# BHIM SINGH &.ANR v. KAN SINGH

- **Citation:** [1980] 2 S.C.R. 628
- **Court:** Supreme Court of India
- **Decided:** 1979-12-21
- **Case number:** Civil Appeal Nos. 626 & 629 of 1971
- **Bench:** VICE VERSA) December 21, 1979 fP. N. SHINGHAL, E. S. VENKAlARAMIAII
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhim-singh-anr-v-kan-singh-7914
- **Pages:** 22

## Headnote

Benanii-What is-Tests for deciding benami transactions.
Plaintiff no. 1 and plaintiff no. 2 were father and son while defendant wa5
the brother of plaintiff no. 1.
The plaintiffs in their suit against the defendanl
claimed that the suit house in Which the defendant WM living,
belonged
to
them by virtue of a patta issued in their names. They alleged that the deceased
brother of plaintiff no. 1, who remain'ed a bar-Jielor till his death, loved plaintiff
no. 2 as bis son and had thought of adopting plaintiff no. 2 but since he· died
all of a sudden it could not be done. The defendant on the other band claimed
that he and his deceased brother lived as m'embers of a joint family after the
partition of their family that as a rellult of the joint efforts of himself and his
deceased brother the Ma-haraja, of Bikaner sanctioned sale cf the house io
them, that the purchase money v;as paid out of their joint income but that the
patta wa.s granted in the names of the plaintiffs du'e t_g political
reasons and
therefore the plaintiffs were at the most benamidars.
The trial court held that the house was acquired by the deceas'ed brother
from the Government of Bikaner for the plaintiffs and the patta was granted in
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favour of the plaintiffs and that they were in its J>0S5csi;ion till 195fj. It rejected
the defendant's claim that it was acquired with the joint funds of him~clf z-nd
his deceased brother.
On appeal the High Court held that the house bad been purchased by the
deceased brother out of his own money in the names of the plaintiffs without
any intention to confer any beneficial interest on them a.nd on his d'eath plain·
F
tiff no. l and the defendant su=eded jointly to the estate as his heirs.
H
HELD : The transaction under 'Which the· patta was obtained was
not
a
benami transaction. The house WM w.:quired by the deceased brother with his
money and with the intention of constituting plaintiff no. 2 as the absolute owner
thereof.
[648G]
Where a person buys property with his own money but in the name of
another person without any intention to benefit such other person, the transac·
tion is called benami. In that case the ~eree holcb!I the property for the
benefit of the person who hali. contributed the purchase money and he is a real
owner. T·he second case which ts looeely termed a benami tr.ansaction is a
~ase 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 thereund'er.
In this case the transferor continues to be the real owner.
The difference between the two kinds of benamj transactions is tha.t whereas in
the former there is an operative tramfer from the tramferor to the transferee,
though the transferee holds the property for tbe benefit of the person who bas
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BHIM SINGH v. KAN SINGH (Venkataramiah J.)
629
contributed the purchase mon·ey, in the latter there is no operative transfer at
all and the title rests with the transferor notwithstanding the execution of the
conveyance. One common feature in both cases is that the real title is divorced
from the ostensible title and they are vested in different persons. The queition
whether a transaction is a benami transaction'. or not depends upon the intention
of the p'erson 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.
The principle underlying the former case is statutorily r'ecognized
in
section 82 of the Indian Trust Act, 1882.
[638B-E]
Mcenakshi Mills, Madurai
v..
The r:ommissioner of Income-Tax, Madras,
(1956] S.C.R. 691 at p. 722; Mohammad Sadiq Ali Khan v. Fakhr Jahan Begam
&: Ors. 59 I.A. 1; Manrnohan Das & Ors. v. Mr. Ramdai & Anr. A.I.R. 1931
P. C. 175; Jaydayal Poddar (deceased) through /iis L.Rs. & Anr. v. Mst. Bibi
• Hazra & Ors. [1974] 2 S.C.R. 90 referred to.
2. The prinlciples governing the determination of the question whether a
transfer

## Text

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628
BHIM SINGH &.ANR.
v.
KAN SINGH
(AND VICE VERSA)
December 21, 1979
fP. N. SHINGHAL AND E. S. VENKAlARAMIAII, JJ.]
Benanii-What is-Tests for deciding benami transactions.
Plaintiff no. 1 and plaintiff no. 2 were father and son while defendant wa5
the brother of plaintiff no. 1.
