# ANOTHER v. MST. BIBI HAZRA AND ORS

- **Citation:** [1974] 2 S.C.R. 90
- **Court:** Supreme Court of India
- **Decided:** 1973-10-19
- **Case number:** Civil Appeal No. 1759 of 1967
- **Bench:** R. Krishna Iyer, R. S. Sarkar!A
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/another-v-mst-bibi-hazra-and-ors-6217
- **Pages:** 7

## Headnote

8enami Transaction-Burden of proving that a particulur transaction U
benami /lies on the verson who asserts it-This burden has to be discharged by
definite uroof--Essence of benami is the intention of parties-Circumstances to
be takl!tJ into con.~ideration for determinin11 whether a transaction is benami Dr
real-Source of purchase money if the most iniportant test.
8
The burden of proving tftat a particular sale is benaml and the apparent pur·
C
chaser is not the real owner, always rests on the person asserting it to be 110.
This burden has to be strictly discharged by adducing legal evidence of a deft..
nite character which would either directly prove the fact of Benami or establish
Circumstances unerringly raising an inference of that fact.
The essence of a
benqmi is the intention of the party or parties concerned; and not unoften1 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 ncceptunee of
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'mere conjectures or surmises, as a substitute for proof. Though the question,
whether a particular sale is Benami or not, is largely one of fact, and for deter•
mining this question, no absolute.formulae or acid tests, uniformally applicable
in ·all situations, can be laid down; yet in weighing the probabilities· and for
aathering .the relevant indicia, the Courts are usually guided by these circumstances : ( 1) the source from which the purchase money came; (2) the nature
and possession of the property, after the purchasej (3) motive, if any, for giving
the transaction a benami colour; ( 4) the position of the parties and the relationship if any, between the claimant and the alleged benamidar; (S) the custody
E
of th: title-deeds after the sale and (6) the conduct of the parties concerned In
dealing with the property after the sale.
These indicia are not exhaustive and th~ir efficacy varirs according to the
facts of each case.
Nevertheless the source whence the purchase money came, is
by far, the most important test for determining whether the sale standing in the
name of one person, is in reality for the benefit of another.
[91H-92EJ

## Text

90
JAYDAYAL PODDAR (DECEASED) THROUGH HIS L.RS AND
A
ANOTHER
v.
MST. BIBI HAZRA AND ORS.
October 19, 1973
[V, R. KRISHNA IYER AND R. S. SARKAR!A, JJ.]
8enami Transaction-Burden of proving that a particulur transaction U
benami /lies on the verson who asserts it-This burden has to be discharged by
definite uroof--Essence of benami is the intention of parties-Circumstances to
be takl!tJ into con.~ideration for determinin11 whether a transaction is benami Dr
real-Source of purchase money if the most iniportant test.
8
The burden of proving tftat a particular sale is benaml and the apparent pur·
C
chaser is not the real owner, always rests on the person asserting it to be 110.
This burden has to be strictly discharged by adducing legal evidence of a deft..
nite character which would either directly prove the fact of Benami or establish
Circumstances unerringly raising an inference of that fact.
The essence of a
benqmi is the intention of the party or parties concerned; and not unoften1 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 ncceptunee of
D
'mere conjectures or surmises, as a substitute for proof. Though the question,
whether a particular sale is Benami or not, is largely one of fact, and for deter•
mining this question, no absolute.formulae or acid tests, uniformally applicable
in ·all situations, can be laid down; yet in weighing the probabilities· and for
aathering .the relevant indicia, the Courts are usually guided by these circumstances : ( 1) the source from which the purchase money came; (2) the nature
and possession of the property, after the purchasej (3) motive, if any, for giving
the transaction a benami colour; ( 4) the position of the parties and the relationship if any, between the claimant and the alleged benamidar; (S) the custody
E
of th: title-deeds after the sale and (6) the conduct of the parties concerned In
dealing with the property after the sale.
These indicia are not exhaustive and th~ir efficacy varirs according to the
facts of each case.
Nevertheless the source whence the purchase money came, is
by far, the most important test for determining whether the sale standing in the
name of one person, is in reality for the benefit of another.
[91H-92EJ
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1759 of 1967.
F
From the· judgment and Decree dated the 31st October, 1962 of
the Patna High Court in First Appeal No. 619 of 1958.
