SMT. P. LEELAVATHI (D) BY LRS versus V. SHANKARNARAYANA RAO (D) BY LRS
[2019] 6 S.C.R. 910, Supreme Court of India, 2019
Outcome: Dismissed (Dismissed)
Segment: Arguments
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SMT. P. LEELAVATHI (D) BY LRS
v.
V. SHANKARNARAYANA RAO (D) BY LRS
(Civil Appeal No. 1099 of 2008)
APRIL 09, 2019
    [L. NAGESWARA RAO AND M. R. SHAH, JJ.]
Suit – Partition – Appellant-original plaintiff claimed 1/4th
share in all the scheduled properties of her late father – Plaintiff
alleged that defendants-her brothers refused to give her 1/4th share
– Plaintiff filed suit for partition – Trial court dismissed the suit by
holding that the suit schedule properties were not the self-acquired
properties of father of the parties and same were the properties of
defendants Nos.1 to 3; the bank deposits mentioned in schedule II
were also the personal properties of defendant Nos.1 to 3 – High
Court vide judgment & order dated 26.02.1999 set aside the
judgment of the trial court and held that though the properties were
in the names of the original defendants, the transactions between
father and defendants were benami in nature – Supreme Court
remitted the matter back to the High Court for reconsideration –
Thereafter, on remand, the High Court confirmed the judgment of
the trial court and held properties were not benami in nature –
Appellant contended that the suit properties acquired in the names
of defendant Nos.1 to 3 were benami in nature – On appeal, held:
Supreme Court in catena of decisions has held that source of money
can never be the sole consideration and it is merely one of the
relevant considerations, but not
determinative in character – In the
instant case, the High  Court rightly came to the conclusion that
plaintiff failed to prove that the purchase of the suit properties in
the names of defendant Nos.1 to 3 were benami in nature – Plaintiff
had failed to establish and prove the intention of the father to
purchase the suit properties for and on behalf of the family, which
were purchased in the names of the defendant Nos.1 to 3 – Late
father of plaintiff had also assisted her and her husband to purchase
a residential house – Similarly, the intention of the late father was
to give the financial assistance to defendant Nos.1 to 3-sons and
helped them in purchase of the properties – The transaction of
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purchase of the suit properties cannot be said to be benami in nature
– Therefore, the plaintiff has no right to claim 1/4thshare in the suit
properties – Benami Transactions (Prohibition of Right to Recover
Property) Ordinance, 1988 – Benami Transactions (Prohibition) Act,
1988.
Dismissing the appeal, the Court
HELD: Applying the law laid down by Supreme Court in
the various decisions to the facts of the case on hand, this Court
is of the opinion that the High Court has rightly come to the
conclusion that the plaintiff has failed to prove that the purchase
of the suit properties – Item Nos. I(a) to I(c) in the names of
defendant Nos. 1 to 3 were benami in nature.   It is true that, at
the time of purchase of the suit properties – Item Nos. I(a) to
I(c), some financial assistance was given by their late father.
However, as observed by this Court in the various decisions,
that cannot be the sole determinative factor/circumstance to hold
the transaction as benami in nature.  The plaintiff has miserably
failed to establish and prove the intention of the father to purchase
the suit properties for and on behalf of the family, which were
purchased in the names of defendant Nos. 1 to 3.  It is required
to be noted that, as such, the plaintiff – daughter has not stepped
into the witness box and that the evidence on behalf of the plaintiff
has been given by her husband who, as such, can be said to be an
outsider, so far as the joint family is concerned.   Apart
from that,
it has come on record that the plaintiff and her husband were
maintained by late father of plaintiff.  The financial assistance was
also given to the plaintiff and her husband to purchase the
residential house at Bangalore. Father of plaintiff, therefore,
provided a shelter to his daughter and, as observed herein above,
also gave the financial assistance to purchase the residential house
at Bangalore.  It has also come on record that their late father
even purchased the share certificates and his daughter-original
plaintiff was also given certain number of shares.  Therefore,
considering the aforesaid facts and circumstances of the case,
