IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 407 of 1999 Date of decision: 23.09.2010 Mohan Singh ... Appellant Versus Vidya Devi and others … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the appellants: Mr. Karan Singh Kanwar, Advocate. For the respondent: Ms. Aruna Sharma vice Ms. Jyotsna Rewal, Advocate, for LRs of respondent No. 1. V.K. Ahuja, J. (Oral) : This Regular Second Appeal under Section 100 C.P.C. has been filed by the appellant against the judgment and decree dated 31.7.1999 passed by learned District Judge, Sirmaur District at Nahan, vide which he dismissed the appeal filed by the appellant against the judgment and decree dated 29.6.1996 of the Court of learned Senior Sub Judge, Sirmaur District at Nahan, dismissing the suit for declaration and injunction filed by the appellant. 2. Briefly stated, the facts of the case are that the appellant hereinafter also referred to as the plaintiff filed a suit for declaration and injunction as against the respondents hereinafter also referred to as defendants No. 1 and 2. It was alleged that the plot bearing No. MIG-20 measuring 207 Sq. Metres, situated in Housing Board Colony, 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Nahan, was the joint property of the parties. It was alleged that half share is owned by defendant No. 1 and remaining half share by the plaintiff and proforma defendant No. 2. It was also alleged that the suit property was purchased by the parties out of their joint funds. The sale deed was executed in favour of defendant No. 1 as sole owner. It was further alleged that the plaintiff and proforma defendant purchased the property in the name of defendant No.1 being their elder brother in view of a mutual settlement between the parties. A prayer was also made for the grant of permanent injunction restraining defendant No. 1 from raising construction on the part of the suit property depicted by the blue colour in the site plan. The proforma defendant supported the plaintiff ‘s case. 3. The suit was contested by Sita Ram, defendant No. 1, on the ground that he had purchased the property with the income from his own property. He refuted the plaintiff’s claim that he and proforma defendant had contributed for purchase of the suit property. He further pleaded that he had independently applied for acquisition of a plot to the Housing Board, Shimla in April, 1980 and acquired the suit property by paying its price from his own pocket. The allegations made in regard to plaintiff and defendant No. 2 having contributed a sum of Rs.3000/- were alleged to be false. He pleaded that he invested a sum of Rs.2.50 Lacs and no money was contributed by the plaintiff and proforma defendant. 4. On the pleadings of the parties, the following issues were framed by the learned trial Court:- (1) Whether the plaint does not disclose any cause of action and is liable to be dismissed? …. O.P.D. 3 (2) Whether the suit is bad for non-joinder of necessary parties? …. O.P.D. (3) Whether the suit has not been properly valued for the purpose of court fee and jurisdiction, if so, what is its value? … O.P. Parties. (4) Whether the suit is not maintainable in the present form? ... O.P.D. (5) Whether the suit property was purchased jointly, as alleged? If so, to what effect? … O.P.P. (6) Whether the plaintiff and defendants formed a joint Hindu family, as alleged? … O.P.P. (7) Relief. 5. Parties led their evidence and the learned trial Court vide its impugned judgment decided almost all the issues as against the plaintiff and in favour of defendant No. 1 and consequently, dismissed the suit of the plaintiff in full. An appeal filed by the plaintiff/appellant against the judgment and decree of the learned trial Court was dismissed. Hence, the second appeal filed by the appellant. 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. The submissions made by the learned counsel for the appellant were that the plaintiff and proforma defendant No. 2 being the younger brother of defendant No. 1 had also contributed towards the funds for the purchase and construction of the house and as such, they are also joint owners to the extent of half share in the suit property purchased by defendant No. 1 from the Housing Board. It was submitted that the plaintiff had pleaded that the plaintiff and proforma defendant No. 2 had spent Rs.4,500/- for buying of the plot and the learned Appellate Court had held that a sum of Rs.3000/- was contributed by the plaintiff and proforma defendant No. 2, but it was 4 held that the plaintiff was not entitled to be declared as owner alongwith proforma defendant No.2 to the extent of half share since the transaction in question was not proved to be Benami. It was also submitted that receipt Ext. Z-2 was proved by the plaintiff for a sum of Rs.4,500/-, but the same was not relied upon by the learned Appellate Court. It was further submitted that the case of the plaintiff falls within Exception to Section 4(3) (a) and (b) of the Benami Transactions (Prohibition) Act, 1988 and as such, the transaction in question was Benami and the plaintiff and proforma defendant No. 2 were entitled to be declared as owner to the extent of half share. On the other hand, learned counsel appearing for respondent No. 1 had supported the impugned judgment for the reasons given therein supplementing it by the case law, which shall be discussed below. 8. On a perusal of the record of the case, it is clear that the plaintiff had framed three substantial questions of law, but the appeal was admitted on the substantial question of law, which may be reproduced as under:- “Whether the case of the plaintiff – appellant falls under the provisions of section 4(3) of the Benami Transaction (Prohibition) Act, 1988?” 9. It is, therefore, clear that the appeal in question has not been admitted by the Court on the substantial questions of law as to whether the findings of learned trial Court to the extent that the plaintiff and proforma defendant had been proved, to have spent Rs.3000/- only and not Rs.4,500/- as alleged by the plaintiff. Those findings are not to be reconsidered by this Court since these are findings of facts recorded by the learned Appellate Court. The only question which 5 survives to my mind and which needs to be considered by this Court is as to whether the case of the plaintiff falls under the provisions of section 4 (3) (a) and (b) Exceptions and accordingly, the transaction in question can be said to be Benami. 