SAMPAT BABSO KALE & ANR. …APPELLANT(S) Versus THE STATE OF MAHARASHTRA …RESPONDENT(S)

Section 302/498A of Indian Penal Code (‘IPC’ for short) read with Section 34 of IPC
Trail court acquitted - High Court convicted - Apex court
held that
Whether we can convict the accused only on the basis of
these dying declarations.
In a case of the present nature where the victim had 98% burns and the doctor has stated from the record that a painkiller was injected at 3.30 a.m. and the dying declaration had been recorded thereafter, there is a serious doubt
whether   the   victim   was   in   a   fit   state   of   mind   to   make   the statement.  She was suffering from 98% burns.  She must have been in great agony and once a sedative had been injected, the possibility   of   her   being   in   a   state   of   delusion   cannot   be completely ruled out.
It would also be pertinent to mention that the endorsement made by the doctor that the victim was in a fit state of mind to make the statement has been made not before the statement but after the statement was recorded.
Normally it should be the other way round.
No doubt, a dying declaration is an extremely important piece of evidence and where the Court is satisfied that the dying declaration   is   truthful,   voluntary   and   not   a   result   of   any
extraneous influence, the Court can convict the accused only on the basis of a dying declaration.
In the present case, as we have already held above, there was some doubt as to
whether the victim was in a fit state of mind to make the statement.  
 No doubt, the doctor had stated that she was in a fit state of mind but he himself had, in his evidence, admitted that in the case of a victim with 98% burns, the shock may lead to delusion.  
Furthermore, in our view, the combined   effect   of   the   trauma   with   the   administration  of painkillers   could   lead   to  a   case   of   possible   delusion,   and therefore, there is a need to look for corroborative evidence in the present case.   
Non - Examination of neighbourhoods - fatal to the prosecution
none of the witnesses from the neighbourhood have been examined.     Even   as   per   the  prosecution   case   it   was   the neighbours who first raised an alarm.  There is no explanation
why none of them have been examined.  It is also the prosecution case that the accused husband along with another neighbour went to the hospital to arrange for an ambulance.  This person
has not been examined.  
The   non­examination   of   these important   witnesses   leads   to   non­corroboration   of   the  dying declaration.  The best witnesses would have been the neighbours who reached the spot immediately after the occurrence.   They would have been the best persons to state as to whether the victim told them anything about the occurrence or not.
In view of the aforesaid circumstances the trial court held that   the   prosecution   had   failed   to   prove   its   case   beyond reasonable doubt.   
This finding of the trial court could not be said to be perverse.   It was based on a proper appreciation of evidence.  

The defence, as pointed out above, was that the deceased was not willing to go to the village to look after her in­laws and, therefore, she committed suicide.  The defence cannot be brushed aside.
As pointed out above, the prosecution story is that the appellants­ brother and sister, poured kerosene on the victim and set her on fire.
It is the admitted case that the house   in   which   the   victim   was   residing   with   her   husband consists of one room with a kitchen.  It stands proved that the fire took place in the kitchen and not in the bedroom. 
below a pillow there were some ornaments and other things.  
The panchanama report indicates that the ornaments were one yellow and black mangalsutra, a nathni (nose ring), some glass bangles and peinjan (an ornament worn on the foot).  
It is also recorded that, according to the accused, these ornaments belong to his wife.    
Mangalsutra,   peinjan  and   even   glass   bangles   are   such ornaments which an Indian married woman would normally not remove.  In Indian society these are normally worn by the ladies all the times.   
Therefore, the defence version that the deceased took off all these ornaments and then went to the kitchen and committed suicide cannot be totally ruled out.
The trial court, after discussing the entire evidence in detail, had come to the conclusion that the prosecution had failed to prove its case beyond reasonable doubt.
The High Court came to a different conclusion.
On perusal of the entire evidence and the law on the subject we are of the view that the trial court was right in holding that the prosecution had failed to prove its case beyond reasonable doubt.
In view of the above, we allow the appeals and set aside the judgment of the High Court.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 694­695  OF 2011
SAMPAT BABSO KALE & ANR. …APPELLANT(S)
Versus
THE STATE OF MAHARASHTRA        …RESPONDENT(S)
J U D G M E N T
Deepak Gupta, J.
1. These   appeals   by   the   accused   are   directed   against   the
judgment   of   the   High   Court   of   Bombay   dated   13.10.2010   in
Criminal Appeal No. 473 of 1991 whereby the appeal of the State
was   allowed   and   the   appellants   were   convicted   for   offences
punishable under Section 302/498A of Indian Penal Code (‘IPC’
for short) read with Section 34 of IPC and were sentenced to
undergo imprisonment for life.