V. S. [)esai and R. C. Pra, for the appellant.
L. M. Singhvi, U.P. Singh and A. T. Patra, for respondent No. 1.
The Judgment of the Court was delivered by
SARKARIA, J.-This appeal by certificate is directed against the appellate judgment and decree, dated the 31st October, 1962, of the High
Court of Judicature at Patna.
The plaintiffs-appellants
instituted a suit on 30-6-1956, in the
Court of Subordinate Judge, Samastipur for a declaration Of title
and possession in resi;>ect o.f a pucca house in Plot No. 216, Ward m
of Samastipur Municipality. It was alleged that Abdul Karim (Def,
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JAYDAYAL (Dead) v. BIBI HAZRA (Sarkaria, J.)
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No. 1) had out of his own funds purchased this house in the name of'
his wife Mst. Hakimunnissa by a registered sale-deed dated 10-5-1941,
from one Abdul Motilib. After the purchase, Defendant No.1, wh<>
was in possession of tbe house, executed two mortgage deeds, dated
6-1-1948 and 28-7-1948, in favour of his son-in-law, Abdul Latif
(Defendent No. 3), husband of Mst. Bibi Hazra (Defendant No. 2).
Abdulkarim (Defendant No. 1), in order to clear the mortgage dues and.
for meeting other necessities, agreed to sell the house to Plaintiff No. 1
for a consideration of Rs. 20,000/-.
Pursuant to this agreement of
sale, Plaintiff No; 1 paid a sum of Rs. 10,209-4-0, by instalments to
Defendant No. 1.
Another sum of Rs. 2,990-12-0 was left with Plaintiff No. 2, for payment of the mortgage debts of Defendant No. 3,
Rs. 6,800/-, the balance of the price, was paid in cash to the vendor at
the time of the registration of the sale-deed on 25-5-1951.
Thereafter
Plaintiff No. 2 got this house mutuated in the Municipal records in her
favour.
Despite the sale, defendants Nos. 1 to 3, acting in collusion,
continued to be illegal possession of the house.
Defendant No. 1, while admitting the execption of the sale deed dated
25-5-1951, pleaded tbat it was without consideration. He however,
asserted that the house had been purchased by him, and th.at Mst.
Hakimunnissa was only his benamidar. The suit was registered by Bibi
Hazra, Defendant No. 2, on the ground that the house had been purchased by her mother, Mst. Hakimunnissa with her own money, she
being a lady of c.pnsiderable means; and, on Mst. Hakimunnissa's death
in 1944, she (Mst. Hazra) inherited and came in possession of 12
aimas share therein, while the remaining 4 annas share devolved on
Defendant No.! according to Mohammedan Law by which the parties
were governed in matters of succession.
Mst. Hazra further pleaded
that the sale deed. dated 24-5-1951 executed by Defendant No, 1 in
favour of Plaintiff No. 2, being a fictitous and collusive document, was
ineffective qua her share in the house.
·
The trial court held that "the disputed house did really belong to·
Abdul Karim, and Mst. Hakimunnissa was his benamidar in the sale
deed (Ex.D/I) by which the house was acquired", and as such Mst.
Hazra (Defendant 2) had no interest in. it. It further found that the
sale-deed in favour of Plaintiff No. 2 executed by Defendant No. 1 in
respect of the suit house was "valid, genuine and for a consideratloa".
Jn the result, it decreed the plaintiffs' suit.
In First Appeal No. 619 of .1958 preferred by Mst. Hazra (D:fendant No. 2), the High Court reversing the finding of the trial court,
held that the plaintiffs had failed to show that Mst. Hakimunnissa in
whose name the sale-deed (Ex. D/l) dated 10-5-1941 stead, was only
a benamidar and not the real purchaser.
In consequence, plaintiffs'
suit was dismissed with regard to 12 annas share of Bibi Hazra and a
decree for joint possession of 4 annas share of the vendor (Defendant
1) was passed in favour of plaintiffs.
It is well settled that the burden of proving that a particular sale
is benami and the apparent purchaser is not the real owner, always
rests on the person asserting it to be so. This burden has to be strictly
discharged by adducing legal evidence of a definite character which·.
