# Rama Shanker & Ors v. Lala Wajiri Lal

- **Citation:** (2024) 8 ILRA 501
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-07
- **Case number:** Second Appeal No. 1396 of 1979
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rama-shanker-ors-v-lala-wajiri-lal-54583
- **Pages:** 6

## Headnote

A. Civil Law - Civil Procedure Code,1908 -
Section 100 - Substantial question of law
-
Non-concurrent
finding
-
Benami
transaction - Factors of determination -
Erroneous finding by first appellate court -
Scope of interference - Principle governing
to
declare
a
sale-deed
as
benami
transaction discussed - Held, there was
neither sufficient pleadings nor trustworthy
evidence to hold the transaction as benami.
Inter-se communication between two real
brothers which does not infer anything
regarding
the
transaction
or
any
communication with third party would not
confer owner ship upon Waziri Lal -
Ingredient of real intention of parties is
also absent. Payment of sale consideration
by Waziri Lal is also not proved -
Consequently, the conclusion drawn by
first
appellate
court
declaring
the
transaction as benami is found to be
erroneous on factual and legal platform -
There being no sufficient pleadings and
evidence to hold the sale deed of 1942 as
benami, the first appellate court has erred
in reversing the decree drawn by the trial
court. (Para 16 and 17)

Appeal allowed. (E-1)
List of Cases cited:

## Text

8 All. Rama Shanker & Ors. Vs. Lala Wajiri Lal
501
(2024) 8 ILRA 501
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.08.2024

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Second Appeal No. 1396 of 1979

Rama Shanker & Ors. ...Appellants
Versus
Lala Wajiri Lal ...Respondent

Counsel for the Appellants:
Sri Anil Sharma (Sr. Advocate), Sri R.K.
Shukla

Counsel for the Respondent:
Sri V. Sahai, Sri B. Dayal

A. Civil Law - Civil Procedure Code,1908 -
Section 100 - Substantial question of law
-
Non-concurrent
finding
-
Benami
transaction - Factors of determination -
Erroneous finding by first appellate court -
Scope of interference - Principle governing
to
declare
a
sale-deed
as
benami
transaction discussed - Held, there was
neither sufficient pleadings nor trustworthy
evidence to hold the transaction as benami.
Inter-se communication between two real
brothers which does not infer anything
regarding
the
transaction
or
any
communication with third party would not
confer owner ship upon Waziri Lal -
Ingredient of real intention of parties is
also absent. Payment of sale consideration
by Waziri Lal is also not proved -
Consequently, the conclusion drawn by
first
appellate
court
declaring
the
transaction as benami is found to be
erroneous on factual and legal platform -
There being no sufficient pleadings and
evidence to hold the sale deed of 1942 as
benami, the first appellate court has erred
in reversing the decree drawn by the trial
court. (Para 16 and 17)

Appeal allowed. (E-1)
List of Cases cited:

1. Bhim Singh & anr. Vs Kan Singh; AIR 1980
SC 727

2. V. Shankaranarayana Rao and Ors. Vs
Leelavathy & ors.; AIR 2007 SC 2637

3. Diwakar Sahkari Krishi Samiti Ltd. & ors. Vs
St. of U.P. & ors.; 1988 R.D. 208

(Delivered by Hon'ble Kshitij Shailendra, J.)

1. Summons were duly published in
daily newspaper Amar Ujala in compliance
of order dated 09.12.2022. Compliance
affidavit supported by original newspaper
is on record. Service of notice upon
respondent nos.1/1 and 1/2 is, therefore,
held to be sufficient. No one has filed
vakalatnama on their behalf.

2. Appeal is ripe for final hearing.
The Court, therefore, proceeds to finally
decide the appeal.

3. Heard Sri Anil Sharma, learned
Senior Counsel assisted by Sri Ramesh
Kumar, learned counsel for the defendantappellants and perused the record.

4. The instant second appeal raises a
challenge to the judgment and decree dated
06.04.1979 whereby, the first appellate
court has set aside the judgment of the trial
court and decreed the suit filed by the
plaintiff-respondents
for
recovery
of
possession of immovable property and
damages.

5. The relevant facts of the present
case are that one Kuremal had three sons
namely, Dwarika Prasad, Waziri Lal and
Banke Lal. Dwarika Prasad had a daughter
namely, Kamlawati, who was married to
one Ram Narayan. This couple had three
502 INDIAN LAW REPORTS ALLAHABAD SERIES
sons namely, Rama Shankar, Ravi Shankar
and Rati Shankar. Waziri Lal, i.e. real
brother of Dwarika Prasad, instituted
Original Suit No.602 of 1970 against
Kamlawati and her three sons claiming a
decree for possession and damages in
respect of immovable property described in
the plaint. The basis of the claim was that
there was a sale deed dated 09.07.1942
existing in the name of Dwarika Prasad,
however it was Waziri Lal, who had
actually purchased the property in the name
of Dwarika Prasad and, therefore, plaintiff
Waziri Lal had become owner of the same.