The plaintiffs in their suit against the defendanl
claimed that the suit house in Which the defendant WM living,
belonged
to
them by virtue of a patta issued in their names. They alleged that the deceased
brother of plaintiff no. 1, who remain'ed a bar-Jielor till his death, loved plaintiff
no. 2 as bis son and had thought of adopting plaintiff no. 2 but since he· died
all of a sudden it could not be done. The defendant on the other band claimed
that he and his deceased brother lived as m'embers of a joint family after the
partition of their family that as a rellult of the joint efforts of himself and his
deceased brother the Ma-haraja, of Bikaner sanctioned sale cf the house io
them, that the purchase money v;as paid out of their joint income but that the
patta wa.s granted in the names of the plaintiffs du'e t_g political
reasons and
therefore the plaintiffs were at the most benamidars.
The trial court held that the house was acquired by the deceas'ed brother
from the Government of Bikaner for the plaintiffs and the patta was granted in
E
favour of the plaintiffs and that they were in its J>0S5csi;ion till 195fj. It rejected
the defendant's claim that it was acquired with the joint funds of him~clf z-nd
his deceased brother.
On appeal the High Court held that the house bad been purchased by the
deceased brother out of his own money in the names of the plaintiffs without
any intention to confer any beneficial interest on them a.nd on his d'eath plain·
F
tiff no. l and the defendant su=eded jointly to the estate as his heirs.
H
HELD : The transaction under 'Which the· patta was obtained was
not
a
benami transaction. The house WM w.:quired by the deceased brother with his
money and with the intention of constituting plaintiff no. 2 as the absolute owner
thereof.
[648G]
Where a person buys property with his own money but in the name of
another person without any intention to benefit such other person, the transac·
tion is called benami. In that case the ~eree holcb!I the property for the
benefit of the person who hali. contributed the purchase money and he is a real
owner. T·he second case which ts looeely termed a benami tr.ansaction is a
~ase 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 thereund'er.
In this case the transferor continues to be the real owner.
The difference between the two kinds of benamj transactions is tha.t whereas in
the former there is an operative tramfer from the tramferor to the transferee,
though the transferee holds the property for tbe benefit of the person who bas
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BHIM SINGH v. KAN SINGH (Venkataramiah J.)
629
contributed the purchase mon·ey, in the latter there is no operative transfer at
all and the title rests with the transferor notwithstanding the execution of the
conveyance. One common feature in both cases is that the real title is divorced
from the ostensible title and they are vested in different persons. The queition
whether a transaction is a benami transaction'. or not depends upon the intention
of the p'erson 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.
The principle underlying the former case is statutorily r'ecognized
in
section 82 of the Indian Trust Act, 1882.
[638B-E]
Mcenakshi Mills, Madurai
v..
The r:ommissioner of Income-Tax, Madras,
(1956] S.C.R. 691 at p. 722; Mohammad Sadiq Ali Khan v. Fakhr Jahan Begam
&: Ors. 59 I.A. 1; Manrnohan Das & Ors. v. Mr. Ramdai & Anr. A.I.R. 1931
P. C. 175; Jaydayal Poddar (deceased) through /iis L.Rs. & Anr. v. Mst. Bibi
• Hazra & Ors. [1974] 2 S.C.R. 90 referred to.
2. The prinlciples governing the determination of the question whether a
transfer is a benami or not are : ( 1) The burden: of showing that a. transfer is
a benami transaction lies on th'e person who asserts that it is such a transaction;
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(2) if it is proved that the purchase money came from a person other tha.n the
person in whose fa\.uur the: property is transferred, the purchase is prilna-facie
assumed to b'e for the benefit of the person who supplied the purchase money,
nnle!S there is evidence to the contrary; (3) the true character of the transaction
0
is governed by the intention of the person who has contributed the purchas'e
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 th'e parties
the motives governing their action in bringing about the transaction and their
sui,.eqnent conduct.
[6410.E]
In the instant case the deceased brother was a bachelor. On the death of
E
the wife of plaintiff no. 1, plaintiff no. 2 and his younger brother were staying
with the de.ceased brother. Plaintiff no. l was almost in an indigent condition
while d'efendant practised law for some time and later entered into service. The
patta for the house was issued in the name of plaintiffs nos.. l and 2 at the request of the deceased brother for the benefit of plaintiff no. 2 and was handed
over to him after h'e completed his education. This conduct of the deceased
brothel established that it was his intention that, when he secured the patta from
F
the State Government in the names of plaintiffs it was his intentioni that plaintiff
no. 2 whom he loved, should become th~ owner.
