CM(M) 633/2004 & RFA 416/2002 Page 1 of 28 * IN THE HIGH COURT OF DELHI Judgment reserved on : October 03, 2008 % Judgment delivered on : October 20, 2008 + CM(M) 633/2004 PREMA DEVI RASTOGI ..... Petitioner Through: Mr. Davinder Singh, Sr. Adv. with Mr. Saurabh Tiwari, Advocate VERSUS BIMLA DEVI RASTOGI ..... Respondent Through: Mr. Bharat Sangal, Advocate Mr. R.R.Kumar, Advocate and Ms. Ipsita Borthakur, Advocate RFA 416/2002 BIMLA DEVI RASTOGI ..... Appellant Through: Mr. Bharat Sangal, Advocate Mr. R.R.Kumar, Advocate and Ms. Ipsita Borthakur, Advocate VERSUS PREMA DEVI RASTOGI ..... Respondent Through: Mr. Davinder Singh, Sr. Adv. with Mr. Saurabh Tiwari, Advocate CORAM: Hon'ble Mr.Justice Pradeep Nandrajog Hon'ble Mr.Justice J.R. Midha 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? : PRADEEP NANDRAJOG, J. CM(M) 633/2004 & RFA 416/2002 Page 2 of 28 1. The original suit bearing Suit No.359/95 was filed by the Appellant in RFA No.416/2002, Smt.Prema Devi Rastogi, seeking a decree of partition, declaration and permanent injunction in respect of the property bearing Municipal No.54-A, East Azad Nagar, Krishna Nagar, Delhi (hereinafter referred to as the “Suit Property”) against the Respondent in RFA No.416/2002, Bimla Devi Rastogi. 2. For the sake of convenience, we shall be referring to the parties by their nomenclature in the suit. 3. Case set up by the plaintiff was that she and the defendant, who is the wife of the real brother of her husband, had purchased the suit property which was a 'single storeyed building' from one Sh.Devi Chand Khanna on 04.08.1971 vide registered sale deed dated 12.08.1971 for a consideration of Rs.22,000/-. That the parties contributed Rs.11,000/- each for the purchase of the suit property. That since the date of its purchase the entire suit property except one room remained in the possession of the defendant and her family. That the said room remained under the lock and key of the plaintiff and was occupied by the plaintiff and her family for short intervals of time. That on 28.10.1995 the intention of the defendant to raise constructions on the first floor/roof of the suit property came to the knowledge of the plaintiff therefore she was constrained to file the suit seeking partition of the suit property as also to CM(M) 633/2004 & RFA 416/2002 Page 3 of 28 restrain the defendant and her family from raising any construction on the first floor/roof of the suit property. 4. The suit was contested by the defendant who in the written statement took a defence that the plaintiff had no right, title or interest in the suit property as she was a mere benamidar inasmuch as the defendant was the real owner of the suit property having paid the entire sale consideration in respect of the suit property. As regards the factum of execution of the sale deed pertaining to the suit property in name of the plaintiff it was averred in the written statement that 'the execution of the sale deed is however, not denied'. It was further pleaded that after purchasing the suit property the defendant demolished the building and reconstructed the same with her own funds and contributions made by her family. It was pleaded that the claim of the plaintiff that the defendant is attempting to raise construction on the roof of the suit property is false inasmuch as defendant had raised said construction much prior to the filing of the present suit. It was pleaded that the claim of the plaintiff of having possession of the one room in the suit property is false. It was pleaded that the defendant is enjoying continuous, uninterrupted and peaceful possession of the suit property since last 12 years and therefore has perfected her title in the suit property by way of adverse possession. CM(M) 633/2004 & RFA 416/2002 Page 4 of 28 5. Since a dispute was raised by defendant regarding the date of raising of construction on the roof/first floor of the suit property, the plaintiff filed an application under Order XXVI Rule 9 of the Code of Civil Procedure before the learned Trial Court seeking appointment of a Local Commissioner for inspection of the suit property. 6. Vide order dated 21.11.1995 the learned Trial Court appointed a Local Commissioner who was directed to inspect the suit property and prepare a report particularly on the aspect of existence of any construction on the roof/first floor of the suit property. The report filed was to the effect that the constructions on the first floor were recent and were continuing when the commission was executed. 7. On the basis of the pleadings of the parties, following issues were settled by the learned Trial Court:- “1. Whether the plaintiff is entitled to partition of the suit property as having half share therein? OPP 2. Whether the defendant has purchased the suit property with his own fund and is in possession of the same as stated in W/S? If so, what effect? OPD 3. Whether the suit property is not properly valued for the purpose of jurisdiction? OPD 4. Whether the plaint does not disclose any cause of action as mentioned in the W/S? OPD 5. Relief.” CM(M) 633/2004 & RFA 416/2002 Page 5 of 28 8. At the trial, the plaintiff stepped into the witness-box as PW-1 and reiterated the stand taken by her in the plaint. Mr.S.S.Rawat, UDC, Office of Sub-Registrar – IV, Seelam Pur, Shahdara, Delhi, PW-2 proved the certified copy