1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO. 433 OF 2009 1. Smt. Laxmibai Deepak Thakkar, 2. Parin Deepak Thakkar (Minor), 3. Abhishek Deepak Thakkar (Minor), ....Appellants. Versus 1. Vasantdada Patil Sahakari Sakhar Karkhana Through its Executive Director Vithewadi, Taluka Kalwan, Dist. Nashik. 2. Jai Jagdish Sugar Through Deepak Jagdish Thakkar, R/o. Paras Bafna Market, Oppo. Municipal Corporation, Dhule. ....Respondents. Shri. S.P. Shah, Advocate for the appellants. Shri. Amol Sawant, Advocate for the respondent No. 1. Shri. Amit Mukhedkar, Advocate for the respondent No. 2. CORAM : R.K. DESHPANDE, J. [Date of reserving the judgment : 23/09/2009 Date of pronouncement of judgment : 14/10/2009 ] ORAL JUDGMENT : 1. This appeal, filed under section 96 of the Code of Civil Procedure, challenges order dated 17.10.2008, passed by the learned Principal 2 District Judge, Dhule below Exhs. 1, 16 and 83 in Special Darkhast No. 1/2006, confirming the order of attachment of the properties bearing Nos. 113/2, 113/3 and 113/4 to the extent of half share, which is sub- divided and mentioned as 113/2-B, 113/3-B and 113/4-B, situated at village Songir, Taluka and District Dhule and further ordering that the said properties to be sold in public auction for recovery of the decreetal amount. This appeal is preferred by the objectors, who claimed to be the owners of the properties in question and the respondent No. 1, Vasant Dada Patil Sahakari Sakhar Karkhana, is the decree holder whereas the respondent No. 2 Dipak Jagdish Thakkar is the judgment debtor. The parties shall herein be referred to as per their original status. The appellants shall be referred to as the "objectors", the respondent No. 1 shall be referred to as the "decree holder" and the respondent No. 2 shall be referred to as the "judgment debtor". The facts leading to the case are as under. 2. There was some dispute in between the decree holder and the judgment debtor, which culminated into an arbitration award dated 28th of August 2003, holding the judgment debtor liable to pay an amount of Rs. 1,20,92,051.40 ps. with interest from 1.3.2003 and the cost of Rs. 1,40,000/-. It is claimed by the decree holder, that the said amount as on this date comes to Rs. 2.5 crores, approximately, including the interest. This award is the subject matter of challenge in arbitration case No. 9/2009, filed under section 34 of the Arbitration and Conciliation 3 Act, 1996 by the judgment debtor and the said proceedings are pending as on this date. However, in this appeal, it is of no concern. 3. The decree holder filed a Special Darkhast No. 1/2006 in the Court of District Judge at Dhule for recovery of an amount of Rs. 1,75,45,289.40 ps. on 10.3.2006 against M/s. Jagdish Sugar through its proprietor Deepak Jagdish Thakkar, Dhule (the judgment debtor). In the said Darkhast, the decree holder filed an application dated 28.4.2006 (Exh. 16) for attachment of following properties, which according to the decree holder, although stand in the name of wife, sons and relative of the judgment debtor, the same were purchased from and out of the income of the judgment debtor. The said properties were mentioned in the application, Exh. 16, as under :- Sr. No. Name of village Gat No. Area Hec. R. Name Relation 1. Songir, Tq. Dist. Dhule 113/2B 1.63 Sou. Laxmi Deepak Thakkar Wife 2. Songir, Tq. Dist. Dhule 113/3B 1.96 Chi. Parin Deepak Thakkar U/g. Laxmi Deepak Thakkar Son 3. Songir, Tq. Dist. Dhule 113/4B 1.98 Chi. Abhishek Deepak Thakkar U/g. Laxmi Deepak Thakkar Son 4. Songir, Tq. Dist. Dhule 113/1 3.26 Shri. Shantilal Vallabhji Thakkar Chi. Kiran Paresh Thakkar U/g. Pooja Paresh Thakkar Relative Nephew 5. Songir, Tq. Dist. Dhule 113/2A 1.63 Sou. Manorama Shantital Thakkar Relative 4 6. Songir, Tq. Dist. Dhule 113/3A 1.97 Shri. Manoj Kantilal Thakkar Relative 7. Songir, Tq. Dist. Dhule 113/4A 1.96 Shri. Kantilal Vallabhji Thakkar Relative The learned District Judge, passed an order below Exh. 16 on 15.1.2007, issuing show cause notices to all the persons, mentioned above, as to why the properties specified above, should not be attached. 4. The objectors filed their objections in writing to the attachment of the properties on 22.3.2007 and on 4.6.2007. The learned District Judge, Dhule passed an order below Exh. 16, for provisional attachment of the said properties and issued show cause notices to the objectors, as to why the said properties should not be sold in public auction, for recovery of the said amount. The objectors filed their objections, in respondence to the show cause notice on 1.10.2007 (Exh. 83). The learned Principal District Judge, passed an order on 31.10.2007, that unless objections are determined, no order for sale of the said properties can be passed and directed the parties to lead evidence on the question, whether the said properties are owned by the objectors. 