[641F-H)
3. The declaration made by the deceased, who had contributed the purch..,e
money subsequent to the date of purchase to the effect that the property belonged to plaintiff no. 2 wag admissible in evidence either under section 32(3) or
section 21 of the Indian Evidence Act to prove his intention that he intended
G
that plaintiff No. 2 should become its owner.
[647E]
SheP.hard & Anr. v. Cartwright & Anr. [1955] A.C. 431, distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 626 & 629 of
1971.
From the Judgment and Order dated 5-8-1970 of the Rajasthan
High Conrt in R.F.A. No. 31/60.
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SUPREME COURT REPORTS
[1980] 2 S.C.R.
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S. T. Desai and Naunit Lal for the Appellant.
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P. R. Mridul, B. P. Sharma, Krishna Bhatt and R. K. Bhatt for the
Respondents.
The Judgment of the Conrt was delivered by
VENKATARAMIAH, J.-These two cross appeals by certificate arise
out of a suit for posse6sion of a house situate in Bikaner and for
damages for use and occupation thereof filed in Civil Original Case
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No. 17 of 1957 on the file of the District Judge, Bikaner. The plain·
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tiffs in the suit are the appellants in Civil Appeal No. 626 of 1971 and
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tl:.e defendant is the appellant in Civil Appeal No. 629 of 1971. The r
genealogy showing the relationship between the parties is given
"·
below:-
Duley
Singh
Sur lingh
Bhar.ltSingh
(Died in
Sept. 1955)
Bh. I. h
ims1ng
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I
Dhaney
Singh
I
Deep
Singh
Himmat
Singh
(P.2.)
(P.I.)
Dalip
Singh
(Died in
Sept. 56)
Kan~ingh
(Deft.)
Gad Singh, Bharat Singh, Bhim Singh (plaintiff No. 1) and Kan
Singh (defendant) are the sons of Sur Singh. Bharat Singh died unmarried in September, 1955. Gad Singh died thereafter leavinfli behind
him three sons, Duley Singh, Dhaney Singh and Deep Singh. Dalip
Singh, the second son of plaintiff No.1 died in September, 1956.
Bharat Singh and the defendant were residing in the house which was
the subject matter of the suit. After the death of Bharat Singh, the
plaintiffs Bhim Singh and Himmat Singh filed the suit out of which this
appeal arises against Kan Singh, the defendant for recovery of possession of the suit house and other ancillary reliefs. In the plaint, they
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BIIIM SINGH v. KAN SINGH (Venkataramia,h !.)
63 I
pleaded that the suit house belonged to them by virtue of a patta dated
July 12, 1940 issued in their names; that the cloofendant who was the
brother of plaintiff No. 1 and uncle of plaintiff No. 2 was living in a
part of the house with their consent; that plaintiff No. 2 and his
yonhger brother Dalip Singh were also Jiving in th" house till the year
1956; that the defendant had refused to receive a notice issued by
them ir. the month of September, 1957 calling npon him to hand over
possession of the house to the plaintiffs; that the defendant had done
so on account of personal ill will and ·that the plaintiffs were, therefore, entitled to recover possession of the ~uit house and damages from
the defendant
The<e were briefly the allegations made in the plaint.
-. On the above basis, the plaintiffs prayed for a decree for the reliefs
referred to above.
lo the written statement, the defendant did not admit the existence
of the patta on the basis of which the plaintiffs claimed title to the suit
house. He denied the allegation that the plaintifls were the owners in
possessicn of the suit house. He claimed that he was the exclusive
owner of the suit house, and in support of the said claim stated as
followi :--
There was a partition amongst the sons of Sur Singh in the year
1929. At 'that partition, Gad Singh and plaintiff No. 1 became separated and they were given all the family properties which were situated
in their village, Roda.
As Bharat Singh and the defendant J1ad been
educated at the expense of the family, they weu~ not given any snare
in the properly. Bharat Singh and he settled in Bikaner and lived togather as members of joint Hindu family. Bharat Singh died on September 2, 1955 leaving the defendant as a survivi'ng coparcener.
011
his death, the defendant became the owner of the properties of Bh;m:t
Singh 'as a member of joint Hindu family'. He fur:her pleaded that
from the year 1928, Bharat Singh and he who were working as the
Aid-de-Camp and Private Secretary respectively of the
Maharaja of
Bibner were living in the suit house which then belonged to ihc
Mabr.raja. The defendant filed an application for purchasing the
honse.