their late father also must have given the financial assistance to
defendant Nos. 1 to 3 – sons and helped them in purchase of the
properties.  Therefore, the intention of their late father to give
the financial assistance to purchase the properties in the names
SMT. P. LEELAVATHI (D) BY LRS v. V. SHANKARNARAYANA
RAO (D) BY LRS
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of defendant Nos. 1 to 3 cannot be said to be to purchase the
properties for himself and/or his family members and, therefore,
as rightly observed by the High Court, the transactions of
purchase of the suit properties – Item Nos. I(a) to I(c) in the
names of the defendant Nos. 1 to 3 cannot be said to be benami
in nature.  The intention of their late father was to provide the
financial assistance for the welfare of his sons and not beyond
that. None of the other ingredients to establish the transactions
as benami transactions, as held by this Court in the aforesaid
decisions, are satisfied, except that some financial assistance was
provided by their late father.  In the facts and circumstances of
the case and considering the evidence on record, the purchase
of the suit properties – Item Nos. I(a) to I(c) in the names of
defendant Nos. 1 to 3 cannot be said to be benami transactions
and, therefore, as rightly observed and held by the trial Court
and confirmed by the High Court, the plaintiff has no right to
claim 1/4th share in the suit properties – Item Nos. I(a) to I(c)
which were purchased by the sons in their names by separate
sale deeds.  [Para 10][923-C-H; 924-A-D]
Binapani Paul v. Pratima Ghosh (2007) 6 SCC 100 :
[2007] 5 SCR 946; Jaydayal Poddar v. Bibi Hazra
(Mst.) (1974) 1 SCC 3 : [1974] 1 SCR  70; Valliammal
v. Subramaniam (2004) 7 SCC 233 : [2004] 3 Suppl.
SCR 966 – relied on.
Thakur Bhim Singh v. Thakur
Kan Singh (1980) 3 SCC
72: [1980] 2 SCR 628 – referred to.
Case Law Reference
[1980] 2 SCR 628
      referred to
Para 6.4
[2007] 5 SCR 946
      relied on
Para 7.2
[1974] 1 SCR  70
      relied on
Para 9.1
[2004] 3 Suppl.  SCR 966   relied on
Para 9.2
CIVIL APPELLATE JURISDICTION: Civil Appeal No.1099 of
2008.
From the Judgment and Order dated 06.09.2007 of the High Court
of Karnataka at Bangalore in RFA No.220 of 1991.
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Basava Prabhu S. Patil, Sr. Adv., Ms. Rachitha Herimath, Chinmay
Desh Pande, Geet Ahuja, V.N. Raghupathy, Advs. for the Appellants.
G. V. Chandrashekar, N. K. Verma, Ms. Ansha Verma, Ms. Anjana
Chandrashekar, Advs. for the Respondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court of Karnataka at Bangalore dated
06.09.2007 in RFA No. 220 of 1991, by which the High Court has
dismissed the said First appeal preferred by the original plaintiff Smt. P.
Leelavathi (now deceased and represented through her legal heirs) and
has confirmed the judgment and decree passed by the learned trial Court
dismissing the suit, the legal heirs of the original plaintiff Smt. P. Leelavathi
have preferred the present appeal.
2. The facts leading to the present appeal in nutshell are as under:
That Smt. P. Leelavathi instituted Original Suit No. 1248 of 1980
in the Court of the XIV Additional City Civil Judge at Bangalore against
the original defendants – V. Shankaranarayan Rao (now deceased and
represented through his legal heirs) and two others for partition and for
recovery of 1/4th share of the plaintiff in the plaint scheduled properties.
That the original plaintiff Smt. P. Leelavathi and the original defendants
are the sister and brothers and the daughter and sons of Late G. Venkata
Rao, who died on 08.10.1974.
2.1 It was the case on behalf of the original
plaintiff that her
father Late G. Venkata Rao was an Estate Agent and he was doing
money lending business in his name and also in the names of his sons
and he was purchasing properties in the names of his sons, though his
father was funding those properties.   According to the plaintiff, at the
time of his death, G. Venkata Rao was in possession of a large estate
comprising of immoveable properties, bank deposits etc. shown in the
plaint schedule.  It was the case on behalf of the original plaintiff that the
suit schedule properties were as such joint family properties and/or they
were purchased in fact by their late father G. Venkata Rao and the same
was funded by their father.  That, it was the case on behalf of the original
plaintiff that the plaintiff was entitled to 1/4th share in all the said properties
SMT. P. LEELAVATHI (D) BY LRS v. V. SHANKARNARAYANA
RAO (D) BY LRS. [M.R. SHAH, J.]