5. The decree holder filed copies of three registered sale deeds in respect of the properties sought to be attached and sold and filed an affidavit that the said documents being public documents, the same are admissible in evidence and should be given exhibit numbers. All the three sale deeds are dated 21.7.2007. The decree holder also filed copies 5 of record of rights and 7/12 extracts in respect of the said properties. The decree holder filed an affidavit dated 28.11.2007, in the form of evidence of one Bhausaheb Gulabrao Deshmukh, an employee in the factory of the decree holder. Initially, he was cross examined on 10.1.2008 and subsequently, on 15.10.2008. The objectors filed an affidavit dated 28.1.2008 in the form of evidence of the objector, Sou. Laxmi Deepak Thakkar and she was cross examined by the decree holder on 7.2.2008. At this stage, it may be pointed out that there were some proceedings taken to this Court, against some orders passed in the said Darkhast, which were decided. However, the same are not of much relevance now and hence, the same are not being referred to. 6. The learned Principal District Judge, Dhule by his impugned order dated 17.10.2008 passed below Exhs. 1, 16 and 83 in Special Darkhast No. 1/2006, allowed Exh. 16 (application for attachment) and confirmed the provisional order of attachment and directed sale of the properties mentioned as 113/2-B, 113/3-B and 113/4-B, situated at village Songir, Taluka and District Dhule by public auction for the recovery of the decreetal amount. This order, passed under the provisions of Order 21, Rule 58 of the Code of Civil Procedure, is the subject matter of the present appeal. 7. Shri. S.P. Shah, the learned senior counsel, appeared for the appellants/objectors, Shri. Amol Sawant appeared for the decree holder 6 (respondent No.1) and Shri. Amit Mukhedkar, the learned counsel, appeared for the respondent No. 2, the judgment debtor. All the parties agreed that the matter can be finally decided at the stage of admission itself and accordingly, the matter was posted for hearing by consent on 23rd of April 2009. Thereafter, also the matter was adjourned from time to time, at the request of the concerned parties and on 7th of September 2009, this Court passed an order as under :- "CORAM: R.K. DESHPANDE, J. DATED: 7th September, 2009. P.C.: 1. The parties agreed that this matter can be decided finally at the stage of admission itself. The parties further agree that it is not necessary to call for the R. & P. of the trial Court, for the reasons that, the parties relied upon the evidence of two witnesses, copy of their depositions are placed on record; the document which is material is the sale deed, copy of which is placed on record; the 7/12 extract filed on the record of the trial Court are also filed on the record. These documents are not disputed. These are the only documents which are necessary for deciding the present appeal and the matter can be proceeded with for final hearing. 2. Hence, put up this matter by consent of parties at 11.9.2009 at 2.30 p.m." The matter was, thus, heard on 23.9.2009 at length. Admit. The learned counsel appearing for the respective parties waived service of notice and agreed for final disposal of the matter at the stage of admission. The matter is accordingly finally heard. 8. The decree holder produced 3 copies of 3 registered sale deeds on 7 record which are not disputed by any of the parties. Similarly, a copy of record of rights in respect of said properties and 7/12 extracts, were also placed on record, which are also not disputed by any of the parties. It is also not disputed that all the sale deeds are dated 21.7.2001. The first sale deed pertained to purchase of land Gat No. 113/2, admeasuring 3 Hectors 26 R. for an amount of Rs. 2,77,750/- and the purchasers are Sou. Manorama Shantilal Thakkar, resident of Gultekdi, Pune and Sou. Laxmi Deepak Thakkar, resident of Dhule (objectors). The second sale deed pertained to Gat No. 113/3, admeasuring 3 Hectors 93 R. for an amount of Rs.2,77,750/- and the purchasers are Shri. Manoj Kantilal Thakkar and Chi. Parit Deepak Thakkar (minor) through his natural guardian Sou. Laxmi Deepka Thakkar, resident of Dhule. The third sale deed pertained