The proceedings had not terminated when tbe defendant left
the service ot the Maharaja and went "' Banaras for higher studies.
On h;~ return from Banaras, he joined the service of the Maharnj1 in
the civil department of Bikaner. After a Jong time on account of the
joint efforts of Bharat Singh and the defendant, the sale of the house
was sanc<ioned.
Bharat Singh who was Jiving jointly with him pa;d
the ccnsideration for the sale on November 4, 1939 'out of the jornc
income.'
Thus according to the defendant, Bharat Singh nnd lie beca111e its owners from the date of payment of the consideration
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further p;eaded that 'if the patta of the property had been granted in
ti::?. names of the plaintiffs due <o some reasons, political and other
surroundiDg circumstances and for the safety of the property, it cannot
affect the right of the defendant'. It was ~!so itated that Bharat Singh
and the defendant had not executed any sale deed in favour ot the
plaintiffs and so they could not become owners of the suit house. In
another part of the written statement, the defendant pleaded thus :
"The pkiintiffs have taken the entire ancestral property of
the viliage.
Still they are harassing the defundant due to
avance. The defendant and Thakur Bharat Singh had been
doing Government service.
So there was always danger of
removal or confiscation of the property.
Even if Thakur
Bharat Singh might have written or given his consent for
entering the names of the plaintiffs in the patta in this view,
it is not binding.
The plaintiffs are at the most 'benami' even
though the patta which is not admitted might be proved."
It is thus seen that the defendant put forward a two-fold claim to
the suit house-one on the basis of the right of survivorship and another on the basis of a joint purchase along with Bharat Singh. Even
thou~h in one part of the written statement, he declined to admit the
existence of the patta, in paragraph 13 of the written statement which
is extracted above, he put forward the plea that the plaintiffs were al
the most holding the property as benamdars. He, however, did not
claim that he was entitled to the property as an heir of Bharat Singh
alongwith plaintiff No. 1 .and Gad Singh who would have inherited the
estate of Bharat Si'ngh on his death being his nearest heirs.
In t11e reply, the plaintiffs denied that the defc;ndant was entitled
to the suit house as a surviving coparcener on the death of Bharat
Singh. They, however, pleaded that plaintiff No. l had purchased the
suit house out of his income; that Bharat Singh used to love plaintiff
No. 2 'a, his son' and was thinking of adopting him but he died all of
a sudde'n and that the defendanl' had not disclosed in his written statement the special political circumstances under which the names of the
plaintiffs were entered in the patta.
They denied that the defeililan~
had any interest in the suit house.
Or. the basis of the Oflll and documentary evidence produced before him, the learned District Judge who tried the suit held that Bharat
Singh had secured the house from the Government of Bikaner for the
ff
plaintiffs with their money; that the patta of the house had been granted by the Patta Court in favour of the plaintiffs; that the plaintiffs
were in possession of the suit hoiase till September, 1956 and that the
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BJIIM SINGH 1'. KAN SINGH (Venkataramidlz, J.)
633
defendant being their close relative was living ;n the house not on his
<Jwn account but with the plaintiffs' permission.
The learned District
Judge also held that the defendant had failed to prove that the suit
house had been acquired by him and Bharat Singh with their joint
fund.
Accordingly he decreed the suit for possession of the house
in favour of the plaintiffs and further directed that the defendant should
pay damages for use and occupation at the rate of Rs. 50 per month
from September 20, 1956 till the possession of the house was restor-
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ed to them.
Aggrieved by the decree of the trial court, the defendant
filed an appeal before the High Court of Rajasthan in Ci'Vil First
,fi.ppeal No. 31 of 1960. The High Court rejected the case of the
plaintiffs that the consideration for the house had been paid by Bharat
Singh out of the funds belonging to them and also the case of the
defendant that
the
house
had been
purchased
by
Bharat
Singh with the aid of joint family funds belonging to himself and the
defendant.
The High Court held that the house had been purchased
by Bharat Singh out of his own money in the names of the plaintiffs
without any intention to confer any beneficial interest on them. It
further held that the suit house belonged to Bharat Singh and on his
death, Gad Singh, ,plaintiff No. 1 and the defendant succeeded to bis
estate which included the suit house in equal shares. Accordingly in
substitution of the decree passed by the trial court, the High Court
made a decree for joint possession in favour of plaintiff No. 1.
The
rest of the claim of the plaintiffs was rejected.
Dissatisfied with the
decree of the High Court, the plaintiffs and the defendant have filed
these two appeals as mentioned above.
