VINOD KUMAR DHALL versus DHARAMPAL DHALL (DECEASED)THROUGH HIS LRS. & ORS. on 26 April 2018

O R D E R

1. Leave granted.

2. Heard learned counsel for the parties.

3. The defendant is in appeal aggrieved by the judgment anddecree passed by the trial court, as affirmed by the High Court in firstappeal and review applied had also been rejected by the High Court.The plaintiff-respondent, Dharampal Dhall (since deceased), filed a suitfor restoration of possession, mesne profits and for a permanent injunctionwith respect to House No.ED-48, Tagore Garden, New Delhi.

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4. The plaintiff – Dharampal Dhall came with a case that heacquired the leasehold rights on plot admeasuring 149.33 square yardsunder the perpetual lease deed granted by the President of India in hisfavour and registered on 31.01.1966. The plaintiff raised a constructionover the plot and obtained the necessary sanction from the competentFauthority as per the site plan and got installed electricity, water, andsewerage connections in the premises. However, it was stated in theplaint itself that entire family started living in the said house. The marriageof plaintiff, as well as defendants and all sisters, were solemnized fromthe house in question. When the relationship of Defendant No.2- theGsister of the plaintiff, became strained with her husband, she startedliving in the said house along with her daughter. Defendant No.1 forsome time in 1971 had resided out of Delhi. Father of the parties –Kashmiri Lal Dhall died on 10.08.1980, leaving behind several propertiesat Delhi. Defendant No.1 started living separately with effect from the G

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year 1986. He acquired a house at Moti Nagar, New Delhi, and onemore residential accommodation, i.e., GH-1/318, Pashchim Vihar, NewDelhi.

5. It was further averred in the plaint that the mother of the partiesdied in the premises in question in the year 1990. The house remained inthe custody/ possession of the Defendant No.2. At the relevant point oftime, the plaintiff was posted at Bombay. The house was furnished.Furniture of the plaintiff was still lying in the house. Plaintiff came backto Delhi in the year 1993. However, at the same time, Defendant No.2was permitted to occupy the house. Later on, it was found that DefendantNo.1 had also started living in the said house. The plaintiff askeddefendants to vacate the premises. They did not do so. Though, DefendantNo.2 had shifted residence in January 1995. Hence, the suit was filed,after serving notice dated 30.6.1995. Defendant No.1 was ousted fromthe house by the mother in the year 1986. Thus, he had no right in thehouse. The conduct of Defendant No.1 was not proper with the plaintiff.

6. In the written statement filed by Defendant No.1, it wascontended that the suit was not properly valued. The defendant hadbeen occupying the premises since the year 1966. The suit was barredby limitation and was not maintainable. The allotment of the plot wasobtained initially in the name of Kumari Sneh Lata, who was the eldestchild of late Kashmiri Lal Dhall. The father of the parties obtained it inthe year 1963 from the Delhi Development Authority (DDA). The entireamount was paid by late Kashmiri Lal to the DDA. Subsequently,construction was raised in 1965-66 by Kashmiri Lal out of his own money.At that time. Plaintiff was only a student studying at IIT, Kharagpur,West Bengal. The possession of the defendant was in the capacity ofthe owner. The plaintiff had no source of income at the relevant point oftime. No gift deed had been made by any person in plaintiff’s favour.They are four sisters and two brothers, left as legal representatives oflate Shri Kashmiri Lal. The suit was bad for non-joinder of necessaryparties. The plaintiff was, thus, not entitled to any relief.

7. The trial court had decreed the suit. The judgment and decreehad been affirmed by the High Court. Aggrieved thereby, the appellanthas come up in appeals.

8. We have heard learned counsel for the parties at length. Itwas submitted by Mr. Mahabir Singh, learned senior counsel appearing A

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Aon behalf of the appellant that the property was admittedly acquired inthe name of Kumari Sneh Lata. Later on, at the time when her marriagewas performed in the year 1966, the property was transferred in thename of Dharampal. At the time when the property was acquired in thename of Kumari Sneh Lata, in the year 1963, Dharampal, the plaintiffwas a student at IIT, Kharagpur. He had no source of earning. Thus,Bobviously, the money came from father and house was constructed inthe year 1965-66. Thus, the plaintiff had no source of income whichcould have been invested in the house at the relevant point of time. Asper the statement made by the plaintiff, he joined the services in April1966. By that time, the house was already constructed. Thus, it wasCthe property owned by the family. The father had spent the money forconstruction of the house and for allotment of plot and thus it was afamily property. It was used as the residence of the entire family,marriages of the children and the factum of enjoyment clearly indicatedthat it was not the property exclusively owned by the plaintiff. It was the family property even as per the case set up in the plaint as well asDthe vital admissions made by the plaintiff in his deposition.