6. The Trial Court, after analyzing
oral and documentary evidence led by the
parties, arrived at a conclusion that plea of
benami transaction could not be established
and, consequently, dismissed the suit.

7. The decree has been reversed by
the first appellate court and the issue no.1,
which is germane to the controversy
involved,
was
decided
against
the
defendant-appellants holding that the sale
deed of 1942 was a benami transaction.
Consequently, the appellate court held
Waziri Lal as true owner of the property
and has drawn the decree against the
defendant-appellants.

8. The instant second appeal was
admitted by order dated 17.05.1979 on the
grounds No.5, 8, 9 and 10 contained in the
memo of appeal. The said grounds are
quoted hereunder :

"5. Because it having been
admitted to Wajiri Lal- plaintiff, that he did
not know, who had written the letters
purported to have been sent by Dwarika
Prasad, Smt. Kamlawati and Sri Ram
Narain to him, the said letters were not
legally proved in this case and the learned
lower appellate Court has wrongly placed
reliance on the same.

8. Because the lower appellate
court has completely misread the evidence
on record to arrive at the conclusion that
the sale deed in favour of Lal Dwarika
Prasad was a Benami transaction.

9. Because the onus to prove that
the property purchased in the name of Lal
Dwarika Prasad was Benami was heavily
on the plaintiff, who having failed to
discharge the same, the finding of the lower
appellate Court is erroneous.

10. Because documents on record
substantially proved without any doubt that
Wajiri Lal himself was not possessed of
any means nor he had any source of
income, from which he could have
purchased the accommodation in dispute,
inasmuch as it was not possible for him
even to provide for the tuition fee for his
son, who had to be taken out from the
School for non-payment of the tuition fee. "

9. The submission of learned Senior
Counsel is that not only necessary pleadings but
also entire evidence led by the plaintiffrespondent was lacking in the sense that it was
not stated in the plaint that sale consideration in
relation to the sale deed of 1942 had been paid
by the plaintiff. It is further contended that as far
as evidence is concerned, the first appellate
court discussed various letters on record and
arrived at a conclusion that since no letter was
written to Dwarika Prasad and one Vidyanand
interacted with Waziri Lal by sending letters, it
would be deemed that Dwarika Prasad was not
the real owner of the property and, therefore,
the transaction was a benami transaction.
Statements of witnesses were also discussed by
the appellate court.

10. Learned Senior Counsel has
placed
reliance
upon
the
following
judgments in support of his contention :
8 All. Rama Shanker & Ors. Vs. Lala Wajiri Lal
503

1. Bhim Singh (dead) by L.R.s
and another v. Kan Singh, AIR 1980
Supreme Court 727.

2. V. Shankaranarayana Rao
(D) by L.Rs. & Ors. v. Leelavathy (D) by
L.Rs. & Ors., AIR 2007 Supreme Court
2637.

3. Diwakar Sahkari Krishi
Samiti Ltd. and others v. State of U.P.
and others, 1988 R.D. 208.

11. Placing reliance upon the
aforesaid authorities, it is urged that the
burden of proving the transfer as benami
transaction lies on person who asserts such
a transaction as benami and it has to be
proved by him that the purchase money
came from the person other than the person
in whose favour the property is transferred.

12. Having heard learned counsel for
the appellant, I find that there is no dispute
that sale deed was in the name of Dwarika
Prasad who was maternal grand father of
defendant nos.2, 3 and 4 and father of
defendant no.1. In order to arrive at a
conclusion that the sale deed was a benami
transaction, there should have been clear
pleadings as well as trustworthy evidence
to hold the transaction as such. What the
court finds from the appellate judgment is
that it has given much weightage to various
letters on record. The Court has perused the
original record of the proceedings. One
letter was written by one Vidyanand to
Waziri Lal as discussed by the first
appellate court. Vidyanand was tenant in
the shop in dispute. In the said letter, it is
written that he was not aware of the fact as
to whether Waziri Lal had or had not
acquired rights over the property. Another
letter is by one Ram Prakash, which was
written to Waziri Lal but it also does not
speak anything about ownership of the
property. Few letters inter se Dwarika
Prasad and Waziri Lal are also on record,
however, the Court finds that both the said
real brothers were just asking about well
being of each other and from nowhere it
can be inferred that there is any admission
as regards payment of sale consideration by
Waziri Lal to Dwarika Prasad in relation to
sale
deed
of
1942.
Therefore,
the
documentary evidence as regards payment
of sale consideration is thoroughly lacking.
As far as oral testimony of witnesses is
concerned, the trial court arrived at a
conclusion that except plaintiff, there is no
witness was worth believing and the
plaintiff being an interested witness, his
statement would not make the transaction
as benami. The first appellate Court has
referred to the testimony of witnesses but
the same does not appeal to this Court to
arrive at a definite conclusion that sale deed
of 1942 was a benami transaction.