2. Briefly stated the facts are that the Appellant No. 2, Tarabai
Dhanaji Dhaigude is the sister of the Appellant No. 1, Sampat
2
Babso Kale.    Appellant No. 1, was married to Sharada Sampat
Kale   on   25.04.1987.     After   residing   for   about   one   year   at
Thergaon, Chinchwad, they shifted to a quarter in MIDC Colony,
Chinchwad.   Sharada died of burn injuries suffered during the
night intervening 08.07.1989 and 09.07.1989 in the wee hours of
the morning of 09.07.1989.  It is also not disputed that on the
date of the occurrence, the Appellant No. 2 had come to stay at
the house of her brother i.e. the Appellant No. 1.  Burn injuries
were to the extent of 98%.  Sharada made two dying declarations
– the first was in the nature of the information given to Dr.
Sanjeev Chibbar (PW­5), who had attended upon her when she
was admitted to the hospital and the second was a formal dying
declaration   made   to   Mr.   Kamlakar   Adhav,   Special   Judicial
Magistrate, Pune (PW­2).
3. The prosecution story is that relations between husband
and wife were cordial for about one and a half years.  Thereafter,
Appellant No. 1 started ill treating his wife since she could not
conceive.  It is also alleged that, in fact, he wanted to marry again
even when Sharada was alive.  For this reason, he and his sister
3
had with common intention poured kerosene on Sharada and set
her on fire.
4. The   defence   version   is   that   Sharada   belongs   to   a
comparatively well­off family.  She was residing with her husband
in MIDC Colony quarter which had all facilities.  The case set up
by the defence is that the parents of the appellants lived in a
small one room hut in village Lonand with no facilities of toilet
etc..  Appellant No.1 wanted that his wife should go to look after
his parents.  She was not willing to do so since material comforts
like TV, WC, etc. were not available in the village and the parents
lived   in   a   very   small   one   room   hutment.     According   to   the
defence,   on   the   evening   of   08.07.1989,   both   the   appellants
requested Sharada to go to the village to look after the ageing
parents.   Sharada, who was sensitive, got upset and for this
reason committed suicide.  It was Appellant No. 1 who raised an
alarm and tried to douse the fire by throwing water on Sharada.
He requested the neighbours to call for an ambulance but when
nobody   could   be   contacted   on   phone,   he   along   with   one
neighbour went to the hospital to get an ambulance.  Thereafter,
Sharada was taken to Sassoon Hospital, Pune where she was
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admitted in the Burns Ward.  Unfortunately, she passed away in
the morning.
5. The   accused   were   charged   and   tried   for   the   murder   of
Sharada.  The trial court acquitted the accused by giving them
the benefit of doubt mainly on the ground that the possibility of
the deceased having committed suicide could not be ruled out.
The trial court did not rely upon the dying declarations.  On the
other hand, the High Court came to the conclusion that there
was no reason to discredit the dying declarations and held that
dying declarations were totally reliable in view of the testimonies
of PW­2 and PW­5.  The High Court held that the reasoning given
by the trial court was perverse and thereafter, allowed the appeal.
Hence, the present appeals.
6. We have heard learned counsel for the appellants.   The
main argument of the learned counsel for the appellants is that
the deceased was a very sensitive lady.  She, as is apparent from
the letters exchanged between her and her husband, was madly
in love with him.  She, however, did not want to go and live in a
village, that too in a small one room hutment and being sensitive
in nature, she committed suicide.  It is further alleged that even
5
the sister of the deceased had committed suicide.   It was also
contended that there are various discrepancies in the evidence
and the dying declarations cannot be relied upon.  It was further
urged that the deceased died due to a fire in the kitchen of the
house and not in the bedroom which clearly indicated that she
had committed suicide.  It was also contended that the defence
version was a probable version and once there was a doubt then
benefit of doubt should have been given to the accused persons.
Lastly it was contended that the appellate court should not have
lightly interfered with the findings given by the trial court.
7.  With regard to the powers of an appellate court in an appeal
against   acquittal,   the   law   is   well   established   that   the
presumption of innocence which is attached to every accused
person gets strengthened when such an accused is acquitted by
the trial court and the High Court should not lightly interfere
with   the   decision   of   the   trial   court   which   has   recorded   the
evidence and observed the demeanour of witnesses.  This Court
in the case of Chandrappa & Ors. v. State of Karnataka1
, laid
down the following principles:­
1
(2007) 4 SCC 415
6
“42. From the above decisions, in our considered view, the
following   general   principles   regarding   powers   of   the
appellate court  while dealing with  an appeal  against an
order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate
and   reconsider   the   evidence   upon   which   the   order   of
acquittal is founded.