The principal issue which arises for consideration relates to the
ownership of the suit house. It is admitted on all hands that though
Bharat Singh and the defendant were living in the suit house from
the year 1928, it continued to be the property of the Maharaja of
Bikaner till the date on which the patta (Exh. 4) was issued by the
Patta Court of Bikaner and that on the issua of the patta, the State
Government ceased to be its owner. It is also not di~puted that the
patta constituted the title deed in respect of the suit house and it was
issued in the names of the plaintiffs on receipt of a sum of Rs. 5,000.
On January 11, 1930, the defendant had made an application, a
cer~fied copy of which is marked as Exhibit A-116 to the Revenue
Minister of the State of Bikaner making enquiry about the price
of the suit honse on coming to know that the State Government intended to sell it.
After the above application was made, the. defendant left the service of the State of Bikaner and went to Banaras for
studies.
Bharat Singh who was also an employee of the State GovA
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SUPREME cou:n REPORTS
[19801 2 s.c. (.
ernment was working as the Aid-de-Camp of the Maharaja in 1939.
At the request of Bharat Singh, an order was made by the Maharaja
on May 4, 1939 sanctioning the !Lale of the suit house for a sum o[
Rs. 5,000.
Exhibit A-118 is the certified copy of the said order.
Exhibit A-120 is a certified copy of the order of Tehsil Mahnandi
showing that a sum of Rs. 5 ,000 bad been deposited on behalf of
Bharat Singh towards the price of the suit house. It also shows that
Bharat Singh was asked to intimate the name of the person in whose
favour the patta should be prepared.
Presumably, the patta
was
issued in the names of the plaintiffs as desired by Bharat Singh and
Exhibit A-121 shows that it was handed over on September 30, 1940.
The patta was produced before the trial court by the plaintiffs.
Y
By the time the patta was issued in the names of the plaintiffs,
the mother of plaintiff No. 2 had died. He was about eight years of
age in 1940 and he and his younger brother, Dalip Singh were under
the protection of Bharat Singh who was a bachelor.
They were staying with him in the suit house.
The defendant also was residing in
it.
Th~ plaintiffs who claimed title to the property under the patta
in the course of the trial attempted to prove that the sum of Rs. 5,000
which was paid by way of consideration for the patta by Bharat Singh
came out of the jewels of the mother of plaintiff No. 2 which had
come into the possession of Bharat Singh on her death.
The plaintiff No. 2 who gave evidence in the trial court stated that he had not
~iven any money to Bharat Singh for the purchase of the house but
he had come to know from his father, plaintiff No. 1 that it had been
purchased with his money.
Jaswant Singh (P.W. 2) and Kesri Singh
(P.W. 3) to whose evidence we will make a reference in some detail
at a later stage also stated that they had heard from Bharat Singh
that the jewejs of the mother of plaintiff No. 2 were with him suggesting that they could have been the source of the price house. Plaintiff
No. 1 who could have given evidence on the above question did not
enter the witness box. It is stated that he was a person of weak mind
and after the death of Bharat Singh was behaving almost like a mad
man.
The defendant stated in the course of his evidence that the
mother of plaintiff No. 2 had gold jewels weighing about 3-4 tolas
only.
In this state of evidence, it is difficult to hold that the plaintiffs
have established that the consideration for the suit house was paid by
them.
The finding of the trial court that the house had been purchased by Bharat Singh for the plaintiffs with their money cannot be upheld.
The case of the defendant that the price of the suit house was
paid out of the funds belonging to him and Bharat Singh bas been
rejected both by the trial court and the High Court.
On
going
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BHIM SINGH v. KAN SINGH (Venkataramiah, J.)
635
through the evidence adduced by the defendant, we feel that there is
no reason for us to disturb the c<Jncurrent findings arrived at by the
trial court and the High Court on the above question.
We shall,
therefore, proceed to decide the question of title on the basis that the
considera1ion for the purchase of the house was paid by Bharat Singh
out of his own funds.
It was contended by the learned counsel for the defendant that
since the plaintiffs had failed to establish that they had contributed the
, price paid for the suit house, the suit should be dismissed without
going into the question whether Bharat Singh had purchased the suit
house with his money in the names of the plaintiffs for the benefit of
plaintiff No. 2.
The plaint does not disclose the name of the person
or persons who paid the sale price of the suit house.
The suit i~
based on the patta standing in the names of the plaintiffs.
In the
written statement of the defendant, there was an allegation to the
effect that even though the patta was standing in the names of the
plaintiffs, they were only benamidars and the real .title was with
Bharat Singh and the defendant.
