Civil Appeal Nos
626  629 of 1971
From the Judgment and Order dated 5 8 1970 of the Rajasthan High Court in RFA No 3160
630 section T Desai and Naunit Lal for the Appellant
P R Mridul B P Sharma Krishna Bhatt and R K Bhatt for the Respondents
The Judgment of the Court was delivered by VENKATARAMIAH J
These two cross appeals by certificate arise out of a suit for possession of a house situate in Bikaner and for damages for use and occupation thereof filed in Civil Original Case No 17 of 1957 on the file of the District Judge Bikaner
The plaintiffs in the suit are the appellants in Civil Appeal No 626 of 1971 and the defendant is the appellant in Civil Appeal No 629 of 1971
The genealogy showing the relationship between the parties is given below Sur Singh      Gad Singh Bharat Singh Bhim Singh Kan Singh  Died in PI Deft  Sept 1955         Duley Dhaney Deep  Singh Singh Singh    Himmat Dalip Singh Singh P2 Died in Sept 56 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 leaving behind him three sons Duley Singh Dhaney Singh and Deep Singh
Dalip Singh the second son of plaintiff No1 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 631 pleaded that the suit house belonged to them by virtue of a patta dated July 12 1940 issued in their names that the defendant 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 younger brother Dalip Singh were also living in the house till the year 1956 that the defendant had refused to receive a notice issued by them in the month of September 1957 calling upon 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 suit house and damages from the defendant
These were briefly the allegations made in the plaint
On the above basis the plaintiffs prayed for a decree for the reliefs referred to above
In 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 plaintiffs were the owners in possession 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 follows 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 had been educated at the expense of the family they were not given any share in the property
Bharat Singh and he settled in Bikaner and lived together as members of joint Hindu family
Bharat Singh died on September 2 1955 leaving the defendant as a surviving coparcener
On his death the defendant became the owner of the properties of Bharat Singh as a member of joint Hindu family 
He further 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 Bikaner were living in the suit house which then belonged to the Maharaja
The defendant filed an application for purchasing the house
The proceedings had not terminated when the defendant left the service of the Maharaja and went to Banaras for higher studies
On his return from Banaras he joined the service of the Maharaja in the civil department of Bikaner
After a long time on account of the joint efforts of Bharat Singh and the defendant the sale of the house was sanctioned
Bharat Singh who was living jointly with him paid the consideration for the sale on November 4 1939 out of the joint income  Thus according to the defendant Bharat Singh and he became its owners from the date of payment of the consideration
He 632 further pleaded that if the patta of the property had been granted in the names of the plaintiffs due to some reasons political and other surrounding circumstances and for the safety of the property it cannot affect the right of the defendant 
It was also stated that Bharat Singh and the defendant had not executed any sale deed in favour of 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 plaintiffs have taken the entire ancestral property of the village
Still they are harassing the defendant due to avarice
The defendant and Thakur Bharat Singh had been doing Government service
So there was always danger or 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 another on the basis of a joint purchase along with Bharat Singh
Even though 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 at 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 Singh on his death being his nearest heirs
In the reply the plaintiffs denied that the defendant was entitled to the suit house as a surviving coparcener on the death of Bharat Singh
They however pleaded that plaintiff No 1 had purchased the suit house out of his income that Bharat Singh used to love plaintiff No 2 as his son  and was thinking of adopting him but he died all of a sudden and that the defendant 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 defendant had any interest in the suit house
On the basis of the oral 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 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 house till September 1956 and that the 633 defendant being their close relative was living in the house not on his own 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 restored to them
Aggrieved by the decree of the trial court the defendant filed an appeal before the High Court of Rajasthan in Civil First Appeal 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 his 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 issue of the patta the State Government ceased to be its owner
It is also not disputed 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 5000
On January 11 1930 the defendant had made an application a certified 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 house 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 Gov 634 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 sale of the suit house for a sum of Rs 5000