(2)   The   Code   of   Criminal   Procedure,   1973   puts   no
limitation, restriction or condition on exercise of such power
and an appellate court on the evidence before it may reach
its own conclusion, both on questions of fact and of law.
(3)   Various   expressions,   such   as,   “substantial   and
compelling reasons”, “good and sufficient grounds”, “very
strong   circumstances”,   “distorted   conclusions”,   “glaring
mistakes”, etc. are not intended to curtail extensive powers
of an appellate court in an appeal against acquittal. Such
phraseologies   are   more   in   the   nature   of   “flourishes   of
language” to emphasise the reluctance of an appellate court
to interfere with acquittal than to curtail the power of the
court   to   review   the   evidence   and   to   come   to   its   own
conclusion.
(4) An appellate court, however, must bear in mind that in
case of acquittal, there is double presumption in favour of
the   accused.  Firstly,   the   presumption   of   innocence   is
available   to   him   under   the   fundamental   principle   of
criminal jurisprudence that every person shall be presumed
to be innocent unless he is proved guilty by a competent
court   of   law.  Secondly,   the   accused   having   secured   his
acquittal,   the   presumption   of   his   innocence   is   further
reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis
of the evidence on record, the appellate court should not
disturb the finding of acquittal recorded by the trial court.”
8. We may first deal with the evidence in relation to the dying
declarations.   Dr. Sanjeev Chibbar (PW­5) states that he was
working in Sassoon Hospital, Pune in Ward No. 27 where the
deceased Sharada Sampat Kale was brought with 98% injuries of
burn.  He asked her how she had suffered the burn injuries and
she replied as follows:
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“On being doused by her husband Sampat Baba Kale and
his   sister   with   kerosene   and   set   on   fire   at   12.30   a.m.
(approximately).”
9. On the basis of the information given by the deceased, PW­5
entered this as the history of the case in his own writing and he
has   proved   the   same   in   the   Court.     He   further   states   that
thereafter PW­2 came to the ward to record the dying declaration
of   the   deceased.     This   witness   states   that   before   the   dying
declaration was recorded by the PW­2, he examined her and
found that she was mentally fit and conscious to make her dying
declaration.   He further states that the dying declaration was
recorded by the Special Judicial Magistrate in his presence in
question and answer form.  Since the hands of the deceased were
burnt,   PW­2   took   the   impression   of   the   left   big   toe   on   the
statement.   He made the following endorsement on the dying
declaration:
“The statement issued to me by the patient is in the total
presence of her mental faculties and in presence of the staff
nurses.  I certify her fit to issue this statement.”
10. PW­5 further states that he signed the aforesaid statement
and, in his presence, the Special Judicial Magistrate read over
the contents of the dying declaration to Sharada who admitted
8
the same as correct.  Thereafter, PW­2 made an endorsement to
this   effect   and   signed   the   same.     The   witness   in   crossexamination admitted that in case of patients of serious burn
injuries painkillers are administered to the patients.   He also
admits that in such cases the trauma may cause delusion in the
mind of the person.   After perusal of the treatment chart he
stated that Fortwin injection was given to the deceased at 3.30
a.m..  He does not rule out the possibility of the injection having
been given before recording the dying declaration.
11. The other important witness is Mr. Kamlakar Adhav (PW­2),
who was Special Judicial Magistrate, Pune.  According to him, he
was   asked   by  the   police  to   record   the  statement   of   Sharada
Sampat Kale and thereafter he went to Ward No.27 in Sassoon
Hospital, Pune.  He was told by PW­5 that the female patient was
fit and fully conscious to make the dying declaration.   On his
asking,   the   deceased   told   him   that   her   name   was   Sharada
Sampat Kale, aged 25 years and she gave her complete address.
9
She was conscious and told him that she was voluntarily making
the statement.   The dying declaration which this witness has
proved reads as follows:
“Q.1: Whether you are fully conscious?
A­ Yes.
Q.2: I am Spl. Judicial Magistrate, Do you understood
this?
A: Yes.
Q.3: How you sustained burns?
A. Today on 8.7.89 at night at about 1.30 hrs. at my
residence  my husband Sampat Babasaheb  Kale and my
sister in law Tarabai Dhanaji Dhaigude poured kerosene on
my person and set me on fire and I sustained burn injuries.