of the sale deed dated 04.08.1971 as Ex.PW-2/1. Ms.Santosh Jain, Advocate, PW- 3 who was appointed as Local Commissioner by the Trial Court proved the inspection report dated 27.11.1995 prepared by her as Ex.PW-3/1. As per the Report, the Local Commissioner visited the suit property on 21.11.1995 and found that there existed four rooms on the first floor of the suit property which appeared to be newly constructed and that some construction material was also lying on the said floor. Mr.Jagdish Pershad, AZ Inspector, MCD House Tax Deptt., Shahdara, South Delhi proved the house-tax receipt evidencing the payment made by the plaintiff of house tax in respect of the suit property as Ex.PW- 4/1. Mr.Radhey Shyam Rastogi, PW-5 who was the husband of the plaintiff and Mr.Harish Chand Rastogi, PW-6 who was the brother-in-law of the parties deposed on the lines of the plaint. Mr.R.R.Nagpal, Engineer and Civil Surveyor, PW-7 proved the valuation report prepared by him in respect of the suit property as Ex.PW-7/1. 9. On behalf of the defendant, Mr.Anil Kumar Malhotra, Mr.Tilak Raj and Mr.Rajesh Kumar who were the neighbours of the defendant were examined as DW-1, DW-2 and DW-3 respectively. They deposed that the suit property was CM(M) 633/2004 & RFA 416/2002 Page 6 of 28 demolished and reconstructed by the defendant and that the entire suit property was in the possession of the defendant and her family and the defendant had raised construction on the first floor/roof of the suit property in the year 1993. The defendant examined herself as DW-4 and reiterated the stand taken by her in the written statement. Mr.Anil Kumar Gupta, Architecture, DW-5 proved the valuation report prepared by him in respect of the suit property as Ex.DW-5/1. 10. Vide judgment and decree dated 14.03.2002, the learned Trial Court decreed the suit filed by the plaintiff thereby directing that the plaintiff is entitled to ½ share in the 'ground floor' of the suit property. Reasons which led the learned Trial Court to arrive at said conclusion can be summarized as under:- (I) The admission of the defendant of execution of the sale deed Ex.PW2/1 and her failure to prove that the entire sale consideration in respect of the suit property was paid by her from her funds establishes that the plaintiff was a co-owner of the 'suit property' and not benami/ostensible owner thereof as alleged by the defendant. (II) The defendant has not been able to establish that she had perfected her title in the suit property by adverse possession for the reason she had neither pleaded nor proved as to what overt act was done by her in order to claim herself as the exclusive owner of the suit property. CM(M) 633/2004 & RFA 416/2002 Page 7 of 28 (III) The pleas of benami and adverse possession are inconsistent to each other and therefore could not have been simultaneously taken by the defendant in the present suit. (IV) No documentary evidence was produced by the defendant to establish that she had got demolished the suit property and reconstructed the same from her own funds and contributions made by her family. (V) Even assuming the defendant had reconstructed the suit property the same was done at her own peril and would not in any way adversely affect the legal rights of the plaintiff in the suit property as the defendant had not taken permission from the plaintiff who was a co-owner of the suit property for raising said reconstruction. (VI) The report dated 27.11.1995, Ex.PW3/1, submitted by the Local Commissioner, photographs annexed thereto Ex.PW3/3 to Ex.PW3/14 and contradictions between the pleading in the written statement and the testimony of the defendant as DW-4 regarding the occupation of the first floor of the suit property by the tenant establishes that the said construction was raised by the defendant on the first floor/roof of the suit property in the year 1995 and that cause of action for filing the present suit arose when the defendant started raising construction on the first floor/roof of the suit property without the consent of the plaintiff who was a co-owner of the suit property. CM(M) 633/2004 & RFA 416/2002 Page 8 of 28 11. After passing of the impugned judgment and decree dated 14.03.2002 by the learned Trial Court, the plaintiff filed an application under Order VI Rule 17 read with Sections 152 and 153 of the Code of Civil Procedure seeking amendment of prayer clause of the plaint on the ground that due to an inadvertence the plaintiff instead of seeking decree for partition of entire suit property for which he was legally entitled prayed for a decree for partition of only ground floor of the suit property. 12. Vide order dated 09.03.2004, the learned Trial Court dismissed the application filed by the plaintiff for amendment of the plaint. 13. Being aggrieved by the judgment and decree dated 14.03.2002 passed by the learned Trial Court the defendant has invoked the appellate jurisdiction of this Court by filing the present appeal (RFA No.416/2002) under Section 96 of the Code of Civil Procedure. 