Exhibit A 118 is the certified copy of the said order
Exhibit A 120 is a certified copy of the order of Tehsil Malmandi showing that a sum of Rs 5000 had 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
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
The plaintiffs who claimed title to the property under the patta in the course of the trial attempted to prove that the sum of Rs 5000 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 given 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 PW 2 and Kesri Singh PW 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 jewels 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 has been rejected both by the trial court and the High Court
On going 635 through the evidence adduced by the defendant we feel that there is no reason for us to disturb the concurrent 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 consideration 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 is 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 to prove in the trial court that the money paid for purchasing the house came out of their funds they cannot in the circumstances of this case be 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 may be made here to the decision of this Court in Bhagwati Prasad vs Shri Chandramaul1 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 either directly or by necessary implication it would not be open to the said party to 636 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 case 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 pleadings made by the parties
But where the substantial matters relating to the title of both parties to the suit are touched though in directly or even obscurely in the issues and 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 Trojan  Co Ltd vs RM
N N Haggappa Chettiar1 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 Mussajee Mookerdum vs Hafiz Boo2 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 conclusion that she had failed to prove that 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 637 paid by her since it had been established in the case that her mother intended to transfer the beneficial interest in the property in her favour
This is borne out from the following passage at page 95 In 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 question 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 conclusion 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 should himself acquire the beneficial interest in the property
There is however an exception to the above rule of presumption made by the English 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 the real owner of the property in question
The doctrine of advancement is not in vogue in India
638 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 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 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
The principle underlying the former case is also statutorily recognized in section 82 of the which provides that where property is transferred to one person for a consideration paid or provided by another person and it appears that such other person did not intend 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 vs The Commissioner of Income Tax Madras1 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 639 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 his property to B without intending that his title should cease or pass to B
The fundamental 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 question 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 vs Fakhr Jahan Begum  Ors1 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 no concern
Upon her marriage the deed was sent for the inspection of her father in law
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 Council 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 course 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 and though there may be no presumption of advancement in 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 clearly a representation that the property was hers and their Lordships agree with the learned Judges in the conclusion to which they came
 640 In Manmohan Dass  Ors
vs Mr Ramdei  Anr
1 Lord Macmillian 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 subsequent conduct  Dalip Singh vs Nawal Kanwar 35 IA 104 PC always remembering that 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
vs Mst
Bibi Hazara  Ors2 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 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 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 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 and 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 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 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 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
Now we shall refer to the facts of the present case
When the suit house was purchased from the Maharaja of Bikaner 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 year 1939 and his younger brother Dalip Singh was about two years old
These two children were living with Bharat Singh
Bhim Singh plaintiff No 1 was almost in indigent condition
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 Bharat Singh