92
SUPREME COURT REPORTS
[ 1974 J 2 s.c.R.
would either directly prove the fact of Benami or establish circumstances
.unerringly and reasonably raising an inference of that fact. The essence
of a benami is the intention of the party or parties concerned; and not
unoften such intention is shrouded in a thick veil which cannot be
easily pierced through. But such difficulties do not relieve the person
;asserting the transaction to be .benami of any part of the serio11s onus
that rests on him; nor justify the acceptance of mere conjectures or
surmises, as a substitute for proof. The reason is that a deed is a solemn
document prepared and executed after considerable deliberation and the
person expressly shown as the purchaser or transferee ln the deed,
starts with the initial presumption in his favour that the apparent state
of affairs is the real state of affairs. Though the question, whether a
particular sale is Benami or not, is largely one of fact, and for deter·
mining this question, no absolute formulae or aciti tests, uniformaliy
a. pplicable in all situations, can be laid down; yet in weighing the pro·
babilities and for gathering the relevant indicia, the courts are usually
guided by these
cfrcumstances: (I)
the
source
from
which
the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction
a benami colour; ( 4) the position of the parties and the relationship,
if any between the claiment and the alleged benamidar; (5) the cus·
tody of the title-deeds after the sale and ( 6) the conduct of the parties
concerned in dealing with the property after the sale.
The above indicia are not exhaustive and.their efficacy varies accord.
ing to the facts of each case. Nevertheless no. I, viz. the source whence
the purchase money came, is by far the most important test for deter·
minmg whether the sale standing in the name of one person, is in
reality for the benefit of another.
The question in the case is to be considered in the light of the above
in<licla.
As regards circumstance (1), the High Court noted Abdul
Karim (Defendant No.1) who was the best informed person to depose
to the source from which the purchase money was derived did not wher
examined as D .W. 7, specifically testify that the money bad been paid
from his personal fund.
In cross-examination, he admitted that he
had only two kathas of ancestral land with him: he had a tailorino shop
in which the entire capital invested was to the tune of Rs. 1,000/-
or Rs. 1,500/- only; he did not keep any accounts; he had six members of his family; his rental income was Rs. 12/- per month only.
The High Court was thus right in holding that these facts admitted by
Abdul Karim (Defendant No.!) presented a very "gloomy picture of
Abdul Karim's financial condition and resources" and that he was
not in a position to invest Rs. 43001- for purchase of the house in
question. The High Court after a survey of the other evidence on the
record further came to the conclusion that Mst. Hakimunnissa had
means of her own and her first husband and her son Moktadi by the
first !1usband were well to do oerson.
Moktadi had a big shop of
tobacco, scent oil, zarda etc.
·
..
Mr. Desai, learned Counsel for the appellant assails this finding of
the High Court on the ground that it was based On the oral evidence
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JAYDAYAL (Dead) v. BIBI HAZRA (Sarkaria, J.)
93
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of Abdul Rauf (D.W. 9) and Mohd. Shafiullah (D.W. 10), who ~ccord
ing to their own showing, had scant knowledge about the affairs of
Abdul Karim, Mst. Hakimunnissa or Bibi Hazra. It was stressed
that the trial court had rightly discarded the useless evidence of these
witnesses.
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It is true that the evidence of these two witnesses suffered from
infirmities; but the finding of the High Court on this point is ilot based
on their evidence alone.
The High Court also to6k into account
the evidence .of Bibi Hazara (D.W.13) who stated that she had received Rs. 1000/- or Rs. ISOO/- as her share of the. cash on the
death of her mother. She was in a position to know about the financial condition of her father and mother. According to her, Abdul
Karim, had given up tailoring Jong ago and he was running only a
petty shop of tobacco, tikia, hardly earning Re. !/• or Rs. 2/- per
day.
Then there was the documentary evidence furnished by the
sale-.deed (C-1/11) dated 1-4-42, executed by Mst.
Hakimunnissa
whereby she sold a house to (;baudhary Kishun Chand. It was re·
cited in this deed that in order to purchase the house in dispute she
(Hakimunnissal had to incur certain debts for payment of a part of
the consideration for the sale-deed (Exb.D/1). .The sale in question was effected about 11 months earlier on May 10,1941. This
recital being ante /item motam, was a valuable piece of evidence to
show that the consideration of the sale was paid by Mst. Hakimunnissa,
the apparent purchaser of the house, from her own resources.
Mr. Desai next contended that the recitals in the sale-deed· (&.D/
I ) not only neutralise the effect of the· recitals in the sale-deed.
(Ex.C(!l-II) but also show that the money for purchasing the houae
.must have been paid by Abdul Karim from his own pocket. Learned
Couilsel invited our attention to two recitals in EXh.D/ I which are
to the effect :
I. "I, the executant negotiated with Abdul Karim
the
tenant aforesaid regarding the sale of the said house.