Quarrels used to take place between we both husband and
wife and he also used to quarrel with me that I could not
give birth to child and used to ill treat me.   Yesterday at
night due to above reason both of them poured kerosene on
me and set me on fire and I sustained burns.”
12. Rest of the aforesaid statement is similar to that given to
PW­5 and need not be repeated.  A suggestion has been put to
PW­2 that this statement was not recorded in the presence of
PW­5 and,  therefore, the   name  of  Dr.  Chibbar  has  not  been
mentioned by him in the dying declaration.  He denied the said
suggestion.  He denied the suggestion that Sharada was not in a
position to utter a single word because of extensive burn injuries.
10
13. In our view, though dying declarations stand proved, the
issue is whether we can convict the accused only on the basis of
these dying declarations.  In a case of the present nature where
the victim had 98% burns and the doctor has stated from the
record that a painkiller was injected at 3.30 a.m. and the dying
declaration had been recorded thereafter, there is a serious doubt
whether   the   victim   was   in   a   fit   state   of   mind   to   make   the
statement.  She was suffering from 98% burns.  She must have
been in great agony and once a sedative had been injected, the
possibility   of   her   being   in   a   state   of   delusion   cannot   be
completely ruled out.  It would also be pertinent to mention that
the endorsement made by the doctor that the victim was in a fit
state of mind to make the statement has been made not before
the statement but after the statement was recorded.  Normally it
should be the other way round.
14. No doubt, a dying declaration is an extremely important
piece of evidence and where the Court is satisfied that the dying
declaration   is   truthful,   voluntary   and   not   a   result   of   any
extraneous influence, the Court can convict the accused only on
the basis of a dying declaration.  We need not refer to the entire
11
law but it would be apposite to refer to the judgment of this Court
in   the   case   of  Sham   Shankar   Kankaria  v.  State   of
Maharashtra2
 held as follows:
“11. Though a dying declaration is entitled to great weight,
it is worthwhile to note that the accused has no power of
cross­examination. Such a power is essential for eliciting
the truth as an obligation of oath could be. This is the
reason   the   court   also   insists   that   the   dying  declaration
should be of such a nature as to inspire full confidence of
the court in its correctness. The court has to be on guard
that the statement of deceased was not as a result of either
tutoring   or  prompting   or  a   product   of   imagination.   The
court must be further satisfied that the deceased was in a
fit state of mind after a clear opportunity to observe and
identify the assailant. Once the court is satisfied that the
declaration was true and voluntary, undoubtedly, it can
base  its conviction without any further corroboration.  It
cannot be laid down as an absolute rule of law that the
dying declaration cannot form the sole basis of conviction
unless it is corroborated. The rule requiring corroboration
is merely a rule of prudence………….”
15.  In the present case, as we have already held above, there
was some doubt as to whether the victim was in a fit state of
mind to make the statement.   No doubt, the doctor had stated
that she was in a fit state of mind but he himself had, in his
evidence, admitted that in the case of a victim with 98% burns,
the shock may lead to delusion.  Furthermore, in our view, the
combined   effect   of   the   trauma   with   the   administration   of
painkillers   could   lead   to   a   case   of   possible   delusion,   and
2
(2006) 13 SCC 165
12
therefore, there is a need to look for corroborative evidence in the
present case. 
16. The two accused filed separate written statements under
Section 313 of Criminal Procedure Code (‘CrPC’ for short).  The
defence, as pointed out above, was that the deceased was not
willing to go to the village to look after her in­laws and, therefore,
she committed suicide.  The defence cannot be brushed aside.
17. There are two factors which cast a grave doubt with regard
to the prosecution story.  As pointed out above, the prosecution
story is that the appellants­ brother and sister, poured kerosene
on the victim and set her on fire.  It is the admitted case that the
house   in   which   the   victim   was   residing   with   her   husband
consists of one room with a kitchen.  It stands proved that the
fire took place in the kitchen and not in the bedroom.   The
panchanama  (Exhibit 13) and the evidence of Narayan,  panch
witness   (PW­1)   clearly   show   that   when   the   accused   Sampat
Babso Kale was taken to his residence after he was arrested, he
opened the door by removing the lock.  This clearly indicates that
after the victim had been taken to the hospital, the premises was
lying locked.   Presumably, the second appellant or any other
13
person in the house had also gone with the victim.  In the first
room there was a cot, mattress, mosquito net, etc..  There was a
kitchen in the adjoining area which had a separate privy and
bathroom.  There was a plastic container containing kerosene oil.