to Gat No. 113/4 admeasuring 3 Hectors 94 R. for an amount of Rs. 2,77,750/- and the purchasers are Kantilal Wallabji Thakkar and Shri. Abhished Deepak Thakkar (minor), through his natural guardian Sou. Laxmi Deepak Thakkar (objector), resident of Dhule. It is not in dispute that the properties which are subject matter of all these three sale deeds, were partitioned in between the two purchasers, whose names are mentioned in the sale deed, as per the deed of partition dated 13.8.2005, which is recorded in the record of rights and 7/12 extracts of the suit properties, wherein Sou. Laxmi Deepak Thakkar is shown to be the owner of Gat No. 113/2-B, admeasuring 1 Hector 63 R., Shri. Parit Deepak Thakkar, owner of the Gat No. 113/3B, admeasuring 1 Hector 62 R. and Abhishek Deepak Thakkar, owner of Gat No. 113/4-B, 8 admeasuring 1 Hector 63 R. 9. By the impugned order dated 25.3.2008, the learned Principal District Judge, Dhule has held that the properties i.e. Gat No. 113/2B, 113/3-B and 113/4-B, situated at village Songir, Taluka and District Dhule, are not the self-acquired properties of the objectors, as they have failed to prove any independent source of income to purchase the said properties and the said properties are purchased by the judgment debtor himself in the name of his wife and children. On the basis of these finding, the order of attachment is confirmed and the properties are directed to be put on sale by public auction. This decision by the learned Principal District Judge, Dhule operates as if it is a decree in view of the provisions of Order 21, Rule 58 of Civil Procedure Code. 10. Shri. Shah, the learned counsel appearing for the appellants assailed the aforesaid finding recorded by the learned District Judge on the ground that the learned District Judge failed to appreciate that the objectors had established the independent source of income, through which the properties were purchased jointly, alongwith other relatives and the hypothesis assumed by the Trial Court, that the properties were purchased from and out of the funds, provided by the judgment debtor, is not correct. He further urged that even if it is assumed that the objectors have failed to prove their independent source of income to purchase the properties in question, that by itself is not enough to infer 9 that the judgment debtor provided funds, to purchase the properties. He further urged that when the properties are standing in the names of objectors in the sale deeds as well as in the record of rights and 7/12 extracts, the burden of proof was upon the decree holder by leading cogent and reliable evidence on record to establish that properties were purchased from and out of the funds provided by judgment debtor and the sale deeds were nominal in the name of objectors. He further urged that assuming that the funds were provided by the judgment debtor, the transaction does not become benami, if it is for the benefit of minors and the other members of the family. He urged that there was no intention on the date of purchase of the properties, to circumvent any debts outstanding against the judgment debtor and the decree holder has failed to discharge the burden by leading positive evidence. Shri. Shah, in support of his contentions, relied upon the following decisions of the Apex Court. (1) A.I.R. 1965 SC 1364, Surasaibalini Debi V. Phandindra Mohan Majumdar, (2) (2004) 7 Supreme Court Cases 233, Valliammal (D) by L.Rs. Vs. Subramaniam and others, and (3) (1980) 2 Supreme Court Cases 327, Gapadibai Vs. State of Madhya Pradesh. 11. As against the aforesaid contentions, Shri. Amol Sawant, the learned counsel appearing for the decree holder, supported the findings 10 recorded by the learned District Judge in the impugned order. He relied upon the affidavit placed on record by way of evidence, by the decree holder and also relied upon the cross examination of Sou. Laxmi Thakkar, the objector. He has urged that in all the sale deeds the judgment debtor has signed as witness and has actively participated in the process of sale. He has urged that there is nothing on record to show that the objectors had an independent source of income and the properties were in possession of the judgment debtor right from the date of purchase. He relied upon the decision of the Allahabad High Court reported in A.I.R. 2001 ALLAHABAD 366, Kuldeep Sharma and others Vs. Satyendra Kumar Sharma and others. 