The particulars of the circumstances
which compelled Bharat Singh or the defendant to take the patta
in the names of the plaintiffs were not disclosed although it was stated
that it had been done owing to some political and other surrounding
circumstances and for the safety of the property. From the evidence
led by the parties, we are satisfied that they knew during the trial
of the suit that the question whether the transfer effected under the
patta was a benami transaction or not arose for consideration in the
case.
Even in the appeal before the High Court, the main question
on which arguments were addressed was whether the transaction was
a benami transaction or not.
Merely because the plaintiffs attempted
lo prove in the trial court that the money paid for purchasing the
honse came out of their funds, they cannot in the circumstances of
this case b_e prevented from claiming title to the property on the basis
that even though Bharat Singh had paid the consideration therefor,
plaintiff No. 2 alone was entitled to the suit house.
Reference mav
be made here to the decision of this Court in Bhagwati Prasad v. Shri
Clwndramau/(1) where the Court observed as follows :-
"There can be no doubt that if a party asks for a relief
on a clear and specific grounds, and in the issues or at the
trial, no other ground is covered ei1her directly or by necessary implication, it would not be open to the said party to
(I) [196<>1 2 S,C.R.286.
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SUPREME C!JURT REPORTS
[1980] Z S.C.R.
attempt to sustain the same claim on a ground which is
entirely new. . . . . . . . . .
But in considering the application
of this doctrine to the facts of the present ca~e, it is necessary to bear in mind the other principle that considerations of
form cannot over-ride the legitimate considerations of substance. If a plea is not specifically made and yet it is covered
by an issue by implication, and the parties knew that the
said plea was involved in the trial, then the mere fact that
the plea was not expressly taken in the pleadings would not
necessarily disentitle a party from relying upon it if it is
satisfactorily proved by evidence. The general rule no doubt
is that the relief should be founded on pleadinga made by
the parties.
Bnt where the substantial matters relating to
the title of both parties to the suit arc touched, though indirectly or even obscurely in the issues, <ind evidence has
been led about them, then the argument that a particular
matter was not expressly taken in the pleadings would be
purely formal and technical and cannot succeed in every
case.
What the Court has to consider in dealing with such
an objection is: did the parties know that the matter in
question was involved in the trial, and did they lead evidence
about it?"
After holding that the parties to the said case were not taken by
surprise, the Court granted the relief prayed for by the plaintiff on
the basis that defendant was a licensee even though the plaintiff had
pleaded in his plaint that the defendant was tenant.
In the above
case, the Court distinguished the decision in Tro;an & Co. Ltd. v.
RM. N. N. Hagappa Chettiar(l) on which much reliance was placed
by the learned counsel for the defendant before us.
In the case of
Trojan & Co. Ltd. (supra), this Court came to the conclusion that
the alternative claim on which relief was sought was not at all within
the knowledge of the parties in the course of the trial.
The
case
before us is not of the nature.
In Ismail Mussa;ee Mookerdum v. Hafi;:, Boo(') the plaintiff laid
claim to a property which had been transferred in her name by her
mother alleging that she had paid the purchase money to her mother.
The court came to the couclusion that she had failed to prove 11hat
she had paid the consideration.
Still a decree was made in her favour
holding that she had become the owner of the property by virtue of
the transfer in her favour even though consideration had
not been
(I) [1953] S.C.R. 789.
(2) 33 I.A. 86.
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paid by her since it had been establi•hed in the case that her mother
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intended to transfer the beneficial interest in the property in her
favour.
This is borne out from the following passage at page 95
"Jn her evidence, which was very confused, she tried to
say that she paid that purchase-money to her mother.
This
was clearly untrue : as both Courts have found.
The fact,
therefore, remains that the properties purchased by
the
sale proceeds were purchased no doubt in Hafiz Boo's name,
but were purchased out of funds emanating from her mother's
estate.
This circumstance no doubt, if taken alone, affords
evidence that the transaction was benami, but there is, in
their Lordships' opinion, enough in the facts of the case to
negative any such inference."
Moreover no plea was raised on behalf of the defendant before the
High Court in this case contending that the High Court should not go
into the queotion whether the transfer under the patta was a benami
transaction or not.
We, therefore, reject the above contention and
proceed to examine whether the High Court was right in arriving at
the ooneksion that the plaintiffs were only benamidars holding the
property for the benefit of its real owner, Bharat Singh as the consideration therefor had emanated from him.