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belonging to her father.  It was the case on behalf of the original plaintiff
that as the defendants refused to give her 1/4th share and gave an evasive
reply, which prompted the plaintiff to demand in writing her share and
for early settlement.  That, thereafter she got a notice dated 18.07.1975
issued demanding partition and amicable settlement.  But the defendants
have failed to settle the matter.  Therefore, the plaintiff instituted the
aforesaid suit for partition and for recovery of her 1/4th share in the
plaint schedule properties.
3. That the original defendants resisted the suit by filing the written
statement.  It was the case on behalf of the original defendants that the
plaint schedule properties are exclusively owned by the defendants in
their individual rights.  Item No. 1 of the plaint schedule i.e., premises
No. 32/1, Aga Abbas Ali Road is the personal property of defendant No.
3.  Item (b) of schedule 1 belongs to defendant No. 2 and Item (c)
belongs to defendant No. 1.   These properties never belonged to their
deceased father G. Venkata Rao and they do not form part of his estate.
Coming to Item No. II, the three fixed deposits were the personal
properties of each of the defendants.  There was a joint saving bank
account in the Syndicate Bank, Cantonment Branch in the joint names
of the deceased and defendant No. 2.  There is a small amount still lying
in the said account.  At any rate, there is no
outstanding of Rs.10,000/- in
the said account.  Regarding Item No. III, there were no debts due and
payable to the deceased.  939 shares were in the joint names of the
deceased and the plaintiff.  840 shares were in the names of the deceased
and defendant No. 1.  Another 840 shares were in the names of the
deceased and defendant No. 2.   949 shares were in the names of the
deceased and defendant No. 3.   The plaintiff had major share which
were purchased by the deceased in the names of himself and the plaintiff.
Late G. Venkata Rao was a head clerk attached to an advocate’s office
in Civil Station, Bangalore.  On retirement, the deceased indulged in and
acted as an estate agent in a most casual manner.   At any rate, he was
not doing money-lending business nor did he purchase properties as is
sought to be made out in the plaint.  The deceased was at no point of
time in affluent circumstances.  The solvency of the deceased was at a
very low ebb at the time of his death and he left no jewellery.   Even the
furniture available at Premises No. 138, Aga Abbas Ali Road, Bangalore
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was not worth mentioning inasmuch as the pieces left could be counted
on finger tips.  The value of the entire hold effects would not exceed
Rs.400.00.   Only Items 10, 12, 19, 20, 21 and 22 out of the said premises
were valuable articles of the deceased.  The other items never existed
at any point of time.  The plaintiff had the best of things from her father
while he was alive.  She was the recipient of favours shown by her
father from time to time.  The deceased stretched his generosity even to
his son-in-law, the husband of the plaintiff.  The deceased in fact emptied
his resources at the calls of her daughter and her husband.   The son-in-
law also collected cash from the deceased.   The plaintiff and her husband
are also due in a sum of Rs.3000/- borrowed by them under a pro-note
dated 11.06.1966 from the deceased and defendant No. 3.   They are
also due a sum of Rs.1500/- under another pro-note dated 29.11.1966
payable to the deceased.  The above amounts also carry interest at
stipulated rates.  The defendants serve their right to recover the said
amounts through proper legal remedies.   The plaintiff constructed a
house bearing No. 150, Veerapillai Street with the said and financial
assistance of her father.  The plaintiff in active connivance with her
husband ransacked the house No. 138, Aga Abbas Ali Road during the
absence of the deceased and defendant No. 2 who had gone to Tirupathi
and Madras.    The plaintiff had made wrongful gains about
this time
somewhere in 1963.  The plaintiff stayed with her husband at Chicmagalur
only for about three months after her marriage.  Thereafter she came
with her husband to Bangalore and stayed with her father for nearly six
years.  The plaintiff is enjoying the special privilege and she has benefits
bestowed on her, her husband and her children almost regularly.  In
addition to her father, defendant No. 2 was also looking after the needs
of the plaintiff’s family at considerable expenses.  All the defendants
are residing in rented houses.  The claim of the plaintiff in respect of
Item A to C in the plaint schedule is not tenable, in view of provisions of
Section 2 of Benami Transactions (Prohibition of Right to Recover
Property) Ordinance, 1988, the plaintiff has no cause of action and no
relief can be given to her. The suit is therefore liable to be dismissed
with costs.