12. In view of the provisions of order 21, Rule 58 of the Code of Civil Procedure, it is apparent that the objections to the attachment and sale of the properties raised by the objectors, is required to be adjudicated by holding fulfledged trial and asking the parties to lead the evidence in support of their respective contentions. The adjudication of objections under Order 21, Rule 58 has been given force of a decree. In respect of burden of proof, it is not necessary to refer to the catena of decisions of the Apex Court, except the one relied upon by the learned counsel for the appellant in Valliammal's case decided by the Apex Court, cited supra, which directly deals with the point. Paragraph Nos. 12 and 13 of the said judgment, which are relevant, are reproduced below :- "12. There is a presumption in law that the person 11 who purchases the property is the owner of the same. This presumption can be displaced by successfully pleading and proving that the document was taken benami in the name of another person for some reason, and the person whose name appears in the document is not the real owner, but only a benami. Heavy burden lies on the person who pleads that the recorded owner is a benami- holder. 13. This Court in a number of judgments has held that it is well established that burden of proving that a particular sale is benami lies on the person who alleges the transaction to be a benami. The essence of a benami transaction is the intention of the party or parties concerned and often, such intention is shrouded in a thick veil and 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 of surmises, as a substitute for proof. Refer to jaydayal Poddar v. Bibi Hazra, Krishnanand Agnihotri v. State of M.P., Thakur Bhim Singh V. Thakur Kan Singh, Pratap Singh v. Sarojini devi and Heirs of Vrajal J. Ganatra v. Heirs of Parshottam S Shah. It has been held in the judgments referred to above the question whether a particular sale is a benami or not, is largely one of fact, and for determining the question no absolute formulas or acid test, uniformly applicable in all situations can be laid. After saying so, this Court spelt out the following six circumstances which can be taken as a guide to determine the nature of the transaction : "(1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale; and (6) the conduct of the parties concerned in 12 dealing with the property after the sale." (Jaydayal Poddar V. Bibi Hazra, SCC p. 7, para 6)." Thus, there is a presumption in law that a person, who purchases the property is the owner of the same and this presumption can be displaced by successfully leading and proving that the document was taken benami in the name of another person for some reasons and the person, whose name appears in the document is not real owner, but only a benami. Heavy burden lies on the person, who pleads that the recorded owner is a benami holder. The learned counsel for the decree holder does not dispute this proposition and states that such a burden has been discharged by the decree holder. It is not in dispute that the objectors are the wife and children of the judgment debtors. In the sale deeds produced on record, in respect of the properties in question in the present case, the objectors are shown as the joint owners of the properties, along with other relatives as pointed out in earlier paras. Hence, the presumption would be that the objectors are the owners of the properties and not the judgment debtor. 13. In view of the aforesaid judgment of the Apex Court, what sort of evidence is required to be brought on record by the decree holder, is required to be seen, as observed by the Apex Court. The essence of benami transaction is the intention of the party or parties concerned and often, such intention shrouded in a thick veil which cannot be easily pierced through and would not justify the acceptance of mere 13 conjectures or surmises, as a substitute for proof. Mere assertion that the transaction to be benami is not enough. In the instant case, the documentary evidence clearly established that the objectors are the owners of the property and the evidence led by the decree holder to discharge the burden of proof, is upon the person, who states on oath that the objectors had no independent source of income and that the properties were purchased from and out of the funds provided by the judgment debtor. There is absolutely no evidence brought on record to establish the source from which the purchase money came to the objectors, the nature and possession of the property after the purchase and the motive, if any, for giving the transaction a benami colour. It is urged, that the judgment debtor was knowing, that he would suffer