Even though the defendant stated in the written statement that the patta 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 circumstances which compelled Bharat Singh to secure the patta in the names of the plaintiffs though at one stage he stated that it was under his advice that Bharat Singh got the patta in the names of the plaintiffs
Bharat 642 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 arguments that he had taken the patta in the names of the plaintiffs 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 corroborated by the fact that the patta was produced by the plaintiffs before the Court
In the course of his evidence the defendant no doubt stated that the patta had been stolen by plaintiff No 2 from the suit house during the twelve days following the death of Bharat Singh when the keys of Bharat Singh s residence had been handed over to plaintiff No 2 by the defendant
It is difficult to believe the above statement of the 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 defendant 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 the son of the defendant was keeping watch over him
That letter has 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
Plaintiff 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 contained his name
The defendant does not appear to have sent any reply to Exhibit A 124 nor did he call upon the plaintiffs to return the patta to him
He did not also file a complaint stating that the patta had been stolen by plaintiff No 2
We are of the view that there is no reason to disbelieve the evidence of plaintiff No 2 that the patta had been handed over to him by Bharat Singh on his passing the BSc
examination
This conduct of Bharat Singh establishes that it was the intention of Bharat Singh when he secured the patta from the State Government in the names of the plaintiffs the plaintiff No 2 whom he loved should become the owner
It is no doubt true that the name of plaintiff No 1 is also included in the patta
It may have been so included by way 643 of abundant caution as plaintiff No 2 was a minor when the patta was issued
The above circumstance is similar to the one which persuaded their Lordships of the Privy Council in the case of Mohammad Sadiq Ali Khan supra to hold that the property involved in that case belonged to the person in whose favour the conveyance had been executed
The second circumstance which supports the view that Bharat Singh intended that plaintiff No 2 should become the owner of the suit house is proved by the declarations made by Bharat Singh regarding the title to the suit house
Jaswant Singh PW 2 was a former Prime Minister of the State of Bikaner
His wife was a cousin of plaintiff No 1 Bharat Singh and the defendant
Being a close relative of Bharat Singh who was also the Aid de Camp of the Maharaja of Bikaner he was quite intimate with Bharat Singh who used to discuss with him about his personal affairs
PW 2 has stated in the course of his evidence that Bharat Singh thought it proper to purchase the house in the name of plaintiff No 2 and that he intended to make plaintiff No 2 his heir and successor
He has also stated that Bharat Singh had expressed his desire to give all his property to plaintiff No 2 by a will and that he had told Kesri Singh PW 3 just a day prior to his Bharat Singh s death that a will was to be executed
This statement of Jaswant Singh PW 2 is corroborated by the evidence of Kesri Singh PW 3 whose wife was also a cousin of Bharat Singh plaintiff No 1 and the defendant
The relevant portion of the deposition of Kesri Singh PW 3 reads thus I came from Jaipur to Bikaner by train one day before the death of Bharat Singh and when I was returning after a walk I found Bharat Singh standing at the gate of his house
I asked Bharat Singh to accompany me to my house to have tea etc
Bharat Singh came with me to my house
Bharat Singh told me at my house that he was not quite all right and that he might die at any time
He wanted to execute a will
He further told me that his house really belonged to Himmat Singh
It has been purchased in his name
He wanted to give even other property to Himmat Singh
By other property which Bharat Singh wanted to give to Himmat Singh was meant Motor car bank balance and the presents which he had
The house regarding which my talk took place with Bharat Singh at my house was the house in dispute
 There is no reason to disbelieve the evidence of these two witnesses
Their evidence is corroborated by the deposition of Dr Himmat Singh DW 6 who was the Secretary of a Club in Bikaner 644 of which Bharat Singh was a member
He was examined by the defendant himself as his witness
In the course of his cross examination Dr Himmat Singh DW 6 referred to what Bharat Singh had told him a few months prior to his death
The substance of his deposition is found in the judgment of the trial court the relevant portion of which reads thus DW 6 Dr Himmat Singh is the Secretary of the Sardul Club Bikaner
He is the Senior Eye Surgeon in the Government Hospital Bikaner
He has stated that Bharat Singh was the member of Sardul Club
A sum of Rs 4256 remained outstanding against him till the year 1955
This amount was received on 28 10 1955
He has said that he does not know who deposited this amount
On the merits of the case he has stated that he intimately knew Bharat Singh and members of his family
Bhim Singh and his sons Himmat Singh and Dalip Singh used to live in this house
Bharat Singh took this house for Bhim Singh and Himmat Singh