There was smell of kerosene in the kitchen and there was water
on the floor of the kitchen.  A match box and some burnt cloth
were also found in the kitchen.  This proves that the occurrence
took place in the kitchen and not in the bedroom.
18. The   second   important   factor   which   comes   out   from   the
statement of the  panch  witnesses is that in the first room in
which there was a cot, there were two pillows on the cot and
below a pillow there were some ornaments and other things.  The
panchanama report indicates that the ornaments were one yellow
and black mangalsutra, a nathni (nose ring), some glass bangles
and peinjan (an ornament worn on the foot).  It is also recorded
that, according to the accused, these ornaments belong to his
wife.    Mangalsutra,   peinjan  and   even   glass   bangles   are   such
ornaments which an Indian married woman would normally not
remove.  In Indian society these are normally worn by the ladies
all the times.   Therefore, the defence version that the deceased
14
took off all these ornaments and then went to the kitchen and
committed suicide cannot be totally ruled out.
19. Another factor which needs to be taken into consideration is
that none of the witnesses from the neighbourhood have been
examined.     Even   as   per   the   prosecution   case   it   was   the
neighbours who first raised an alarm.  There is no explanation
why none of them have been examined.  It is also the prosecution
case that the accused husband along with another neighbour
went to the hospital to arrange for an ambulance.  This person
has not been examined.   The   non­examination   of   these
important   witnesses   leads   to   non­corroboration   of   the   dying
declaration.  The best witnesses would have been the neighbours
who reached the spot immediately after the occurrence.   They
would have been the best persons to state as to whether the
victim told them anything about the occurrence or not.
20. In view of the aforesaid circumstances the trial court held
that   the   prosecution   had   failed   to   prove   its   case   beyond
reasonable doubt.   This finding of the trial court could not be
said to be perverse.   It was based on a proper appreciation of
evidence.  The trial court, after discussing the entire evidence in
15
detail, had come to the conclusion that the prosecution had failed
to prove its case beyond reasonable doubt.  The High Court came
to a different conclusion.  On perusal of the entire evidence and
the law on the subject we are of the view that the trial court was
right in holding that the prosecution had failed to prove its case
beyond reasonable doubt.
21. In view of the above, we allow the appeals and set aside the
judgment of the High Court.
22. Appellant No. 1 is stated to be in jail.  He shall be released
forthwith, if not required in any other case.  Appellant No. 2 is on
bail.  Her bail bonds, if any, stand discharged.
 
….……………………..J.
(S. A. BOBDE)
.….…………………….J.
(DEEPAK GUPTA)
New Delhi

April 09, 2019

RUPALI DEVI … APPELLANT VERSUS STATE OF UTTAR PRADESH & ORS. … RESPONDENTS

“Whether a woman forced to leave her matrimonial home on account of acts and conduct that constitute cruelty can initiate and access the legal process within the jurisdiction of the courts where she is forced to take shelter with the parents or other family members”. 
The opinions of this Court on the aforesaid question being sharply divided, the present reference to a larger Bench has been made for consideration of the question indicated hereinabove.
 In (i) Y. Abraham Ajith and Others v. Inspector of Police, Chennai and Another (2004) 8 SCC 100.
(ii) Ramesh and Others v. State of Tamil Nadu (2005) 3 SCC 507.
(iii) Manish Ratan and Others v. State of Madhya Pradesh and Another (2007) 1 SCC 262.
(iv) Amarendu Jyoti and Others v. State of Chhattisgarh and Others (2014) 12 SCC 362.
a view has been taken that if on account of cruelty committed to a wife in a
matrimonial home she takes shelter in the parental home and if no specific act of
commission of cruelty in the parental home can be attributed to the husband or
his relatives, the initiation of proceedings under Section 498A in the courts having
jurisdiction in the area where the parental home is situated will not be
permissible.
The core fact that would be required to be noted in the above cases is that  there were no allegations made on behalf of the aggrieved wife that any overt act of cruelty or harassment had been caused to her at the parental home after she had left the matrimonial home.  It is in these circumstances that the view had been expressed in the above cases that the offence of cruelty having been committed in the matrimonial home the same does not amount to a continuing offence committed in the parental home to which place the aggrieved wife may
have later shifted.

Whether in a case where cruelty had been committed in a matrimonial home by the husband or the relatives of the husband and the wife leaves the matrimonial home and takes shelter in the parental home located at a different place, would the courts situated at the place of the parental home of the wife have jurisdiction to entertain the complaint under Section 498A.

