Judgment: S.B. Sinha, J.
1. Defendants in the suit are
appellants before us. Smt. Leelavathi, predecessor in interest of the
present respondents filed a suit for partition. The properties in the
suit belonged to one G. Venkata Rao. He died on or about 18.10.1974
leaving behind three sons, V. Shankaranarayana Rao, V. Sathya Murthy and
V. Surendranath and a daughter Smt. Leelavathi.
2. Wife of Shri G. Venkata Rao, Smt.
Sharada Bai pre-deceased him. V. Shankaranarayana Rao died on or about
24.12.1995 i.e during the pendency of the appeal. Mr. V. Sathya Murthy
died on or about 10.10.1999 leaving behind a son Srinivasa. V.
Surendranath was the defendant No. 3 (appellant). Plaintiff Leelavathi
also died during the pendency of the appeal leaving the respondents
herein as her heirs and legal representatives. Leelavathi filed a suit
on or about 24.3.1976 which was registered as O.S. No. 43 of 1976 for
partition of the suit properties claiming 1/4th share in the properties
of the said G. Venkata Rao.
3. Defendants/Appellants denied and
disputed that G. Venkata Rao had purchased any property in their names
alleging that schedule Item No. 1(a) is the personal property of the
third defendant, whereas item Nos. 1 (b) and 1(c) thereof belong to the
second defendant. It was contended that the properties standing in their
names are exclusively owned by them and even three fixed deposits were
their own personal properties. It was averred that a joint saving bank
account in the Syndicate Bank, Bangalore was being operated in the joint
names of the deceased Venkata Rao and the defendant No. 2 and only a
small amount had been lying therein. As regards item No. (3), it was
alleged that no debt was due or payable to the deceased. It was
furthermore contended that he had left no jewellery. In regard to the
household articles which were described in items 10, 12, 19, 20, 21 and
22, of the plaint schedule the valuation whereof was assessed also at
Rs. 400, were, however said to be available for partition.
4. The learned Trial Judge framed a
large number of issues, some of which are as under:-
"1. Whether the plaintiff proves that the suit schedule immovable and
movable properties as described in schedule-I to V are the self acquired
properties of her father ?
2. Whether the suit schedule-I(a)
vacant site bearing No. 32/1, Aga Abbas Ali Road, Civil Station,
Bangalore, is the self acquired property of the 3rd defendant.
3. Whether the suit schedule-I(b)
vacant site bearing No. 32/1, Aga Abbas Ali Road, Civil Station,
Bangalore, is the self acquired property of the 2nd defendant.
4. Whether the suit schedule-I (C)
property is the self acquired property of the first defendant.
5. Whether defendants prove that the
suit schedule-II Bank Deposits are the personal properties of each of
6. Whether the defendants prove that
there were furniture mentioned as item 10, 12, 19, 20, 21 and 22 of the
suit schedule-V in page-5 of the plaint, hardly worth Rs. 400/- in
premises No. 138/A, (New No. 6) rmstrong Road, Civil Station, Bangalore
5. Whereas issue No. 1 was answered
in the negative, issues Nos. 2 to 6 were answered in the affirmative.
The learned Trial Judge opined that although the properties were
purchased with the money of G. Venkata Rao, the same having been done
for the benefit of his sons and/or by way of a family arrangement, were
not in benami in character.
6. Except the household articles,
schedule-I to V however, the suit for partition was dismissed.
7. On an appeal having been
preferred by the plaintiff, the High Court by reason of the impugned
judgment dated 26.2.1999 set aside the judgment and decree passed by the
learned Trial Court holding that although the properties were in the
name of the original defendants, the transactions, in question, were
benami in nature and in that view of the matter, the plaintiff had
inherited 1/4th share therein.
8. Mr. G.V. Chandrasekhar, learned
counsel appearing on behalf of the appellant in support of this appeal
would submit that the High Court committed a manifest error insofar as
it proceeded on the basis that G. Venkata Rao having provided for the
amount of consideration for purchasing the immovable properties in the
names of his three sons, by itself was sufficient to arrive at a
conclusion that the transactions, in question, were benami in character.
It was submitted that the High Court failed to notice that for the
purpose of establishing a plea that the suit properties were purchased
for the benefit of his sons and/or by way of a family settlement was not
required to be specifically pleaded. Strong reliance in this behalf has
been placed on Thakur Bhim Singh (Dead) by Lrs and Another v Thakur
Kan Singh [(1980) 3 SCC 72]. It was, furthermore, contended that
although the learned Trial Judge had taken great pains in discussing
other issues which were relevant for the purpose of determination of the
principal dispute between the parties viz. as to whether the
transactions, in question, were benami in nature and had been entered
into for the benefit of the original defendants, had at all not been
considered by the High Court. The backdrop of events, according to Mr.
Chandrasekhar, namely that the plaintiff within a few months of her
marriage came back to her parents' place and had been residing with her
husband and financial assistance had also been rendered to them for
construction of their house as also for starting a business was
sufficient to show that the deceased Venkata Rao intended to provide
something for each of his children. In any event, the High Court having
not arrived at any finding in regard to the intention of Venkata Rao to
purchase the properties in the name of his sons, the impugned judgment
cannot be sustained. Our attention in this connection has also been
drawn to the fact that although the learned trial court has taken into
consideration the fact that the fixed deposit receipts were also
obtained in the name of the defendants and a joint bank account was also
being operated, the High Court has not bestowed any consideration in
this behalf. Jewellery of the family according to the trial judge were
not partitioned but, the High Court has, it was urged, did not consider
the said question at all.9. The learned counsel appearing on behalf of
the respondent on the other hand, would support the impugned judgment.
10. The trial court had framed a
large number of issues. The materials brought on records by the parties
had been taken into consideration by the learned Trial Judge in great
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.
12. The High Court did not deal with
the question thoroughly. It had not taken into consideration the
totality of the circumstances. We, therefore, are of the opinion that in
the fitness of things, the impugned judgment should be set aside and
matter remitted back to the High Court for consideration of the matter
afresh which would meet the interest of justice. As the matter has to be
remitted to the High Court, we have not considered the findings of the
High Court in respect of other items of the property in regard whereto
different conclusions have been arrived at by the courts below. We are
sure, High Court would consider the same in the light of its findings on
the principal issue.
13. For the reasons aforementioned,
the impugned judgment is set aside. The appeal is allowed. The matter is
remitted back to the High Court for consideration of the matter afresh.
In the facts and circumstances of this case, however, there shall be no
order as to costs.
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