c) came fromLate G.Venkata Rao, thereafter, the High Court is not justified inFconcluding that the plaintiff was required to give further evidence toestablish that the suit properties were acquired for the benefit ofdefendants or Late G. Venkata Rao had other reasons to acquire the suitproperties in the names of his sons – original defendant Nos. 1 to 3.Relying upon the decision of this Court in Thakur Bhim Singh v. ThakurGKan Singh (1980) 3 SCC 72, it is vehemently submitted by the learnedcounsel appearing on behalf of the appellant that, as held by this Court inthe aforesaid decision, if it is proved that the purchase money camefrom a person other than the person in whose favour the property wastransferred, the purchase is prima facie assumed to be for the benefitof person who supplied the purchase money, unless there is an evidenceHto the contrary.

6.5 It is further submitted by the learned counsel appearing onbehalf of the appellant that both the Courts below have materially erredin observing and consequently holding that the plaintiff was not a memberof the joint family.

6.6 Making the above submissions, it is prayed to allow the presentappeal and quash and set aside the judgment and decree passed by boththe Courts below and consequently to decree the suit.

7. Shri G. V. Chandrashekar, learned advocate appearing on behalfof the original defendants, while opposing the present appeal, hasvehemently submitted that the finding recording by the learned trial Court,confirmed by the High Court that the suit properties – Item Nos. I(a) toI(c) were not benami transactions, are on appreciation of evidence. It issubmitted that, as rightly observed by the High Court, merely becausesome financial assistance might have been given by the father to thedefendants while purchasing the suit properties, the same would notbecome a benami transaction, unless the contrary intention is establishedand proved.

7.1 It is vehemently submitted by the learned counsel appearingon behalf of the defendants that, in the present case, all the three suitproperties were purchased by defendant Nos. 1 to 3 by registered saledeeds and some financial assistance was given by the father Late G.Venkata Rao, which was given to the plaintiff also. It is submitted that,in the present case, it has come on record that the plaintiff married withPW-1 in the year 1954; the marriage of the plaintiff was performed byLate G. Venkata Rao; and that after the marriage of the plaintiff, Late G.Venkata Rao and defendant Nos. 1 to 3 were living together. It issubmitted that it has also come on record that Late G. Venkata Raoprovided the financial assistance to the plaintiff to acquire the housebearing No. 150, Veerapillai Street, Civil Station, Bangalore. It issubmitted that even the evidence on record would disclose that after themarriage, the plaintiff and her husband were maintained by her fatherfor a period of 10 years. It is submitted that, considering the aforesaidcircumstances, as rightly observed by the High Court, the intention ofLate G. Venkata Rao in providing financial assistance to his sons foracquisition of properties was to provide shelter to his sons and, therefore,the acquisition of the suit properties – Items I(a) to I(c) by defendants,out of the financial assistance provided by their father Late G. VenkataRao, did not involve any benami transaction.

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A7.2 It is further submitted on behalf of the defendants that, assuch, the provisions of the Benami Transactions (Prohibition) Act wouldnot be applicable retrospectively. It is vehemently submitted by thelearned counsel appearing on behalf of the original defendants that, asobserved and held by this Court in the case of Binapani Paul v. PratimaGhosh (2007) 6 SCC 100, the burden of proving of benami nature ofBtransaction lies on the person who alleges the transaction to be a benami.It is submitted that in the aforesaid decision, it is further observed andheld by this Court that the source of money can never be the soleconsideration and it is merely one of the relevant considerations, but notdeterminative in character. It is submitted that, in the present case, theCplaintiff has failed to establish and prove that the purchase of the properties– Item Nos. I(a) to 1(c) were benami in nature and/or that the intentionof Late G. Venkata Rao was to purchase the suit properties for and onbehalf of the family, but were purchased in the names of defendant Nos.1 to 3. It is submitted that, therefore, in the facts and circumstances ofthe case, the High Court has rightly dismissed the appeal and has rightlyDconfirmed the judgment and decree passed by the learned trial Courtdismissing the suit, by specifically observing and holding that the suitproperties – Items I(a) to I(c) were not benami in nature. Therefore, itis prayed to dismiss the present appeal.