Four months before his death Bharat Singh told the witness that he had already taken the house for Bhim Singh and Himmat Singh and that whatever else would remain with him shall go to them
Dr Himmat Singh refutes the defendant s stand and supports the plaintiff s case
 It was argued on behalf of the defendant that there is some variation between the deposition of Dr Himmat Singh DW 6 and the above passage found in the judgment of the trial court and that the evidence of DW 6 should not be believed as he had turned hostile
The deposition of Dr Himmat Singh DW 6 was read out to us
It was also brought to our notice that an application had been made by the defendant to treat DW 6 as hostile and that it had not been granted by the trial court
Even though there is a slight variation between what is stated by DW 6 and what is contained in the judgment of the trial court with regard to certain details we do not feel that the said variation is of any substantial nature
The evidence of DW 6 suggests that Bharat Singh was of the view even during his life time that the suit house belonged to plaintiffs and not to himself
Even though an application had been made by the defendant to treat DW 6 as hostile we feel that this part of the evidence of DW 6 cannot be rejected on that ground since it is consistent with the evidence of Jaswant Singh PW 2 and Kesri Singh PW 3
It is seen from the judgment of the High Court that the effect of the statement of Kesri Singh PW3 in his deposition that Bharat Singh 645 had told him that the suit house was the property of plaintiff No 2 has not been considered
The High Court while dealing with the evidence of Jaswant Singh PW 2 and Kesri Singh PW 3 laid more emphasis on those parts of their evidence where there was a reference to the alleged utilisation of the jewels or moneys belonging to the plaintiffs by Bharat Singh for the purpose of acquiring the suit house
The High Court has also observed in the course of its judgment that neither of them had stated that Bharat Singh had told them that he was purchasing or had purchased the suit house as a gift to Bhim Singh and Himmat Singh
The above observation does not appear to be consistent with the evidence of Kesri Singh PW 3 discussed above
It was however contended on behalf of the defendant that the statement made by Bharat Singh in the year 1955 could not be accepted as evidence in proof of the nature of the transaction which had taken place in the year 1940
It was contended that the question whether a transaction was of a benami nature or not should be decided on the basis of evidence about facts which had taken place at or about the time of the transaction and not by statements made several years after the date of the transaction
In support of the above contention the learned counsel for the defendant relied on the decision of the House of Lords in Shephard  Anr
vs Cartwright  Anr1
The facts of that case were these In 1929 a father with an associate promoted several private companies and caused a large part of the shares for which he subscribed to be allotted in varying proportions to his three children one of them being then an infant
There was no evidence as to the circumstances in which the allotments were made
The companies were successful and in 1934 the father and his associate promoted a public company which acquired the shares of all the companies
The children signed the requisite documents at the request of their father without understanding what they were doing
He received a cash consideration and at various times sold and received the proceeds of sale of their shares in the new company
He subsequently placed to the credit of the children respectively in separate deposit accounts the exact amount of the cash consideration for the old shares and round sums in each case equivalent to proceeds of sale of the new shares
Later he obtained the children s signatures to documents of the contents of which they were ignorant authorising him to withdraw money from these accounts and without their knowledge he drew on the accounts which were by the end of 1936 exhausted part of the sums withdrawn being dealt with for the benefit of the children but a large part remaining unaccounted for
He died in 646 1949
In the action filed against his executors it was contended by them that the subsequent conduct of the father showed that when the shares were got allotted by him in the names of the children in 1929 he did not intend to make them the real owners of the shares and that the presumption of advancement had been rebutted
This contention was met by the plea that the subsequent conduct of the father in dealing with the shares as if they were his own could not be relied upon either in his favour or in favour of his representatives executors and administrators to prove that he had no intention to create any beneficial interest in his children in the shares in question when they were obtained
On these facts the House of Lords held that the subsequent acts and declarations of the father could not be relied upon in his favour or in favour of his executors to rebut the presumption of advancement
Viscount Simonds in the course of his judgment observed thus My Lords I do not distinguish between the purchase of shares and the acquisition of shares upon allotment and I think that the law is clear that on the one hand where a man purchases shares and they are registered in the name of a stranger there is a resulting trust in favour of the purchaser on the other hand if they are registered in the name of a child or one to whom the purchaser then stood in loco parentis there is no such resulting trust but a presumption of advancement