This is in a situation where no overt act of cruelty or harassment is alleged to have been
committed by the husband at the parental home where the wife had taken shelter.
whether the exception carved out by Section 179 would have any application to confer jurisdiction in the courts situated in the local area where the parental house of the
wife is located.

 Section 498A of the Indian Penal Code was introduced by the Criminal Law
(second amendment) Act, 1983. In addition to the aforesaid amendment in the Indian
Penal Code, the provisions of Sections 174 and 176 of the Code of Criminal Procedure,
1973 relating to inquiries by police in case of death by suicides and inquiries by
magistrates into cause of such deaths were also amended. Section 198A was also
inserted in the Code of Criminal Procedure with regard to prosecution of offences under
Section 498A. Further by an amendment in the first schedule to the Cr.PC the offence
under Section 498A was made cognizable and non-bailable. Of considerable
significance is the introduction of Section 113A in the Indian Evidence Act by the Criminal
Law (second amendment) Act, 1983 providing for presumption as to abetment of suicide
by a married woman to be drawn if such suicide had been committed within a period of
seven years from the date of marriage of the married woman and she had been
subjected to cruelty. 
The Protection of Women from Domestic Violence Act, as the object behind its enactment would indicate, is to provide a civil remedy to victims of domestic violence as against the remedy in criminal law which is what is provided under Section 498A of the Indian Penal Code. The definition of the Domestic Violence in the Protection of Women from Domestic Violence Act, 2005 contemplates harm or injuries that endanger the health, safety, life, limb or wellbeing, whether mental or physical, as well as emotional abuse. 
The said definition would certainly, for reasons stated above, have a close connection with
Explanation A & B to Section 498A, Indian Penal Code which defines cruelty. The
provisions contained in Section 498A of the Indian Penal Code, undoubtedly,
encompasses both mental as well as the physical well-being of the wife. Even
the silence of the wife may have an underlying element of an emotional distress
and mental agony. 
Her sufferings at the parental home though may be directly attributable to commission of acts of cruelty by the husband at the matrimonial home would, undoubtedly, be the consequences of the acts committed at the matrimonial home. Such consequences, by itself, would amount to distinct offences committed at the parental home where she has taken shelter. The adverse effects on the mental health in the parental home though on account of the acts committed in the matrimonial home would, in our considered view, amount to commission of cruelty within the meaning of Section 498A at the parental home. The consequences of the cruelty committed at the matrimonial home results in repeated offences being committed at the parental home. This is the kind of offences contemplated under Section 179 Cr.P.C which would
squarely be applicable to the present case as an answer to the question raised.

We, therefore, hold that the courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498A of the Indian Penal Code.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.71 OF 2012
RUPALI DEVI … APPELLANT
VERSUS
STATE OF UTTAR PRADESH & ORS. … RESPONDENTS
WITH
CRIMINAL APPEAL NO. 619 OF 2019
[Arising out of SLP(Crl.) No. 5695/2010]
CRIMINAL APPEAL NO. 620 OF 2019
[Arising out of SLP(Crl.) No. 8246/2010]
CRIMINAL APPEAL NO. 621 OF 2019
[Arising out of SLP(Crl.) No. 7387/2011]
CRIMINAL APPEAL NO. 622 OF 2019
[Arising out of SLP(Crl.) No. 5052/2014]
CRIMINAL APPEAL NO. 623 OF 2019
[Arising out of SLP(Crl.) No. 5139/2014]
J U D G M E N T
RANJAN GOGOI, CJI
1. “Whether a woman forced to leave her matrimonial home on account of
acts and conduct that constitute cruelty can initiate and access the legal process
within the jurisdiction of the courts where she is forced to take shelter with the
parents or other family members”. This is the precise question that arises for
determination in this group of appeals.
2
2. The opinions of this Court on the aforesaid question being sharply divided,
the present reference to a larger Bench has been made for consideration of the
question indicated hereinabove.
3. In
(i) Y. Abraham Ajith and Others v. Inspector of Police,
Chennai and Another (2004) 8 SCC 100.
(ii) Ramesh and Others v. State of Tamil Nadu (2005) 3 SCC
507.
(iii) Manish Ratan and Others v. State of Madhya Pradesh
and Another (2007) 1 SCC 262.