8. Heard learned counsel appearing on behalf of the respectiveEparties at length. In the present case, the original plaintiff instituted thesuit claiming 1/4[th] share in the suit properties, including the suit properties– Item Nos. I(a) to I(c). Admittedly, the suit properties were purchasedby defendant Nos. 1 to 3 respectively. However, it was the case onbehalf of the plaintiff that the purchase of the suit properties was benamiFtransaction as the sale consideration was paid by their father Late G.Venkata Rao. The aforesaid is not accepted by the High Court and theHigh Court has observed and held that the plaintiff has failed to establishand prove by leading cogent evidence that the intention of Late G. VenkataRao to purchase the suit properties in the names of defendant Nos. 1 to3 was to purchase for and on behalf of the family and, therefore, theGtransaction cannot be said to be benami in nature.

8.1 Therefore, the short question that is posed for considerationof this Court is, whether in the facts and circumstances of the case andmerely because some financial assistance has been given by the fatherto the sons to purchase the properties, can the transactions be said toHbenami in nature?

9. While considering the aforesaid question, few decisions of thisCourt on the benami transactions/transactions of benami nature, arerequired to be referred to:

9.1 In the case of Thakur Bhim Singh (supra), it is observedand held by this Court that while considering a particular transaction asbenami, the intention of the person who contributed the purchase moneyis determinative of the nature of transaction. It is further observed bythis Court as to what the intention of the person who contributed thepurchase money, has to be decided on the basis of the surroundingcircumstance; the relationship of the parties; the motives governing theiraction in bringing about the transaction and their subsequent conductetc. In the aforesaid decision, this Court considered the earlier decisionof this Court in Jaydayal Poddar v. Bibi Hazra (Mst.) (1974) 1 SCC3, more particularly para 6, and thereafter summed up in para 17 andpara 18. Paras 17 and 18 of that judgment are as under:

“17. The principle enunciated by Lord Macmillan in the case ofManmohan Das [AIR 1931 PC 175 : 134 IC 66 9 : 1931 ALJ550] has been followed by this Court in Jaydayal Poddar v. BibiHazra (Mst) [(1974) 1 SCC 3 : (1974) 2 SCR 90] where Sarkaria, J., observed thus: (SCC p. 6, para 6)

“It is well-settled that the burden of proving that a particularsale is benami and the apparent purchaser is not the real owner,always rests on the person asserting it to be so. This burdenhas to be strictly discharged by adducing legal evidence of adefinite character which would either directly prove the factof benami or establish circumstances unerringly and reasonablyraising an inference of that fact. The essence of a benami isthe intention of the party or parties concerned; and not unoften,such intention is shrouded in a thick veil which cannot be easilypierced through. But such difficulties do not relieve the personasserting the transaction to be benami of any part of the seriousonus that rests on him; nor justify the acceptance of mereconjectures or surmises, as a substitute for proof. The reasonis that a deed is a solemn document prepared and executedafter considerable deliberation, and the person expressly shownas the purchaser or transferee in the deed, starts with the initialpresumption in his favour that the apparent state of affairs isthe real state of affairs. Though the question whether a A

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particular sale is benami or not, is largely one of fact, and fordetermining this question, no absolute formulae or acid tests,uniformly applicable in all situations, can be laid down; yet inweighing the probabilities and for gathering the relevant indicia,the courts are usually guided by these circumstances:(1) thesource from which the purchase money came; (2) the natureand possession of the property, after the purchase; (3) motive,if any, for giving the transaction a benami colour; (4) the positionof the parties and the relationship if any, between the claimantand the alleged benamidar; (5) the custody of the title deedsafter the sale and (6) the conduct of the parties concerned indealing with the property after the sale.”