3.1 That the trial Court framed the following issues:
1)  Whether the plaintiff proves that the suit schedule immovable
and movable properties as described in Schedule I to V are the
self-acquire properties?
SMT. P. LEELAVATHI (D) BY LRS v. V. SHANKARNARAYANA
RAO (D) BY LRS. [M. R. SHAH, J.]
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2) Whether the suit schedule I(a) vacant site bearing No. 32/1,
Aga Abbas Ali Road, Civil Station, Bangalore, is the self acquired
property of defendant No. 3?
3) Whether the suit schedule I(b) vacant site bearing No. 32/1,
Aga Abbas Ali Road, Civil Station. Bangalore, is the self acquired
property of defendant No. 2?
4) Whether the suit schedule I(c) property is the self acquired
property of defendant No. 1?
5) Whether the defendants prove that the suit schedule II Bank
deposits are the personal properties of each of the defendants?
6) Whether the defendants prove that there were furniture
mentioned as Items 10, 12, 19, 20, 21 and 22 of suit Schedule V
in page-5 of the plaint, hardly worth Rs.400/- in premises No.
138/A (New No. 6) Armstrong Road, Civil Station, Bangalore?
7) Whether the plaintiff is entitled to partition and possession of
her 1/4th share in the suit schedule properties?
8) Whether there is cause of action for the suit?
9) To what reliefs is the plaintiff entitled?
Additional Issue:  Is the claim of the plaintiff barred by Section 2 of
        the Benami Transaction (Prohibition of Right to
        Recover Property) Ordinance, 1988 as alleged?
3.2 That the learned trial Court dismissed the suit by holding that
the suit schedule properties are not the self-acquired properties of Late
G. Venkata Rao; suit Item Nos. I(a), I(b) and I(c) are the properties of
original defendant Nos. 1 to 3; the bank
deposits mentioned in Scheduled
II of the plaint are the personal properties of defendant Nos. 1 to 3.  The
learned trial Court further observed and held that in respect of moveable
properties mentioned in Schedule V as suit Item Nos. 10, 12, 19, 20, 21
and 22, the plaintiff is entitled for 1/4th share and therefore the learned
trial Court granted the decree for recovery of 1/4th share to the plaintiff
which was hardly worth Rs.400/- (sic) available in the premises bearing
No. 138/A (New No. 6) Armstrong Road, Civil Station, Bangalore.
4. Feeling aggrieved and dissatisfied with the judgment and decree
passed by the learned trial Court dismissing the suit and holding that the
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suit schedule properties were not the self-acquired properties of Late G.
Venkata Rao and they were the properties of defendant Nos. 1 to 3, the
original plaintiff preferred an appeal before the High Court.   The High
Court vide judgment and order dated 26.02.1999 set aside the judgment
and decree passed by the learned trial Court holding that all though the
properties were in the names of the original defendants, the transactions,
in question, were benami in nature and in that view of the matter, the
plaintiff had inherited 1/4th share therein.
4.1 Feeling aggrieved and dissatisfied with the judgment and order
passed by the High Court dated 26.02.1999 allowing the appeal and
quashing and setting aside the judgment and decree passed by the learned
trial Court and, consequently decreeing the suit and holding that the
plaintiff had inherited 1/4th share in the said schedule properties, the
legal representatives of the original defendants approached this Court
by way of Civil Appeal No. 7117 of 2000.
4.2 That by judgment and order dated 11.05.2007, this Court allowed
the appeal and remitted the matter back to the High Court observing
that the High Court has not properly appreciated and/or considered
whether the transaction in question is benami or not.
4.3 That thereafter, on remand, the High Court has by the impugned
judgment and order dismissed the appeal confirming the judgment and
decree passed by the learned trial Court dismissing the suit, by
specifically
observing that the purchase/transaction in favour of defendant Nos. 1 to
3 with respect to the suit schedule properties were not the benami
transactions and that they were the self-acquired properties of defendant
Nos. 1 to 3 and, therefore, the plaintiff is not entitled to any share in the
suit schedule properties.  The High Court has further observed and held
that the provisions of the Benami Transactions (Prohibition) Act, 1988
are retroactive in application.
5. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court in dismissing the appeal and confirming
the judgment and decree passed by the trial Court dismissing the suit,
the original plaintiff (now the deceased and represented through the
legal heirs) has preferred the present appeal.