Equally it is clear that the presumption may be rebutted but should not as Lord Eldon said give way to slight circumstances Finch vs Finch  It must then be asked by what evidence can the presumption be rebutted and it would I think be very unfortunate if any doubt were cast as I think it has been by certain passages in the judgments under review upon the well settled law on this subject
It is I think correctly stated in substantially the same terms in every text book that I have consulted and supported by authority extending over a long period of time
I will take as an example a passage from Snell s Equity 24th ed p 153 which is as follows The acts and declarations of the parties before or at the time of the purchase or so immediately after it as to constitute a part of the transaction are admissible in evidence either for or against the party who did the act or made the 647 declaration
But subsequent declarations are admissible as evidence only against the party who made them and not in his favour
 The above passage we are of the view does not really assist the defendant in this case
What was held by the House of Lords in the case of Shephard  Anr
supra was that the presumption of advancement could be displaced only by a statement or conduct anterior to or contemporaneous to the purchase nor could any conduct of the children operate against them as admissions against their interest as they acted without the knowledge of the facts
In the instant case we are concerned with the conduct and declarations of Bharat Singh subsequent to the transaction which were against his interest
The evidence regarding such conduct and declarations is not being used in his favour but against the legal representative of Bharat Singh ie the defendant who would have become entitled to claim a share in the suit house if it had formed part of his estate
Such conduct or declaration would be admissible even according to the above decision of the House of Lords in which the statement of law in Snell s Equity to the effect but subsequent declarations are admissible as evidence only against the party who made them and not in his favour  is quoted with approval
The declarations made by Bharat Singh would be admissible as admissions under the provisions of the Indian Evidence Act being statements made by him against his proprietary interest under section 21 and section 323 of the Indian Evidence Act The defendant cannot also derive any assistance from the decision of this Court in Bibi Saddiqa Fatima vs Saiyed Mohammad Mahmood Hasan1
The question before the Court in the case of Bibi Siddiqa Fatima supra was whether a property which had been purchased by a husband in his wife s name out of the fund belonging to a waqf of which he was a Mutawalli could be claimed by the wife as her own property
This Court held that the wife who was the ostensible owner could not be treated as a real owner having regard to the fact that the purchase money had come out of a fund belonging to a waqf over which her husband who was the Mutawalli had no uncontrolled or absolute interest
In reaching the above conclusion this Court observed thus  We may again emphasize that in a case of this nature all the aspects of the benami law including the 648 question of burden of proof cannot justifiably be applied fully
Once it is found as it has been consistently found that the property was acquired with the money of the waqf a presumption would arise that the property is a waqf property irrespective of the fact as to in whose name it was acquired
The Mutawalli by transgressing the limits of his power and showing undue favour to one of the beneficiaries in disregard to a large number of other beneficiaries could not be and should not be permitted to gain advantage by this method for one beneficiary which in substance would be gaining advantage for himself
In such a situation it will not be unreasonable to say rather it would be quite legitimate to infer that it was for the plaintiff to establish that the property acquired was her personal property and not the property of the waqf
 It was next contended that the defendant had spent money on the repairs and reconstruction of the building subsequent to the date of the patta and that therefore he must be held to have acquired some interest in it
We have gone through the evidence bearing on the above question
We are satisfied that the defendant has not established that he had spent any money at all for construction and repairs
Even if he has spent some money in that way with the knowledge of the actual state of affairs it would not in law confer on the defendant any proprietary interest in the property
It is also significant that neither Gad Singh during his life time nor his children after his death have laid any claim to a share in the suit house which they were entitled to claim alongwith the defendant if it was in fact a part of the estate of Bharat Singh
Their conduct also probabilities the case of the plaintiffs that Bharat Singh did not intend to retain for himself any interest in the suit house
On the material placed before us we are satisfied that the transaction under which the patta was obtained was not a benami transaction and that Bharat Singh had acquired the suit house with his money with the intention of constituting plaintiff No 2 as the absolute owner thereof