(iv) Amarendu Jyoti and Others v. State of Chhattisgarh and
Others (2014) 12 SCC 362.
a view has been taken that if on account of cruelty committed to a wife in a
matrimonial home she takes shelter in the parental home and if no specific act of
commission of cruelty in the parental home can be attributed to the husband or
his relatives, the initiation of proceedings under Section 498A in the courts having
jurisdiction in the area where the parental home is situated will not be
permissible. The core fact that would be required to be noted in the above cases
is that there were no allegations made on behalf of the aggrieved wife that any
overt act of cruelty or harassment had been caused to her at the parental home
after she had left the matrimonial home. It is in these circumstances that the view
had been expressed in the above cases that the offence of cruelty having been
committed in the matrimonial home the same does not amount to a continuing
offence committed in the parental home to which place the aggrieved wife may
have later shifted.
4. In Sujata Mukherjee v. Prashant Kumar Mukherjee (1997) 5 SCC 30;
Sunita Kumari Kashyap v. State of Bihar and Another (2011) 11 SCC 301 and
3
State of M.P. v. Suresh Kaushal & Anr. (2003) 11 SCC 126 a seemingly
different view has been taken. However, the said view may appear to be based
in the particular facts of each of the cases in question. For instance, in Sujata
Mukherjee (Supra) there was a specific allegation that the husband, after
committing acts of cruelty in the matrimonial home, had also gone to the parental
house of the wife where she had taken shelter and had assaulted her there. On
the said facts this court in Sujata Mukherjee (Supra) held that the offence is a
continuing offence under Section 178 (c) of the Cr.P.C. In Sunita Kumari
Kashyap (Supra), there was an allegation that the wife was illtreated by her
husband who left her at her parental home and further that the husband had not
made any enquiries about her thereafter. There was a further allegation that
even when the wife had tried to contact the husband, he had not responded. In
the said facts, this court took the view that the consequences of the offence
under Section 498A have occurred at the parental home and, therefore, the court
at that place would have jurisdiction to take cognizance of the offence alleged in
view of Section 179 of the Cr.P.C. Similarly in State of M.P. vs. Suresh Kaushal
(Supra) as the miscarriage was caused to the wife at Jabalpur, her parental
home, on account of cruelty meted out to her in the matrimonial home, it was held
that the court at the place of the parental home of the wife would have jurisdiction
to entertain the complaint under Section 179 Cr.P.C.
5. The above two views which the learned referring bench had considered
while making the present reference, as already noticed, were founded on the
peculiar facts of the two sets of cases before the Court. It may be possible to
sustain both the views in the light of the facts of the cases in which such view
was rendered by this court. What confronts the court in the present case is
4
however different. Whether in a case where cruelty had been committed in a
matrimonial home by the husband or the relatives of the husband and the wife
leaves the matrimonial home and takes shelter in the parental home located at a
different place, would the courts situated at the place of the parental home of the
wife have jurisdiction to entertain the complaint under Section 498A. This is in a
situation where no overt act of cruelty or harassment is alleged to have been
committed by the husband at the parental home where the wife had taken shelter.
6. A look at the provisions of Chapter XIII of the Code of Criminal Procedure,
1973 (Cr.P.C) dealing with the jurisdiction of the Criminal Court in inquires and
trials will now be required. Section 177 of the Code of Criminal Procedure
contemplates that “every offence shall ordinarily be inquired into and tried by a
Court within whose local jurisdiction it was committed”. It is, therefore, clear that
in the normal course, it is the court within whose local jurisdiction the offence is
committed that would have the power and authority to take cognizance of the
offence in question.
7. Sections 178 and 179 are exceptions to the above rule and may be set out
hereinunder:
“178.Place of inquiry or trial.-
(a) When it is uncertain in which of several local areas an
offence was committed, or
(b) where an offence is committed partly in one local area and
partly in another, or
(c) where an offence is a continuing one, and continues to be
committed in more local areas than one, or
(d) where it consists of several acts done in different local areas,
it may be inquired into or tried by a Court having jurisdiction over
any of such local areas.”
5
“179. Offence triable where act is done or consequence
ensues.- When an act is an offence by reason of anything which
has been done and of a consequence which has ensued, the
offence may be inquired into or tried by a Court within whose
local jurisdiction such thing has been done or such
consequence has ensued.”
8. Section 178 creates an exception to the “ordinary rule” engrafted in
Section 177 by permitting the courts in another local area where the offence is
partly committed to take cognizance. Also if the offence committed in one local
area continues in another local area, the courts in the latter place would be
competent to take cognizance of the matter. Under Section 179, if by reason of
the consequences emanating from a criminal act an offence is occasioned in
another jurisdiction, the court in that jurisdiction would also be competent to take
cognizance. Thus, if an offence is committed partly in one place and partly in
another; or if the offence is a continuing offence or where the consequences of a
criminal act result in an offence being committed at another place, the exception
to the “ordinary rule” would be attracted and the courts within whose jurisdiction
the criminal act is committed will cease to have exclusive jurisdiction to try the
offence.