6. Learned counsel appearing on behalf of the appellants has
vehemently submitted that, in the facts and circumstances of the case,
SMT. P. LEELAVATHI (D) BY LRS v. V. SHANKARNARAYANA
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the High Court has committed a grave error in dismissing the appeal and
confirming the judgment and decree passed by the trial Court dismissing
the suit.
6.1 It is vehemently submitted by the learned counsel appearing
on behalf of the appellants that the Courts below have materially erred
in not accepting the case of the plaintiff that the suit properties acquired
in the names of defendant Nos. 1 to 3 were benami in nature.
6.2 It is submitted by the learned counsel appearing on behalf of
the appellant that the findings recorded by the learned trial Court and
confirmed by the High Court that the suit properties acquired in the
names of defendant Nos. 1 to 3 were not benami in nature, but were the
self-acquired properties of defendant Nos. 1 to 3 are contrary to the
evidence on record.
6.3 It is submitted by the learned counsel appearing on behalf of
the appellants that it has come in evidence that the sale consideration
was paid by the father of the plaintiff and defendant Nos. 1 to 3.  It is
submitted that DW1 admitted that he had borrowed a sum of Rs.1,030/
- from his father Late G. Venkata Rao and that Late G. Venkata Rao
sent a demand draft for a sum of Rs.1,030/- directly to the Tamil Nadu
Housing Board. It is submitted that even the entire consideration for
acquisition of suit properties - Item Nos. 1(a) to 1(c) were paid by Late
G. Venkata Rao.
6.4 It is further submitted by the learned counsel appearing on
behalf of the appellant that the High Court having concluded that the
purchase money of suit properties -Item Nos. 1(a) to 1(c) came from
Late G.Venkata Rao, thereafter, the High Court is not justified in
concluding that the plaintiff was required to give further evidence to
establish that the suit properties were acquired for the benefit of
defendants or Late G. Venkata Rao had other reasons to acquire the suit
properties in the names of his sons – original defendant Nos. 1 to 3.
Relying upon the decision of this Court in Thakur Bhim Singh v. Thakur
Kan Singh (1980) 3 SCC 72, it is vehemently submitted by the learned
counsel appearing on behalf of the appellant that, as held by this Court in
the aforesaid decision, if it is proved that the purchase money came
from a person other than the person in whose favour the property was
transferred, the purchase is prima facie assumed to be for the benefit
of person who supplied the purchase money, unless there is an evidence
to the contrary.
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6.5 It is further submitted by the learned counsel appearing on
behalf of the appellant that both the Courts below have materially erred
in observing and consequently holding that the plaintiff was not a member
of the joint family.
6.6 Making the above submissions, it is prayed to allow the present
appeal and quash and set aside the judgment and decree passed by both
the Courts below and consequently to decree the suit.
7. Shri G. V. Chandrashekar, learned advocate appearing on behalf
of the original defendants, while opposing the present appeal, has
vehemently submitted that the finding recording by the learned trial Court,
confirmed by the High Court that the suit properties – Item Nos. I(a) to
I(c) were not benami transactions, are on appreciation of evidence.  It is
submitted that, as rightly observed by the High Court, merely because
some financial assistance might have been given by the father to the
defendants while purchasing the suit properties, the same would not
become a benami transaction, unless the contrary intention is established
and proved.
7.1 It is vehemently submitted by the learned counsel appearing
on behalf of the defendants that, in the present case, all the three suit
properties were purchased by defendant Nos. 1 to 3 by registered sale
deeds and some financial assistance was given by the father Late G.
Venkata Rao, which was given to the plaintiff also.  It is submitted that,
in the present case, it has come on record that the
plaintiff married with
PW-1 in the year 1954; the marriage of the plaintiff was performed by
Late G. Venkata Rao; and that after the marriage of the plaintiff, Late G.
Venkata Rao and defendant Nos. 1 to 3 were living together.  It is
submitted that it has also come on record that Late G. Venkata Rao
provided the financial assistance to the plaintiff to acquire the house
bearing No. 150, Veerapillai Street, Civil Station, Bangalore.  It is
submitted that even the evidence on record would disclose that after the
marriage, the plaintiff and her husband were maintained by her father
for a period of 10 years.  It is submitted that, considering the aforesaid
circumstances, as rightly observed by the High Court, the intention of
Late G. Venkata Rao in providing financial assistance to his sons for
acquisition of properties was to provide shelter to his sons and, therefore,
the acquisition of the suit properties – Items I(a) to I(c) by defendants,
out of the financial assistance provided by their father Late G. Venkata
Rao, did not involve any benami transaction.