9. Mr. E.C. Agrawala, learned counsel appearing on behalf of therespondents, has submitted that the property, in fact, was acquired byKumari Sneh Lata, out of her earning, she was the teacher. It was alsosubmitted that a letter for change in the name was issued at her addressEof school where she was serving. Thus, Kumari Sneh Lata had acquiredthe plot from DDA out of her own earning. Thus, it could be said to bethe family property got allotted by father Kashmiri Lal Dhall. Thus, itwas open to Kumari Sneh Lata to give it to the plaintiff. Thus, it wouldnot become the family property. Though it was occupied by the family,Ffrom time to time the plaintiff used to come and reside therein. He hadpermitted Defendant No.2 to reside only due to the fact that herrelationship with husband was strained and Defendant No.1 was oustedby the mother in 1986. He had obtained two other properties in differentlocalities at Delhi, i.e., Moti Nagar, New Delhi and Pashchim Vihar, New Delhi. He had reoccupied the property in question behind the backGof the plaintiff in the year 1995-1996. Thus, the plaintiff was entitled torestoration of possession of the property and mesne profit. Both theCourts have concurrently found the fact that the plaintiff was the owner.It was purely the finding of fact and no case for interference in theappeals by this Court was made out .

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10. The learned counsel for the appellant had relied upon thedecision in Surendra Kumar v. Phoolchand (Dead) Through Lrs. &Anr. (1996) 2 SCC 491 in which this Court had laid down that there is nopresumption that a family, because it is joint, possessed the joint propertyand therefore the person asserting the property to be joint had to establishthat the family was possessed of some property with the income ofwhich the property could have been acquired. But where it is establishedor admitted that the family which possessed joint property which fromits nature and relative value may have formed sufficient nucleus fromwhich the property in question may have been acquired, the presumptionarises that it was the joint property and the burden shifts to the partyalleging self-acquisition to establish affirmatively that the property wasacquired without the aid of the joint family. When the property waspurchased by Manager of the joint family in the name of the appellantwho was then minor in the absence of material to establish thatconsideration money was paid out of separate funds, it was opined thatthe property was rightly held to be the joint property by the courts below.

11. In Union of India v. Moksh Builders & Financiers Ltd. &Ors. (1977) 1 SCC 60, this Court has observed that where it is assertedthat an assignment in the name of one person is in reality for the benefitof another, the real test is the source whence the consideration came asalso to find out who has been in the enjoyment of the benefits of thetransaction. The case of the appellant must be dealt upon the reasonableprobabilities and legal inferences arising from proved or admitted facts.The burden of proof is not static and may shift during the course of theevidence. Thus, while the burden initially rests on the party who wouldfail if no evidence is led at all after the evidence is recorded, it restsupon the party against whom judgment would be given if no furtherevidence were adduced by either side on the evidence on record. Oncethe evidence has been adduced the case must always be adjudged onthe evidence led by the parties. This Court has laid down thus:

“15. It is nobody’s case that the sale of the house to defendant 2was fictitious and that the title of the transferor was not intendedto pass. What we have to examine is whether the title, on the saleof the house in December 1946, was transferred to defendant 3,who was the real purchaser, and not to defendant 2, who wasonly the ostensible transferee and was no more than a “benamidar”.It has been held in Gangadara Ayyar and Ors. v. SubramaniaSastrigal and Ors. AIR 1949 FC 88, that AB

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“in a case where it is asserted that an assignment in the nameof one person is in reality for the benefit of another, the realtest is the source whence the consideration came.”

It is also necessary to examine in such cases who actually haveenjoyed the benefits of the transfer. Both these tests were appliedby this Court in Meenakshi Mills, Madurai v. The Commissionerof Income-Tax Madras. [1955] S.C.R. 691. It is, therefore,necessary in the present case, to find out the source of theconsideration for the transfer, as also to find out who has been inthe enjoyment of the benefits of the transaction. It is equally wellsettled that, although the onus of establishing that a transaction is‘benami’ is on the plaintiff.