The said tenant on receiving the said news became ready
and prepared to purchase ·the land and the house aforesaid. I, th~ executant finalised the negotiation for sale of
tjie said house, with the. said tenant and fixed the consideration money at Rs. 4,300/-."
2. "Accordingly I, the executant, have held out full assuG
rance and satisfaction to the claimant and her husband
in respect thereof. The huSband of the claimant and
the claimant get this deed of sale executed having confidence in and reliance on the. assurance given by me,
the executant, without making enquiry about encumbrance
and defect in title and Without seeing the index."
H
This contention does not appear to be tenable. It is not proper to
tear tlie. above recitals out of the context and read them in isolation.
They must be read with the preceding and succeeding contents of tho
document. (&.D/1) and also the connected recita1s in the sale-<ieed
(C-(IJ-II) dated 1st.April, 1942. In the latter deed, Hakimunriissa •
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SUPREME COURT REPORTS
[ 1974] 2 S.C.R.
inter-alia stated that she had previously taken in mortagage plot No.
216, per registered mortgage bond, dated 13·9·1940, from one Sh.
Abdul Motlib, and later on she had purchased that plo~ including
the house, for Rs. 4300/- under the sale-deed, dated 10th May 1941
(Ex.DI 1) from this Motlib. It is signilicant to note
that Abdul
Karim (Defendant No 1) had signed this deed as an attesting witness.
In the deed Ex.D/1, there is a clear reference to this preuious mortgage· executed in favour of Mst. Hakimunnissa, and the vendor therein is repeatedly referring to Mst. Hakimunnissa as
the
"claimant"
(creditor); and the payment of these past debts is mentioned as
a
reason for making the sale_ by the vendor Motlib. The learned judges
of the High Court have rightly cqnstrued these recitals as indicative
of Hakimunnissa being the real purchaser of the property.
The evidence with regard to possession of the disputed house was
to the effect that Abdul Karim and Hakimunnissa were in occupation
of the house both before and after the sale.
Even according to the ·
trial court "such joint possession was not at all material in the present case for determining the benami character or otherwise of the
transaction.
No evidence whatever was led to show that there was any motive
·or reason for givin$ a benami character to the transaction.
Abdul
Karim who had special knowledge of the circumstances bearing on such
motive, if any, did not say a word on this point.
There was not even
an oblique suggestion that Abdul Karim was heavily under debt and
in order to avoid payment of such debts, he thought it fit to acquire
the house in the name of his wife.
No capital can be made out of the circumstance that the negotiations for the purchase of the house were carried out by Abdul Karim
and a sum of Rs. 1700/- towards the part of the price was paid before
the Sub-Registrar by him.
It is in evidence that Hakimunnissa was
a Pardanishin lady, and naturally therefore it was her husband who
used to look after her affairs.
Neither
the
actual
delivery of
Rs. 1700/- before the Sub-Registrar by Abdul Karim, nor the recitals
made in Ex.D / 1 could be accepted as evidence of Abdul Karim being
the real purchaser.
He was acting ouly as an agent of his Pardanishin
wife.
For the same reasons, no significance can be attached to the
fact that the sale-deed remained in the custody of the husband.
Learned Counsel next referred to the two mortgage deeds, Ems.
C-1 and C(l)-1, dated 6th January, 1948 and 26th July, 1948, respectively, executed by Abdul Karim in favour of Abdul Latif (Defendant No. 3). Emphasis was laid on the fact that Abdul Latif was the
son-in-law of Abdul Karim and the husband of Bibi Hazra (Defendant No. 2).
We have also adverted to the discussion of this evidence
in the judgment of the Sub-ordinate Judge.
In agreement with the
High Court, we think, that this evidence also is not of a clinching
character; firstly, Abdul Latif was not only the husband of Bibi Hazra,
he was also the nephew of Abdul Karim; secondly, these mortgages
were bwught into existence after the controversy Lad arisen.
Bibi
Hazra had alleged that these transactions had been brought about by
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.JAYDAYAL (Dead) v. BIBI HAZRA. (Sarkaria, /.)·
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her bilsband calendestinely in collusion with her father. In this connection, it is note-worthy that on the death of-Hakimunnisn; her. husband bad also acquired 4 annas share· in it. · There was, therefore,
ground to suspect that Abdul Karim, taking advantage of Ins being a .
sharer in the house, brought into existence these mortgages in collm!on
with his nephew, to grab the entire property of Mst. ffaldm1mnissa.