SMT. P. LEELAVATHI (D) BY LRS v. V. SHANKARNARAYANA
RAO (D) BY LRS. [M. R. SHAH, J.]
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7.2 It is further submitted on behalf of the defendants that, as
such, the provisions of the Benami Transactions (Prohibition) Act would
not be applicable retrospectively.   It is vehemently submitted by the
learned counsel appearing on behalf of the original defendants that, as
observed and held by this Court in the case of Binapani Paul v. Pratima
Ghosh (2007) 6 SCC 100, the burden of proving of benami nature of
transaction lies on the person who alleges the transaction to be a benami.
It is submitted that in the aforesaid decision, it is further observed and
held by this Court that the source of money can never be the sole
consideration and it is merely one of the relevant considerations, but not
determinative in character.    It is submitted that, in the present case, the
plaintiff has failed to establish and prove that the purchase of the properties
– Item Nos. I(a) to 1(c) were benami in nature and/or that the intention
of Late G. Venkata Rao was to purchase the suit properties for and on
behalf of the family, but were purchased in the names of defendant Nos.
1 to 3.   It is submitted that, therefore, in the facts and circumstances of
the case, the High Court has rightly dismissed the appeal and has rightly
confirmed the judgment and decree passed by the learned trial Court
dismissing the suit, by specifically observing and holding that the suit
properties – Items I(a) to I(c) were not benami in nature.
Therefore, it
is prayed to dismiss the present appeal.
8. Heard learned counsel appearing on behalf of the respective
parties at length.   In the present case, the original plaintiff instituted the
suit claiming 1/4th  share in the suit properties, including the suit properties
– Item Nos. I(a) to I(c).  Admittedly, the suit properties were purchased
by defendant Nos. 1 to 3 respectively.  However, it was the case on
behalf of the plaintiff that the purchase of the suit properties was benami
transaction as the sale consideration was paid by their father Late G.
Venkata Rao.  The aforesaid is not accepted by the High Court and the
High Court has observed and held that the plaintiff has failed to establish
and prove by leading cogent evidence that the intention of Late G. Venkata
Rao to purchase the suit properties in the names of defendant Nos. 1 to
3 was to purchase for and on behalf of the family and, therefore, the
transaction cannot be said to be benami in nature.
8.1 Therefore, the short question that is posed for consideration
of this Court is, whether in the facts and circumstances of the case and
merely because some financial assistance has been given by the father
to the sons to purchase the properties, can the transactions be said to
benami in nature?
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9. While considering the aforesaid question, few decisions of this
Court on the benami transactions/transactions of benami nature, are
required to be referred to:
9.1 In the case of Thakur Bhim Singh (supra), it is observed
and held by this Court that while considering a particular transaction as
benami, the intention of the person who contributed the purchase money
is determinative of the nature of transaction.  It is further observed by
this Court as to what the intention of the person who contributed the
purchase money, has to be decided on the basis of the surrounding
circumstance; the relationship of the parties; the motives governing their
action in bringing about the transaction and their subsequent conduct
etc.   In the aforesaid decision, this Court considered the earlier decision
of this Court in Jaydayal Poddar v. Bibi Hazra (Mst.) (1974) 1 SCC
3, more particularly para 6, and thereafter summed up in para 17 and
para 18.  Paras 17 and 18 of that judgment are as under:
“17. The principle enunciated by Lord Macmillan in the case of
Manmohan Das [AIR 1931 PC 175 : 134 IC 66 9 : 1931 ALJ
550] has been followed by this Court in Jaydayal Poddar v. Bibi
Hazra (Mst) [(1974) 1 SCC 3 : (1974) 2 SCR 90] where Sarkaria,
J., observed thus: (SCC p. 6, para 6)
“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
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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 the relevant indicia,
the courts are usually guided by these circumstances:(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
dealing with the property after the sale.”