13. The Hon'ble Supreme Court, in
Bhim Singh (supra) held that :

"Two
kinds
of
benami
transactions are generally recognized in
India. Where a person buys a property with
his own money but in the name of another
person without any intention to benefit
such other person, the transaction is called
benami. In that case, the transferee holds
the property for the benefit of the person
who has contributed the purchase money,
and he is the real owner. The second case
which is loosely termed as a benami
transaction is a case where a person who is
the owner of the property executes a
conveyance in favour of another without
the intention of transferring the title to the
property thereunder. In this case, the
transferor continues to be the real owner.
The difference between the two kinds of
benami transactions referred to above lies
in the fact that whereas in the former case,
504 INDIAN LAW REPORTS ALLAHABAD SERIES
there is an operative transfer from the
transfer to the transferee though the
transferee holds the property for the benefit
of the person who has contributed the
purchase money, in the latter case, there is
no operative transfer at all and the title rests
with the transferor notwithstanding the
execution of the conveyance. One common
feature, however, in both these cases is that
the real title is divorced from the ostensible
title and they are vested in different
persons. The question whether a transaction
is a benami transaction or not mainly
depends upon the intention of the person
who has contributed the purchase money in
the former case and upon the intention of
the
person
who
has
executed
the
conveyance in the latter case."

14. The Apex Court in V.
Shankaranarayana Rao (supra) held that :

 "11. Principle
on
the basis
whereof determination of the question as to
whether a transaction is a benami one or
not depends upon a large number of
factors. Some of them had been noticed by
this Court in Thakur Bhim Singh (Dead)
By LRs and Another v. Thakur Kan
Singh [(1980) 3 SCC 72] in the following
terms:

"18. The principle governing the
determination of the question whether a
transfer is a benami transaction or not may
be summed up thus: (1) the burden of
showing that a transfer is a benami
transaction lies on the person who asserts
that it is such a transaction; (2) it is proved
that the purchase money came from a
person other than the person in whose
favour the property is transferred, the
purchase is prima facie assumed to be for
the benefit of the person who supplied the
purchase money, unless there is evidence to
the contrary; (3) the true character of the
transaction is governed by the intention of
the person who has contributed the
purchase money and (4) the question as to
what his intention was has to be decided on
the basis of the surrounding circumstances,
the relationship of the parties, the motives
governing their action in bringing about the
transaction and their subsequent conduct,
etc."
 The said principle has been
reiterated by this Court in Binapani Paul
v. Pratima Ghosh & Ors. [2007 (6)
SCALE
398]
In
the
aforementioned
judgments, this Court has inter alia
emphasised on the fact that the role and / or
the motive on the part of the person who
had advanced the amount of consideration
plays an important role in determination of
the nature of transaction. The High Court
unfortunately had not considered the
question from the said angle. The High
Court while pronouncing the impugned
judgment had also not considered the effect
and purport of the requisite ingredients for
arriving at a decision as to whether the
transaction in question is benami or not."

15. This Court, in Diwakar Sahkari
Krishi Samiti Ltd. (supra) held that :

"It is well settled law that the
source whence the purchase money came is
by for the most important test for
determining whether the sale standing in
the name of one person is in reality for the
benefit of another and unless it is
established that the source of consideration
came from the person other than the
ostensible owner, the transaction cannot be
held to be Benami transaction. Hence the
payment of consideration is the real test for
determining as to who is the real owner of
the land in dispute. In Gangadara Ayyar
and others v. Subramania Sastrigai and
others, AIR 1949 FC 88, Mr. Justice
8 All. Rama Shanker & Ors. Vs. Lala Wajiri Lal
505
Mahajan laid down the following principle
at page 92:-

"It is settled law that the onus of
establishing that a transaction is Benami is
on the plaintiff and it must be strictly made
out. The decision of the Court cannot rest
on mere suspicion but must rest on legal
ground and legal testimony. In absence of
evidence, the apparent title must prevail."
 In
Surasaibalini
Devi
v.
Phanindra Mohan Majumdar, AIR 1965
SC 1364, their Lordships laid down on
page 1372 that :

"We start with the position that
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 enjoyment
would be a very material fact or for
establishing the proof of Benami but the
mere proof of the source of purchase
money would not finally establish the
Benami nature of the defendants title. Even
where the 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 and it would then be a
case of Benami notwithstanding that the
purchase money did not proceed from the
defendant."