Plaintiff No 2 is therefore entitled to a decree for possession of the suit house
The trial court passed a decree directing the defendant to pay damages for use and occupation in respect of the suit house at the rate of Rs 50 per month from September 20 1956 till the 649 possession of the house was delivered to the plaintiffs
The operation of the decree of the trial court was stayed by the High Court during the pendency of the appeal before it
In view of the decree passed by the High Court the defendant has continued to be in possession of the suit house till now
Nearly twenty years have elapsed from the date of the institution of the suit
In the circumstances we are of the view that the defendant should be directed to pay mesne profits at the rate of Rs 50 per month till today and that an enquiry should be made by the trial court under Order 20 Rule 12 of the Code of Civil Procedure to determine the mesne profits payable by the defendant hereafter till the date of delivery of possession
In the result the decree passed by the High Court is set aside and a decree is passed directing the defendant to deliver possession of the suit house to plaintiff No 2 and to pay mesne profits to him at the rate of Rs 50 per month from September 20 1956 till today and also to pay future mesne profits as per decree to be passed by the trial court under Order 20 Rule 12 of the Code of Civil Procedure
For the foregoing reasons Civil Appeal No 626 of 1971 is accordingly allowed with costs throughout
Civil Appeal No 629 of 1971 is dismissed but without costs
CA 62671 allowed
PBR CA 62971 dismissed


Summary:
Plaintiff No 1 and plaintiff No 2 were father and son while defendant was the brother of plaintiff No 1
The plaintiffs in their suit against the defendant claimed that the suit house in which the defendant was living belonged to them by virtue of a patta issued in their names
They alleged that the deceased brother of plaintiff No 1 who remained a bachelor till his death loved plaintiff No 2 as his 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 hand claimed that he and his deceased brother lived as members of a joint family after the partition of their family that as a result of the joint efforts of himself and his deceased brother the Maharaja of Bikaner sanctioned sale of the house to them that the purchase money was paid out of their joint income but that the patta was granted in the names of the plaintiffs due to political reasons and therefore the plaintiffs were at the most benamidars
The trial court held that the house was acquired by the deceased brother from the Government of Bikaner for the plaintiffs and the patta was granted in favour of the plaintiffs and that they were in its possession till 1956
It rejected the defendant s claim that it was acquired with the joint funds of himself and his deceased brother
On appeal the High Court held that the house had 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 and on his death plaintiff No 1 and the defendant succeeded jointly to the estate as his heirs  HELD The transaction under which the patta was obtained was not a benami transaction
The house was acquired 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 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 a real owner
The second case which is loosely termed 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 is that whereas in the former 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 629 contributed the purchase money 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 question whether a transaction is a benami transaction or not 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 statutorily recognized in section 82 of the Indian Trust Act 1882
638B E Meenakshi Mills Madurai vs The Commissioner of Income Tax Madras  at p 722 Mohammad Sadiq Ali Khan vs Fakhr Jahan Begam  Ors
59 IA 1 Manmohan Das  Ors
vs Mr Ramdai  Anr
AIR 1931 P C 175 Jaydayal Poddar deceased through his LRs  Anr
vs Mst
Bibi Hazra  Ors
referred to 2
The principles 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 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 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
641C E In the instant case the deceased brother was a bachelor
On the death of the wife of plaintiff No 1 plaintiff No 2 and his younger brother were staying with the deceased brother
Plaintiff No 1 was almost in an indigent condition while defendant practised law for some time and later entered into service
The patta for the house was issued in the name of plaintiffs nos
1 and 2 at the request of the deceased brother for the benefit of plaintiff No 2 and was handed over to him after he completed his education
This conduct of the deceased brother established that it was his intention that when he secured the patta from the State Government in the names of plaintiffs it was his intention that plaintiff No 2 whom he loved should become the owner
641F H 3
The declaration made by the deceased who had contributed the purchase money subsequent to the date of purchase to the effect that the property belonged to plaintiff No 2 was admissible in evidence either under section 323 or section 21 of the Indian Evidence Act to prove his intention that he intended that plaintiff No 2 should become its owner
647E Shephard  Anr
vs Cartwright  Anr
  distinguished