18. The principle governing the determination of the questionwhether a transfer is a benami transaction or not may be summedup thus: (1) the burden of showing that a transfer is a benamitransaction lies on the person who asserts that it is such atransaction; (2) it is proved that the purchase money came from aperson other than the person in whose favour the property istransferred, the purchase is prima facie assumed to be for thebenefit of the person who supplied the purchase money, unlessthere is evidence to the contrary; (3) the true character of thetransaction is governed by the intention of the person who hascontributed the purchase money and (4) the question as to whathis intention was has to be decided on the basis of the surroundingcircumstances, the relationship of the parties, the motives governingtheir action in bringing about the transaction and their subsequentconduct, etc.”

9.2 In Binapani Paul case (supra), this Court again had anoccasion to consider the nature of benami transactions. After consideringa catena of decisions of this Court on the point, this Court in that judgmentobserved and held that the source of money had never been the soleconsideration. It is merely one of the relevant considerations but notdeterminative in character. This Court ultimately concluded afterconsidering its earlier judgment in the case of Valliammal v.Subramaniam (2004) 7 SCC 233 that while considering whether aparticular transaction is benami in nature, the following six circumstancescan be taken as a guide:

“(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, betweenthe 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 prop-erty after the sale. (Jaydayal Poddar v. Bibi Hazra (supra),SCC p. 7, para6)”

10. Applying the law laid down by this Court in the aforesaiddecisions to the facts of the case on hand, we are of the opinion that theHigh Court has rightly come to the conclusion that the plaintiff has failedto prove that the purchase of the suit properties – Item Nos. I(a) to I(c)in the names of defendant Nos. 1 to 3 were benami in nature. It is truethat, at the time of purchase of the suit properties – Item Nos. I(a) toI(c), some financial assistance was given by Late G. Venkata Rao.However, as observed by this Court in the aforesaid decisions, that cannotbe the sole determinative factor/circumstance to hold the transaction asbenami in nature. The plaintiff has miserably failed to establish andprove the intention of the father to purchase the suit properties for andon behalf of the family, which were purchased in the names of defendantNos. 1 to 3. It is required to be noted that, as such, the plaintiff –daughter has not stepped into the witness box and that the evidence onbehalf of the plaintiff has been given by her husband who, as such, canbe said to be an outsider, so far as the joint family is concerned. Apartfrom that, it has come on record that the plaintiff and her husband weremaintained by Late G. Venkata Rao. The financial assistance was alsogiven to the plaintiff and her husband to purchase the residential houseat Bangalore. Late G. Venkata Rao, therefore, provided a shelter to hisdaughter and, as observed herein above, also gave the financial assistanceto purchase the residential house at Bangalore. It has also come onrecord that Late G. Venkata Rao even purchased the share certificatesand his daughter-original plaintiff was also given certain number of shares.Therefore, considering the aforesaid facts and circumstances of the case,Late G. Venkata Rao also must have given the financial assistance todefendant Nos. 1 to 3 – sons and helped them in purchase of the A

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Aproperties. Therefore, the intention of Late G. Venkata Rao to give thefinancial assistance to purchase the properties in the names of defendantNos. 1 to 3 cannot be said to be to purchase the properties for himselfand/or his family members and, therefore, as rightly observed by theHigh Court, the transactions of purchase of the suit properties – ItemNos. I(a) to I(c) in the names of the defendant Nos. 1 to 3 cannot beBsaid to be benami in nature. The intention of Late G. Venkata Rao wasto provide the financial assistance for the welfare of his sons and notbeyond that. None of the other ingredients to establish the transactionsas benami transactions, as held by this Court in the aforesaid decisions,are satisfied, except that some financial assistance was provided byCLate G. Venkata Rao. In the facts and circumstances of the case andconsidering the evidence on record, the purchase of the suit properties –Item Nos. I(a) to I(c) in the names of defendant Nos. 1 to 3 cannot besaid to be benami transactions and, therefore, as rightly observed andheld by the learned trial Court and confirmed by the High Court, theplaintiff has no right to claim 1/4[th] share in the suit properties – ItemDNos. I(a) to I(c) which were purchased by the sons in their names byseparate sale deeds. We are in complete agreement with the view takenby the High Court.

11. In view of the above and for the reasons stated above, thepresent appeal fails and deserves to be dismissed and is accordinglyEdismissed. No costs.

Ankit Gyan

Appeal dismissed.

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