Learned Counsel further referred to a certified copy.of the Order,
dated 22-11-1950 (Ex.E.!) and urged that this Onlei whereby ).Jst.
Hakimunnisa is claim o( her being the real ~
'Of the attached
house was dismissed, was a weighty piece of. evidence .admissible Ulldcr .
s. 13 of the Evidence Act, and; taken in conjunCtion with the judg- ·
ment, dated 22-11-1950, vide Ex.E(l)l and the. recitals in the deed,
was suflicient to show that Mst. Hakimummsa was only a benamldai
of her hwband.
It is common ground that thC ·house in·~ at one time, belonged to Abdul Motlib and he had.rented iS out to 'Abdnl Karim, the
original owner, Motlib, had mongaged. a part of· this house to one
Fakira Lal Sahu on 28-9-1947. Sahu filed a money suit against fuhr
penons (1) Abdnl Karim; (2) Mst. Hakimunnissa (3) Bibi KMtoon
and ( 4) Sh. Mothb lnJer-a!ia for the recovery of rent with interest
for the period, 21-3-1941 to.20-3-1942 .. The suit was partly decreed
against t.bdw: Karim i.lone and was dismissed as against Hakimunnissa by 'the Munsiff on 1-3-1943 vide Exh.1-IT. Abdul Kuhn's
appeal against that decree was dismissed and the decree of the trial
court with some modification, was maintained. Sahu then tool:: out
execution of !:is decree against the judgment-debtor, Abdul Karim.
Mst. Hakimunnissa filed an application under s.47 (under 0.21, r.57,)
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of the Code of Ovil Procedure claiming that the. attached house in
plot 216 was her exclusive property and her husband had no right or
interest in it. Her application was. dismissed by the Munsi.ll °'
22-11-1943 · with the finding that Mst. Hakimunnissa was only a
benamidar of the judgment debtor, Abdul Karim. Her appeal against
that order was disallowed by the Appellate Court on 21-2.-1944 l'i4e
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Ex. 10.
. Mr. Desai very fairly conceded that this order, dated 22-11-1943,
did not operate as res jUdicata hecaUSe the Munsiff was not competent
to decide the subsequent suit from which the present appeal has arisen;
but he urged that this order had become final heeause no suit under
Order 21, Rule 103 of the Code of O•il Procedure was filed by Mst.
Hakimwlnissa to establish her right, and, as such, this order, even if
not conclusive, was a very efficacious and presumptive prOOf cf the
fact that Mst. Hakimunnissa was merely a benamidar in respect of the
house in dispute.
The contention js attractive but does no~ stand a close examination. It is to be borne in mind that Msi. Hakimunnissa died only a
few months after the dismissal of her appeal, before the limitation for
filling the suit under Order 21, Rnle 103 had run out. Assuming
this evidence was admissible under s.13 of the Evid.'"1ll:le Act, it ""5
inconclusive and had been out-weighed by the other determinative cir-:·
curnstances and the preponderating probability that the
purchase·
money came from Mst, Hakimunnissa and not from Abdul Karim:
96
SUPREME COURT REPORTS
[ 1974] 2 S.C.R.
The judgment Exh.E(l)-1 in the rent suit filed in 1949-50 by
Abdul~ against Sh. Mohd. Yakub with regard to a shop attached to the disputed house could not, as rightly observed by the High
Court, be used against Mst. Hakimunnissa who was not a party to
those proceedings.
Defendant No. 2 had also brought on the record some rent receipts
and Municipal receipts, A(2)-II to A(5)·-II. Ex. A·II stands in the
name of Mst. Hakimunnissa. It evidences payment of platform tax
by her to the Municipality. It is true that the date on it was not
decipherable; but it· was obvious that this document concerned the
disputed house and related to a period when Mst. Hakimunnissa was
alive.
This evidence further strengthened the conclusion that Mst.
Hakimunnissa in her life time, and, after her death, her daughter Bibi
Hazra, were in enjoyment of and dealing with the house in dispute
as owners thereof.
Keeping in view the totality of the circumstances and the probabilities of the case, we have no hesitation in holding that the plaintiffs·
appellants had failed to prove that Mst. Hakimunnissa in whose name
the sale-deed (Ex.D/1) stood, was not the real purchaser but only
a benamidar of her husband.
In the result, we affirm the decision of the High Court and dismiss
this appeal with costs.
S.B.W.
Appeal dismissed.
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