10. Before I refer to the legal preposition, I may point out that the plaintiff had no where pleaded in the plaint that transaction in question was a benami and the provisions of section 4 (3) (a) and (b) applied to the present facts. The plaintiff had only made a prayer that he should be declared a joint owner alongwith defendant No. 2 over half share of the suit property. No prayer was made that the transaction in question was Benami and the provisions of the Act were attracted to the present facts. This plea has not been specifically taken by the plaintiff in the plaint and the fact that this plea was allowed to be taken during the further proceedings, it has to be considered as to whether this plea was open to the plaintiff or not. 11. My attention has been drawn by the learned counsel appearing for respondent No. 1 to the decision in Union of India Vs. E.I.D. Parry (India) Ltd., AIR 2000 Supreme Court 831, wherein it was held that the claim was based upon Goods Tariff Rules. There were no pleadings that said Rule was ultra vires Railways Act. No issue was framed by Trial Court on that question. High Court held that Rules to be ultra vires. It was held that order travels beyond pleadings and as such, the order passed by the High Court was held to be illegal. In the present case also, there were no specific pleadings that the transaction in question was Benami or that the provisions of the Act applied to the same and as such, it has to be considered as to whether this plea was open to the plaintiff or not. 6 12. Learned counsel for the appellant on the strength of the evidence led by him has referred to the documents Exts. PW-10/A to PW-10/M as well as copies of Jamabandis Exts. PB and PC and mutation Ext. PF to prove that other property belonging to the parties was in their joint cultivation. The mere fact that this property was entered in the joint cultivation does not prove that the plaintiff and proforma defendant No. 2 constituted a joint Hindu family or that defendant No. 1 being the eldest brother was Karta or the amount was spent from the funds of the joint Hindu family. Moreover, an issue in this regard was also framed by the learned trial Court as Issue No. 6 as to whether the plaintiff and defendants formed a joint Hindu family as alleged. This issue was not pressed before the learned trial Court and accordingly, it was decided against the plaintiff. This plea is now not open to the plaintiff to claim that the plaintiff and proforma defendant formed a joint Hindu family and the amount was spent from the joint Hindu family. 13. Learned counsel for the appellant had relied upon the decision in Valliammal (D) By LRs. Vs. Subramaniam and others, (2004) 7 Supreme Court Cases 233, wherein in regard to Benami transaction, their Lordships had laid down six tests in Para-13 of the judgment, which are being reproduced below:- “(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 7 (6) the conduct of the parties concerned in dealing with the property after the sale. (Jaydayal Poddar v. Bibi Hazra, SCC p. 7, para 6).“ 14. It was observed in Para 14 as under:- “The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless, the source from where the purchase money came and the motive why the property was purchased benami are by far the most important tests for determining whether the sale standing in the name of one person, is in reality for the benefit of another. We would examine the present transaction on the touchstone of the above two indicia.“ 15. It is, therefore, clear that these things have to be proved before it can be held that the transaction was Benami or not. In the present case, there is nothing to hold that the sources from which the purchase money came as to whether it was collection of the joint Hindu family property. There is nothing to show that the possession remained only with defendant No. 1 after the purchase or the plaintiff and defendant No. 2 were also in possession. The mere fact that defendant No.1 was the eldest brother is not sufficient to hold that there was fiduciary relationship in between the parties. There is nothing on record to show that the custody of the title deeds after the sale remained with the plaintiff or defendant No. 2. There is northing to show that any written document or Ikrarnama was executed in between the parties embodying the terms of the contribution made by the plaintiff and defendant No. 2 for purchase of the property. Defendant No. 2 has not challenged the allegations made by the plaintiff in this regard and, therefore, he had failed to prove that 8 the money came from the common corpus or it was out of the funds of the joint Hindu family. 16. The mere fact that the plaintiff spent some money at the time of construction of the property or contributed some amount to the defendant No. 1 at the time of purchase is not sufficient to hold that he had become the owner to the extent of half share. He may have contributed some amount, which amount he could claim from the defendant No. 1 by filing a suit for recovery of money in case facts justify the same. However, it cannot be said that the plaintiff and defendant No. 2 had become owner of half of the property by merely contributing some amount at the time of purchase or at the time of construction. Neither there was a challenge that it was a Benami transaction, nor it was proved that it falls within the Exception to section 4 (3) (a) and (b) of the Benami Transactions (Prohibition) Act, 1988. Section 4 (3) (a) and (b) of the Benami Transactions (Prohibition) Act, 1988, reads as follows:- “ (3) Nothing in this section shall apply, - (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity.” 17. The Exception to section 4 as provided under sub-section (3) (a) and (b) is not attracted to the present facts and the learned First Appellate Court had come to a right conclusion after referring to 9 the provisions and the case law that the transaction in question cannot be said to be Benami holding that the plaintiff is not entitled to the relief of joint ownership to the extent of half share. Therefore, there is no question of reappraisal of the oral evidence since the point raised was only legal and that has been correctly decided by the learned District Judge and those findings do not call for an interference by this Court. 18. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed. However, the parties are left to bear their own costs. ( V.K. Ahuja ), September 23, 2010 Judge (BSS)