an award of arbitration and hence, the properties were purchased in the name of objectors. In this respect, it is apparent from the sale deeds in question that the earnest money was paid on 2.7.2001 and the properties were purchased on 21.7.2001. The transaction, which is the subject matter of dispute of arbitration award between the decree holder and the judgment debtor, was entered into on 30.10.2001 and the arbitration award was passed on 28.3.2003. Thus, on the date of purchase of the property, it cannot be said that judgment debtor had incurred some liabilities or debts, to circumvent which, the properties were purchased in the name of the objectors. Although, it is urged that the judgment debtor has been looking after the properties in question, the same is contrary to the evidence on record. The record of rights and 14 7/12 extracts read with the evidence of the objectors Sou. Laxmi clearly establish that the properties were being looked after by her. There is nothing on record which warrants recording of findings and to draw the conclusion that the purchase of the properties in question, was infact by the judgment debtor in the name of the objectors. In the judgment of the Apex Court referred to above, it was a case where the husband had been claiming that the properties standing in the name of his wife, were benami and the properties were actually purchased from and out of the funds provided by him. It was held that the source of money was not traceable to the plaintiff. The said judgment, therefore, clearly applies to the facts of this case and it has to be held that the decree holder has failed to discharge its burden to establish that the properties in question were purchased by the judgment debtor in the name of the objectors. 14. The most significant feature of the properties in question involved in the present case is that it was purchased jointly either by the wife of the judgment debtor or by his children through the wife, jointly along with the other family members, who are not concerned with the transaction. It has been brought on record that subsequently, on 30.10.2005, there was a partition in respect of the properties in between the joint owners. The Apex Court, in its decision reported in A.I.R. 1965 SC 1364, Surasaibalini Debi v. Phanindra Mohan Majumdar, has considered the question of benami transactions involved therein. Although it was held that the benami transaction was proved, it was 15 observed that mere proof of the source of the money would not finally establish the benami nature of the defendant's title. It was further held that even where the plaintiff purchases property with his own funds in the name of "B", the concerned circumstances, the mode of enjoyment might still indicate that it was intended to be gift to "B" and it would then not be a case of benami . Notwithstanding the fact that the purchase money did not proceed from the defendant. The Apex Court relied upon some portion in Mayn's Hindu Law, wherein it was stated that while the source from which the money came is undoubtedly valuable test, it cannot be considered to be a sole or conclusive criterion and the question, whether the transaction was benami or not, will have to be decided on the basis of the intention of the parties and the circumstances. The said judgment, therefore, clearly supports the objectors. 15. In another decision of the Apex Court relied upon by the learned counsel for the objectors which is reported in (1980) 2 Supreme Court Cases 327, Gapadibai's case cited supra, the Government attached the house belonging to the the plaintiff for recovery of dues, owing to her husband. The plaintiff claimed the release of the house by proving by registered sale deed as well as witnesses and documents that she and not her husband, was the owner of the house and also by explaining the source of price paid by her for the purchase of house. It was held that the same was sufficient to raise a presumption in favour of the plaintiff and 16 the onus was upon the State to adduce evidence to displace the presumption. It was held that in the absence of any specific plea of the State that the house was purchased by the plaintiff's husband through benami transaction in the plaintiff's name or that the house belonged to her husband and was sold to her with the intention to defeat the creditors of the husband, the plaintiff's claim must be sustained. Para (3) of the said judgment, which is relevant, is reproduced below :- 3. It was suggested by the State that plaintiff was really a benamidar for defendant 5.