14. Being aggrieved by the order dated 09.03.2004 passed by the learned Trial Court dismissing the application seeking amendment of plaint the plaintiff has invoked the supervisory jurisdiction of this Court by filing the present petition CM(M) No.633/2004 under Article 227 of the Constitution of India. CM(M) 633/2004 & RFA 416/2002 Page 9 of 28 15. Noting that the appeal preferred by the plaintiff against the impugned judgment and decree dated 14.03.2002 passed by the learned Trial Court is pending adjudication before a Division Bench of this Court, vide order dated 26.04.2004, a learned Single Judge of this Court transferred CM(M) No.633/2004 to the Division Bench of this Court in order to be heard along with the appeal. 16. The adjudication of the matter involves consideration of following three legal issues:- I Law relating to proof of benami transactions. II Law of adverse possession. III Legal principles relating to amendment of pleadings. LAW RELATING TO PROOF OF BENAMI TRANSACTIONS 17. The law relating to onus of proof of a property being benami and discharge of said onus was first expounded by the Federal Court in the decision reported as Gangadara Ayyar & Ors v Subramania Ayyar & Ors AIR 1949 FC 88 in following terms:- “It was contended by the learned Counsel for the appellants that the decision of the Court below against the appellants regarding these properties had been reached because of a wrong approach to this matter in law and that the rule of onus of proof as regards benami transactions had not been fully appreciated. It is settled law that the onus of CM(M) 633/2004 & RFA 416/2002 Page 10 of 28 establishing that a transaction is benami is on the plaintiff and it must be strictly made out. The decision of the Court cannot rest on mere suspicion, but must rest on legal grounds and legal testimony. In the absence of evidence, the apparent title must prevail.........” (Emphasis Supplied) 18. In the decision reported as Jaydayal Poddar & Anr v Mst. Bibi Hazra & Ors AIR 1974 SC 171 the Hon'ble Supreme Court enumerated six circumstances which must be looked into by the courts in determining whether a particular transaction is benami or not. It would be apposite to refer to following observations made by the Hon'ble Court in the said decision:- “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, uniformally applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the courts are usually guided by these circumstances : (1) the source from CM(M) 633/2004 & RFA 416/2002 Page 11 of 28 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 dealing with the property after the sale. The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless No. I, viz. the source whence the purchase money came, is by far the most important test for determining whether the sale standing in the name of one person, is in reality for the benefit of another.” (Emphasis Supplied) 19. After noting leading judicial pronouncements on the point, the Hon'ble Supreme Court in the decision reported as Valliammal (D) by Lrs. v Subramaniam & Ors AIR 2004 SC 4187 summarized the law related to proof of benami transactions as under:- “There is a presumption in law that the person 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 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 recorded owner is a benami-holder.” (Emphasis Supplied) 20. Having laid down the afore-noted legal position in respect of proof of benami transactions, the Hon'ble Supreme Court proceeded to note the six circumstances enumerated in Jaydayal Poddar's case (supra) and concluded that the source from where the purchase money came and the motive as to why CM(M) 633/2004 & RFA 416/2002 Page 12 of 28 the property was purchased benami are the most important tests for determining whether the sale standing in the name of one person, is in reality for the benefit of another person. The Hon'ble Court emphasized that a party invoking the plea of benami in order to prove the real ownership of the property which is the subject-matter of lis is required to show that there were valid reasons for purchase of the property in name of the benamidar and that the purported real owner had paid the sale consideration for the purchase of the property. 21. In the backdrop of afore-noted legal position, we shall appreciate the evidence led by the defendant on the aspects of source of sale consideration of the suit property and the motive for allegedly giving benami colour to the purchase of the suit property. 22. As regards the source of sale consideration of the suit property, the defendant had pleaded and deposed to the effect that she had paid entire sale consideration of the suit property from her own funds and contributions made by her family. 23. A perusal of the evidence led by the defendant reveals that no documentary evidence was led by her to establish that she had paid entire sale consideration of the suit property from her own funds and contributions made by her family. CM(M) 633/2004 & RFA 416/2002 Page 13 of 28 24. In such circumstances, the learned Trial Court has rightly held that except for the mere bald statement of the defendant there is no corroborative piece of evidence which establishes that the defendant had paid the entire sale consideration of the suit property from her own funds and contributions made by her family. 