“where it is not possible to obtain evidence which conclusivelyestablishes or rebuts the allegation, the case must be dealt withon reasonable probabilities and legal inferences arising fromproved or admitted facts.”

16. The burden of proof is, however not static, and may shiftduring the course of the evidence. Thus while the burden initiallyrests on the party who would fail if no evidence is led at all afterthe evidence is recorded, it rests upon the party against whomjudgment would be given if no further evidence were adduced byeither side i.e. on the(evidence on record. As has been held bythis Court in Kalwa Devadattam and Ors. v. The Union of Indiaand Ors. [1964] 3 SCR 191 that where evidence has been led bythe contesting parties on the question in issue, abstractconsiderations of onus and out of place, and the truth of otherwise;of the case must always be adjudged on the evidence led by theparties. This will be so if the court finds that there is no difficultyin arriving at a definite conclusion. It is therefore necessary toweigh the evidence in this case and to decide whether, even if itwas assumed that there was no conclusive evidence to establishor rebut the “benami” allegation, what would, on a carefulassessment of the evidence, be a reasonable probability and alegal inference from relevant and admissible evidence.”

12. In Sri Marcel Martins v. M. Printer & Ors. (2012) 5 SCC342 it was held that Benami Transactions (Prohibition) Act, 1988 (forshort, “the Act”) would apply only in case property was held benami. In VINOD KUMAR DHALL v. DHARAMPAL DHALL(DECEASED)THROUGH HIS LRS.

case Section 4(3) is applicable it could not be said that property was heldbenami as such the provision of the Act would not apply.

13. Section 2(a) of Act defined ‘benami transactions’ as under:

“2. Definitions- In this Act, unless the context otherwise requires,—

(a) benami transaction means any transaction in which propertyis transferred to one person for a consideration paid or providedby another person; (b) .....”

Section 4 of the Act is reproduced as under:

“4. Prohibition of the right to recover property held benami-

(1) No suit, claim or action to enforce any right in respect of anyproperty held benami against the person in whose name theproperty is held or against any other person shall lie by or onbehalf of a person claiming to be the real owner of such property.

(2) No defence based on any right in respect of any property heldbenami, whether against the person in whose name the propertyis held or against any other person, shall be allowed in any suit,claim or action by or on behalf of a person claiming to be the realowner of such property.

(3) Nothing in this section shall apply,—

(a) where the person in whose name the property is held is acoparcener in a Hindu undivided family and the property is heldfor the benefit of the coparceners in the family; or (b) where the person in whose name the property is held is atrustee or other person standing in a fiduciary capacity, and theproperty is held for the benefit of another person for whom he isa trustee or towards whom he stands in such capacity.

(emphasis supplied)

The bare reading of the aforesaid provision contained in Section4(3) of the Act makes it clear that where a person in whose name aproperty is held as coparcener in a Hindu Undivided Family and theproperty is held for the benefits of the coparcener in the property,provisions of Section 4 containing prohibition of the right to recover the A

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Aproperty held benami would not be applicable. The bar of the Act is notapplicable to a transaction as contained in section 4(3) (a) and (b). If theproperty is held in fiduciary capacity or is held as a trustee for the benefitsof another person for whom he is a trustee or towards whom he standsin such capacity. Thus, the provision of Act could not be said to beapplicable in the instant case.B

14. In Vathsala Manickavasagam & Ors. v. N. Ganesan &Anr. (2013) 9 SCC 152, this Court considered the question whether theproperty was held benami or was joint family property. Where therewas a tacit admission that the suit property was purchased by his fatherin his name for which he was not responsible, it was held to be jointCfamily property.

15. After hearing learned counsel for the parties, considering theaforesaid legal position, we are of the considered opinion that the appealsdeserve to be allowed. Firstly, the plaintiff has not come up with thecase that the property was acquired in the name of Kumari Sneh Lata inDthe year 1963 and it was she who had spent the money for getting theland allotted from DDA and in the construction of the house. No casehas been set up in the plaint to show that Kumari Sneh Lata had spentthe money in the construction of the house. He has suppressed the factof allotment in the name of Kumari Sneh Lata. On the contrary, it hadEbeen admitted in the plaint itself that family started residing in the premisesright from the beginning. In paragraphs 4 and 5, following is the pleadingmade by the plaintiff:

“4. That on completion of the house all family member includingdefendant started living in the aforesaid house, the marriage ofFplaintiff as well as the defendant and all sister were solemnizedfrom the house in dispute.