In Jayadayal Poddar v. Bibi
Hazra, (1974) 1 SCC 3, the Supreme Court
observed thus:-

"It is well settled that the burden
of proving that the particular sale is Benami
and that the appellant purchaser is not the
real purchaser always rests on the person
asserting it to be so. The burden has to be
strictly discharged by adducing the legal
evidence of a definite character which
would directly affect the proof of fact of
Benami
or
establish
circumstances
unerringly and reasonably raising an
inference of that fact. The essence of
Benami is that the intention of the party of
parties is 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
consideration 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."

16. In view of the above discussion of
facts and the law laid down by the Apex
Court and this Court, I am of the firm
opinion that there was neither sufficient
pleadings nor trustworthy evidence to hold
the transaction as benami. Inter- se-
communication between two real brothers
which does not infer anything regarding the
transaction or any communication with
third party would not confer owner ship
upon Waziri Lal. Ingredient of real
intention of parties is also absent. Payment
of sale consideration by Waziri Lal is also
not proved.

17. Consequently, the conclusion
drawn by first appellate court declaring the
transaction as benami is found to be
erroneous on factual and legal platform.
Accordingly, the questions of law framed
by this Court, as above, are answered in
favour of the appellants and it is held that
there being no sufficient pleadings and
506 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence to hold the sale deed of 1942 as
benami, the first appellate court has erred
in reversing the decree drawn by the trial
court. Consequently, the rights in the
property of Dwarika Prasad would devolve
upon his natural successors, who are the
appellants before this Court.

18. In view of the above, the
second appeal succeeds and is allowed.

19. The impugned judgment dated
06.04.1979 passed by the IV Additional
District Judge, Bijnor in Civil Appeal
No.363 of 1976 and the decree drawn on
that basis is set aside.

20. Office is directed to send back the
record of the courts below to District
Judge, Bijnor for being preserved in
accordance with General Rules (Civil).
----------
(2024) 8 ILRA 506
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.08.2024

BEFORE

THE HON'BLE JASPREET SINGH, J.

Writ- B No. 643 of 2023

Smt. Ghasita ...Petitioner
Versus
Board of Revenue Lko. & Ors.
 ...Respondents

Counsel for the Petitioner:
Pramod Kumar Yadav

Counsel for the Respondents:
C.S.C., Dilip Kumar Pandey

Civil Law - Constitution of India, 1950 -
Article 226, - Limitation Act, 1963 -
Section - 5, - U. P. Land Revenue Act, 1901
- Section - 54, - UP Revenue Court Manual
- Regulation - 489 - Writ Petition - impugned
order passed by the Board of Revenue -
proceeding u/s 54 of LR Act, initiated by the
petitioner - St. contested the same - when St.
delaying the proceedings, respondent no. 3
allowed the application - St. authorities filed a
recall application along with delay condonation
Application - recalled was allowed along with
interim measure - Revision - dismissed - court
finds that, by means of impugned order, the
operation of the principal order has been stayed
at best if the intention was to protect the
property it could have been protected but was
not appropriate to stay the operation of the
order itself - this was not considered by the
Board of revenue - held, Application of recall
was time barred and the interim order could not
have been granted before condoning the delay
as it affects the right of the parties contesting
the proceedings - hence, the Board of Revenue
has not exercised its jurisdiction as per law -
consequently, order impugned is set aside - writ
petition is allowed - petitioner directed to
contest the proceedings before the respondent
no. 3 where he shall be permitted to file his
objections to the recall application as well as to
the application under section 5 of the Limitation
Act - directions issued accordingly. (Para - 24,
25)

Writ Petition is allowed. (E-11)

List of Cases cited:

1. Asit Kumar Kar Vs St. of W. B. - 2009 vol. 2
SCC 703,

2. Vshnu Agarwal Vs St. of U.P. (2011 vol. 14
SCC 813),

3.
Ram Prakash Vs Deputy Director of
Consolidation & ors. (2022 SCC online All 107),

4. Bank of Maharashtra Vs Race Shipping &
Transport Co. Pvt. Ltd. & anr. (1995 3 SCC 257).

(Delivered by Hon'ble Jaspreet Singh, J.)

1. Heard learned counsel for the
petitioner, Shri Hemant Pandey, learned
standing counsel for the State-respondents