18. The principle governing the determination of the question
whether a transfer is a benami transaction or not may be summed
up thus: (1) the burden of showing that a transfer is a benami
transaction lies on the person who asserts that it is such a
transaction; (2) it is proved that the purchase money came from a
person other than the person in whose favour the property is
transferred, the purchase is prima facie assumed to be for the
benefit of the person who supplied the purchase money, unless
there is evidence to the contrary; (3) the true character of the
transaction is governed by the intention of the person who has
contributed the purchase money and (4) the question as to what
his intention was has to be decided on the basis of the surrounding
circumstances, the relationship of the parties, the motives governing
their action in bringing about the transaction and their subsequent
conduct, etc.”
9.2 In Binapani Paul case (supra), this Court again had an
occasion to consider the nature of benami transactions.  After considering
a catena of decisions of this Court on the point, this Court in that judgment
observed and held that the source of money had never been the sole
consideration. It is merely one of the relevant considerations but not
determinative in character.  This Court ultimately concluded after
considering its earlier judgment in the case of Valliammal v.
Subramaniam (2004) 7 SCC 233 that while considering whether a
particular transaction is benami in nature, the following six circumstances
can be taken as a guide:
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“(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 dealing with the prop-
erty after the sale. (Jaydayal Poddar v. Bibi Hazra (supra),
SCC p. 7, para6)”
10. Applying the law laid down by this Court in the aforesaid
decisions to the facts of the case on hand, we are of the opinion that the
High Court has rightly come to the conclusion that the plaintiff has failed
to prove that the purchase of the suit properties – Item Nos. I(a) to I(c)
in the names of defendant Nos. 1 to 3 were benami in nature.   It is true
that, at the time of purchase of the suit properties – Item Nos. I(a) to
I(c), some financial assistance was given by Late G. Venkata Rao.
However, as observed by this Court in the aforesaid decisions, that cannot
be the sole determinative factor/circumstance to hold the transaction as
benami in nature.   The plaintiff has miserably failed to establish and
prove the intention of the father to purchase the suit properties for and
on behalf of the family, which were purchased in the names of defendant
Nos. 1 to 3.  It is required to be noted that, as such, the plaintiff –
daughter has not stepped into the witness box
and that the evidence on
behalf of the plaintiff has been given by her husband who, as such, can
be said to be an outsider, so far as the joint family is concerned.   Apart
from that, it has come on record that the plaintiff and her husband were
maintained by Late G. Venkata Rao.  The financial assistance was also
given to the plaintiff and her husband to purchase the residential house
at Bangalore.  Late G. Venkata Rao, therefore, provided a shelter to his
daughter and, as observed herein above, also gave the financial assistance
to purchase the residential house at Bangalore.  It has also come on
record that Late G. Venkata Rao even purchased the share certificates
and his daughter-original plaintiff was also given certain number of shares.
Therefore, considering the aforesaid facts and circumstances of the case,
Late G. Venkata Rao also must have given the financial assistance to
defendant Nos. 1 to 3 – sons and helped them in purchase of the
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properties.  Therefore, the intention of Late G. Venkata Rao to give the
financial assistance to purchase the properties in the names of defendant
Nos. 1 to 3 cannot be said to be to purchase the properties for himself
and/or his family members and, therefore, as rightly observed by the
High Court, the transactions of purchase of the suit properties – Item
Nos. I(a) to I(c) in the names of the defendant Nos. 1 to 3 cannot be
said to be benami in nature.  The intention of Late G. Venkata Rao was
to provide the financial assistance for the welfare of his sons and not
beyond that.   None of the other ingredients to establish the transactions
as benami transactions, as held by this Court in the aforesaid decisions,
are satisfied, except that some financial assistance was provided by
Late G. Venkata Rao.  In the facts and circumstances of the case and
considering the evidence on record, the purchase of the suit properties –
Item Nos. I(a) to I(c) in the names of defendant Nos. 1 to 3 cannot be
said to be benami transactions and, therefore, as rightly observed and
held by the learned trial Court and confirmed by the High Court, the
plaintiff has no right to claim 1/4th share in the suit properties – Item
Nos. I(a) to I(c) which were purchased by the sons in their names by
separate sale deeds.  We are in complete agreement with the view taken
by the High Court.
11. In view of the above and for the reasons stated above, the
present appeal fails and deserves to be dismissed and is accordingly
dismissed.   No costs.
Ankit Gyan
                                                             Appeal dismissed.