5. That the relation between the defendant No.2 and her husbandbecame strain consequently she was been given shelter in thepremises in dispute by the plaintiff.”

G16. It is apparent that the entire family was residing in the housein question right from the beginning and the marriages of the plaintiff aswell as the defendants and all other sisters were solemnized in the housein question. It is apparent that Defendant No.2 was also residing in thehouse continuously right from the beginning and also the mother and shehad also died in the house in question, as per the case set up by theH

plaintiff in the year 1990. Thereafter, the house remained in occupationof the family members, is also apparent. On the contrary, there isadmission made by the plaintiff that he never resided in the house. Thefollowing is the relevant portion of the deposition of the plaintiff set outhereunder:

“It is correct that I never remained in the house in dispute sinceits construction. It is incorrect to say that after completion of thehouse, my parents and all the four sisters including defendant No.2and brother defendant No.1 not started living with me at the housein dispute.”

From the aforesaid statement, it is clear that the plaintiff neverresided in the house and was not in possession and enjoyment of thehouse at any point in time.

17. Apart from that, when we come to the source of money forthe purpose of purchase of plot, admittedly, the plaintiff was a studentand he was admitted in the year 1961 at IIT, Kharagpur. At the timewhen the land was allotted in the name of Kumari Sneh Lata, he wasstill a student and he had no source of income at the relevant time in1963 or in January 1966, when the allotment was changed in his nameowing to the marriage of Kumari Sneh Lata. Thus, obviously, it wasKashmiri Lal who had spent the money in getting the land allotted andalso had raised the construction in the year 1965-66. Though the plaintiffhas stated that the construction was made sometime in the year 1966,his version cannot be said to be reliable. The plaintiff was silent in theplaint when the construction was raised. The defendant has come upwith a specific case that the construction was raised in the year 1965-66and that is reliable. Apart from that even if construction was made in1966 the plaintiff had admitted that he obtained employment only in April1966 and when the house was constructed in 1966, the plaintiff was nothaving enough earning so as to invest in the house or to purchase theplot in 1963. He was not even in a position to say his salary was Rs.400or not. It was obviously owing to the marriage of Kumari Sneh Latathat the plot was transferred in the name of Dharampal, who happens tobe the elder son of Kashmiri Lal. Thus, apparently no money was paidby Dharampal for allotment of the land to the DDA and obviously, it waspaid in 1963 by Kashmiri Lal. The money was also spent in constructionby the father Kashmiri Lal. Occupation and enjoyment of the housewere with the entire family right from the beginning and till today the A

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Afamily is residing in the house. Apart from that, the plaintiff has admittedthat when he came to Delhi on posting at All India Institute of MedicalSciences, he started living in the rented accommodation, as there was apaucity of accommodation for his stay in the house in question. Thus, allthe facts and circumstances indicate that it was a family property andnot the exclusive property of the plaintiff – Dharampal. Thus, the CourtsBbelow have acted not only perversely but in a most arbitrary and illegalmanner, while accepting the ipse dixit of the plaintiff and in decreeingthe suit. Such finding of facts which are impermissible and perversecannot be said to be binding. The legal inferences from admitted factshave not been correctly drawn.

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18. Merely the fact that house tax receipt, electricity and waterbills and other documents are in the name of Dharampal would carry thecase no further, as it was the father who got the name changed of KumariSneh Lata in question in the name of Dharampal. The receipts wereonly to be issued in the name of the recorded owner, but DharampalDnever resided in the house as he was in service out of Delhi, obviously,the amountwas paid by family, not by Late Dharampal. Thus, we findthat no benefit could have been derived from the aforesaid documents.

19. In view of the aforesaid, we have no hesitation in allowing theappeals and dismiss the suit filed by the plaintiff-respondents. Thus, weEorder accordingly. No order as to costs. Pending application, if any,shall stand disposed of.

Kalpana K. Tripathy

Appeals allowed.

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