Under the English law, when real or personal property is purchased in the name of a stranger, a resulting trust will be presumed
in favour of the person who is proved to have paid the purchase
money in the character of the purchaser. It is, however, open to the
transferee to rebut that presumption by showing that the intention of
the person who contributed the purchase money was that the transferee shm1lJ himself acquire the beneficial interest in the property.
There is, however, an exception to the above rule of presumption
made by the Engli•h law when the person who gets the legal title
under the conveyance is either a child or the wife of the person who
contributes the purchase money or his grand child, whose father is
dead.
The rule applicable in such cases is known as the doctrine of
advancement which requires the court to presume that the purchase
is for the benefit of the person in whose favour the legal title is transferred even though the purchase money may have been contributed
by the father or the husband or the grandfather, as the case may be,
unless such presumption is rebutted by evidence showing that it was
the intention of the person who paid the purchase money that the
transferee should not become 1he real owner of the property in
question.
The doctrine of advancement is not in vogue in India.
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The counterpart of the English law of resulting trust referred to
above is the Indian law of benami transactions.
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 transacB
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tion 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 mmer
of the property executes a conveyance in favour of another without
the intention of transferring the title to the property therennder. In
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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, there is an operative transfer from the transferor 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 ~ransfer 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.
The principle underlying the former case is also
statutorily recognized in section 82 of the Indian Trusts Act, 1882
which provides that where property is transferred to one person fer a
consideration paid or provided by another person and it appears that
such other person did not 1ntend to pay or provide such consideration
for the benefit of the transferee, the transferee must hold the property
for the benefit of the person paying or providing the consideration.
This view is in accord with the following observations made by thiS
Court in Meenakshi Mills. Madurai v. The Commissioner of IncomeTax, Madras(') :-
"In this connection, it is necessary to note that the word
'benami' is used to denote two classes of transactions which
differ from each other in their legal character and incidents.
In one sense, it signifies a transaction which is real, as for
example when A sells properties to B but the sale deed mentions X as the purchaser.
Here the sale itself is genuine.
but the real purchaser is B, X being his benamidar. This is
(1) [1956] S.C.R. 691 at p. 722.
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the class of transactions which is usually termed as benami.
But the word 'benami' is also occasionally used, perhaps not
quite accurately, to refer to a sham transaction, as for
example, when A purports to sell bis property to B without intending that his title should cease or pass to B.
The
fnndamental difference between these two classes of transactions is that whereas in the former there is an operative
transfer resulting in the vesting of title in the transferee, in the
latter there is none such, the transferor continuing to retain
the title notwithstanding the execution of the transfer deed.
It is only in the former class of cases that it would be necessary, when a dispute arises as to whether the person named
in the deed is the real transferee or B, to enquire into the
quest;on as to who paid the consideration for the transfer,
X or B.
But in the latter class of cases, when the question
is whether the transfer is genuine or sham, the point for
decision would be, not who paid the
consideration
but
whether any consideration was paid."_
In Mohammad Sadiq Ali Khan v. Fakhr lahan Begum & Ors.(')
the facts were these : A Mahemmodan bought an immovable property
taking the conveyance in the name of his daughter who was five years
of age.
The income was credited to a separate account, but it was
in part applied to purposes with which she had uo concern. Upon
her marriage, the deed was sent for the inspection of her father-inlaw.
After the death of the donor it was contended that the property
was part of his estate, the purchase being benami.
The Judicial Committee of the Privy Connell held that there was a valid gift to the
daughter because there was proof of a bona fide intention to give,
and that intention was established.
In the conrse of the above decision, it was observed thus :-
"The purchase of this property was a very natural provision by Baqar Ali for the daughter of his favourite wife,
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and though there may be no presumption of advancement in
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such cases in India, very little evidence of intention would be
sufficient to turn the scale.
The sending of the deed for the
inspection of the lady's father-in-law, which the Chief Court
held to be established, was clea-rly a representation that the
property was hers, and their Lordships agree with the learned Judges in the conclusion to which they came."
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(I) 59 I.A. I.
640
SUPREME COURT REPORTS
[1980] 2 s.c.R.
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In Manmohan Dass & On. v. Mr. Ramdei & Anr.(') Lord Mac-
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mman speaking for the Judicial Committee observed :
In order to determine the
question of the validity or
invalidity of the deed of gift in question it is of assistance to
consider .
'the surrounding circumstances, the position of the parties
and their relation to one another, the motives which could
govern their actions and their rnbsequent conduct.'