25. Lastly, it is pertinent to note an interesting feature of the cross-examination of the plaintiff. In the cross-examination, a question was put to the plaintiff that whether it is correct that the house situated in Jogiwara fell in her share and the suit property fell in the share of the defendant to which she replied in negative. The defendant by putting said question to the plaintiff has attempted to set up a case that she had become the exclusive owner of the suit property on account of some family arrangement between the parties and this attempt of the defendant casts serious doubts on the case set up by her in the pleadings that she is the exclusive owner of the suit property inasmuch as she had paid the entire sale consideration of the suit property from her own funds and contributions made by her family. 26. In so far as motive for allegedly giving benami colour to the sale of the suit property is concerned, it is relevant to note that the factum of execution of sale deed Ex.PW2/1 which records the name of the plaintiff as a co-owner of the suit CM(M) 633/2004 & RFA 416/2002 Page 14 of 28 property was admitted by the defendant in her written statement and that no reasons/explanation were stated therein for existence of said recording in the sale deed when allegedly plaintiff had not paid any consideration in respect of the purchase of the suit property. 27. The plaintiff in her testimony as PW-1 had deposed that the original sale deed of the suit property is in the possession of husband of the defendant. When questioned about the same, the defendant deposed that the same is in her possession and that she will produce the same in the court. However, subsequently the defendant expressed her inability to produce the same and instead produced the photocopy of said sale deed which was exhibited as Ex.DW4/X. The defendant also deposed that the sale deed Ex.DW4/X wrongly records the name of the plaintiff as a co-owner of the suit property, she came to know of the said recording the moment sale deed was handed over to her and that she discussed the same with her husband who told her that there is no need to rectify the said error. 28. The fact that no reasons/explanation were stated in the written statement while admitting the execution of the sale deed Ex.PW2/1 strongly probablizes that the version put forward by the defendant in her testimony of sale deed DW4/X containing a wrong recording is merely an afterthought. CM(M) 633/2004 & RFA 416/2002 Page 15 of 28 29. Moreover, the decision of the learned Trial Court that it does not appeal to reason that the defendant would have taken no action to rectify the alleged wrong recording in the sale deed Ex.PW2/1 had she paid the entire sale consideration of the suit property is perfectly correct. 30. In such circumstances, it has to be held that the defendant has miserably failed to prove the motive for allegedly giving benami colour to the sale of the suit property. 31. Before rendering final decision on said aspect of the matter, it is necessary to deal with the contention advanced by the defendant in the present appeal that the testimony of the plaintiff (PW-1) to the effect that she had never met the seller of the suit property, she is not aware as to whether any earnest money was paid or any agreement to sell was executed before the execution of the sale deed of the suit property, she has no knowledge regarding the registration of the sale deed and she never appeared before Sub-Registrar for registration of the sale deed as also the testimony of her husband (PW-5) that she has never met the seller of the suit property and that payment of the sale consideration of the suit property was not made in his presence strongly probablizes that the plaintiff had not paid any sale consideration in respect of the suit property. 32. As regards the said contention advanced by the appellant, suffice would it be note the following dictum laid down by the CM(M) 633/2004 & RFA 416/2002 Page 16 of 28 Hon‟ble Supreme Court in the decision reported as M. Nagendriah v M. Ramachandraih & Anr 1969 (1) UJ 697 (SC):- “...............Now if that is so, then the onus of proving that these purchase were benami was on the appellant and it was for him to show by convincing evidence that the source of money for these acquisitions was traceable to the joint funds from this business. Admittedly this has not been shown by any affirmative evidence, Shri Gupta, however, laid stress on the contention that the respondent had also not been shown to possess sufficient funds with which properties in question could be acquired. On this reasoning the counsel tried to induce us to infer that the properties must be held to be joint of the appellant and Ramachandraiah. This, in our opinion, is not a correct approach. Ostensible owner must be held to be a true owner in the absence of cogent evidence establishing that he is a mere benamidar, or is holding property for another person who claims to be the beneficial or real owner. The onus also does not change merely because the beneficial owner and the ostensible owner are brothers or they may be owning some other property jointly. The mere circumstance that the ostensible owner has not proved that he had himself paid the price or that he had sufficient funds to be able to do so, would also net be enough by itself to sustain the claim of the alleged beneficial owner. The initial onus is always on the party seeking to dislodge the ostensible title. We are not unmindful of the fact that in this country benami transactions are not uncommon and they are certainly not forwarded upon. We are equally conscious of the fact that the