Da/ip
Singh v. Nawal Kanwar 35 I.A. 104 (P.C.) always remembering th•at the onus of proof rests upon the party impeaching the deed.
The principle enunciated
by Lord Macmillan
in the case
of
· Manmohan Dass & Ors. (supra) has been followed by this Court in
Jayadayal Poddar (deceased) through his L. Rs. & Anr. v. Mst. Bibt
Hazara & Ors. Cl where Sarkaria, J. observed thus :
"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 would either directly
prove the fact of benami or establish circumstances unerringly and reasonably rai,ing 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 bcnami of any )l'art 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
considerable deliberation 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.
Though the question, whether
a particular sale is benami or not, is largely one of fact, and
for determining this question, no absolute formulae or acid
tests, uniformly applicable in all situations, can
be
laid
down; yet in weighing the probabilities and for gathering
(1) A.LR. 1931 P.C 175.
(2) [1974] 2S.C.R.90.
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BHIM SINGH v. KAN SINGH (Venkataramiah, J.)
641
the relevant indicia, the courts are usually guided by these
circumstances:
(1) the source from which the purchase
money came; (2) the nature and possesion 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 claimant oand 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 property after the sale."
The principle governing the determination of the question whether
a tronsfer 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) if 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 a.sumed 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 cf 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 snbB
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sequent conduct etc.
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Now we shall refer to the facts of the present case.
When the
suit house was purchased from the Maharaja of l3ikaner, Bharat Singh
was a bachelor and he did not marry till his death in the year 1955.
The wife of Bhim Singh had died before 1939 leaving behind her two
young children.
Plaintiff No. 2 was about eight years old in the ye11r
1939 and his younger brother Dalip Singh was about two years old .
These two childre.n were living with Bharat Singh.
Bhim Singh, plaintiff No. 1 was almosl in indigent conditi'on.
The defendant had by
then acquired a degree in law and also had practised as a lawyer for
some time. It is stated that the defendant had again been employed
in the service of the State of Bikaner. The patta was issued in the names
of plaintiffs 1 and 2 at the request of l3harat Singh.
Even though the
defendant stated in the written statement that the patl'a had been taken
in the names of the plaintiffs owing to certain political circumstances,.
he had not disclosed in the course, of his evidence those circnmstances
which compelled Bharat Singh to secure the patta in the names of the
plaintiffs, though at one stage, he sl'ated that it was under his advice
that Bharat Singh got the patta in the names of the plaintiffs.
Bharat
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SUPREME COURT REPORTS
.(1980] 2 S.C.R.
Singh had no motive to suppress from the knowledge of the public that
he had acquired the property.
It was suggested in the course of the
a.rguments that he had taken the patta in the names of the plaintifl'>
because he was in the service of the State.
We do not find any substance in this submission because the property was being purchased
from the State Government itself and there was no need for him to
shield his title from the knowledge of the State Government.
It appears that Bharat Singh acquired the suit house for the benefit of plaintiff No. 2 for the following circumstances :
The first circumstance is
that the original patta had been handed over by Bharat Singh to plaintiff No. 2 on his passing B.Sc. Examination.
This fact is proved by
the evidence of plaintiff No. 2 and it is corrobomted by the fact tbat
the patta was produced by the plaintiffs before the Court.
In the
course of bis evidence, the defendant no doubt stated that tbe patt:i
had been stolen by plaintiff No. 2 from the suit bouse
during tl:e
twelve days following the deatb of Bharat Singh when the keys •Jf
Bharat Singh's residence had been h•anded over to plaintiff No. 2 by
the defendant. It is difficult to believe the above statement of foe
defendant because of two circumstances-(i) that the defendant did
not state in the written statement that the patta had been stolen by
plaintiff No. 2 and (ii) that within a month or two after the death of
Bharat Singh, plaintiff No. 2 wrote a letter which is marked as Exhibit
A-124 to the defendant stating that the rumour which the defenda,1t
was spreading that plaintiff No. 2 had stolen some articles from the
suit house was not true since whenever plaintiff No. 2 opened room
or any of the almirahs of Bharat Singh in the suit house, Devi Singh.
lhe son of the defendant was keeping watch over him.
That letter hos
been produced by the defendant and there is no reference in it to a
false rumour being spread about the theft of the patta by plaintiff
No. 2.
Pl'aintiff No. 2 however, while asserting his claim to the suit
house in the course of that letter stated that he had seen that the patta
had been executed in his favour; and that the patta c·ontained his name.
The defendant does not appear to have sent any
reply to Exhibit
A.