9. At this stage it may also be useful to take note of what can be understood
to a continuing offence. The issue is no longer res integra having been answered
by this court in State of Bihar v. Deokaran Nenshi (1972) 2 SCC 890. Para 5
may be usefully noticed in this regard.
“5. A continuing offence is one which is susceptible of
continuance and is distinguishable from the one which is
committed once and for all. It is one of those offences which
arises out of a failure to obey or comply with a rule or its
requirement and which involves a penalty, the liability for which
continues until the rule or its requirement is obeyed or
6
complied with. On every occasion that such disobedience or
non-compliance occurs and reoccurs, there is the offence
committed. The distinction between the two kinds of offences
is between an act or omission which constitutes an offence
once and for all and an act or omission which continues, and
therefore, constitutes a fresh offence every time or occasion on
which it continues. In the case of a continuing offence,
there is thus the ingredient of continuance of the offence which
is absent in the case of an offence which takes place when an
act or omission is committed once and for all.”
10. The question that has posed for an answer has nothing to do with the
provisions of Section 178 (b) or (c). What has to be really determined is whether
the exception carved out by Section 179 would have any application to confer
jurisdiction in the courts situated in the local area where the parental house of the
wife is located.
11. To answer the above question, one will have to look into the Statement of
Objects and Reasons of the Criminal Law [2nd Amendment Act, 1983 (Act 46 of
1983)] by which Section 498A was inserted in the Indian Penal Code. The
section itself may be noticed in the first instance:
“498A.Husband or relative of husband of a woman
subjecting her to cruelty.—Whoever, being the husband or
the relative of the husband of a woman, subjects such woman
to cruelty shall be punished with imprisonment for a term which
may extend to three years and shall also be liable to fine.
Explanation.—For the purposes of this section, “cruelty” means
—
(a) any wilful conduct which is of such a nature as is likely to
drive the woman to commit suicide or to cause grave injury or
danger to life, limb or health (whether mental or physical) of the
woman; or
(b) harassment of the woman where such harassment is with a
view to coercing her or any person related to her to meet any
unlawful demand for any property or valuable security or is on
account of failure by her or any person related to her to meet
such demand.”
7
12. Section 498A of the Indian Penal Code was introduced by the Criminal Law
(second amendment) Act, 1983. In addition to the aforesaid amendment in the Indian
Penal Code, the provisions of Sections 174 and 176 of the Code of Criminal Procedure,
1973 relating to inquiries by police in case of death by suicides and inquiries by
magistrates into cause of such deaths were also amended. Section 198A was also
inserted in the Code of Criminal Procedure with regard to prosecution of offences under
Section 498A. Further by an amendment in the first schedule to the Cr.PC the offence
under Section 498A was made cognizable and non-bailable. Of considerable
significance is the introduction of Section 113A in the Indian Evidence Act by the Criminal
Law (second amendment) Act, 1983 providing for presumption as to abetment of suicide
by a married woman to be drawn if such suicide had been committed within a period of
seven years from the date of marriage of the married woman and she had been
subjected to cruelty. Section 113A is in the following term:
“113-A. Presumption as to abetment of suicide by a
married woman.– When the question is whether the
commission of suicide by a woman had been abetted by her
husband or any relative of her husband and it is shown that
she had committed suicide within a period of seven years
from the date of her marriage and that her husband or such
relative of her husband had subjected her to cruelty, the
Court may presume, having regard to all the other
circumstances of the case, that such suicide had been
abetted by her husband or by such relative of her husband.
Explanation.– For the purposes of this section, “cruelty”
shall have the same meaning as in section 498-A of the
Indian Penal Code (45 of 1860).”
13. The object behind the aforesaid amendment, undoubtedly, was to combat the
increasing cases of cruelty by the husband and the relatives of the husband on the wife
which leads to commission of suicides or grave injury to the wife besides seeking to deal
with harassment of the wife so as to coerce her or any person related to her to meet any
unlawful demand for any property, etc. The above stated object of the amendment
cannot be overlooked while answering the question arising in the present case. The
8
judicial endeavour must, therefore, always be to make the provision of the laws
introduced and inserted by the Criminal Laws (second amendment) Act, 1983 more
efficacious and effective in view of the clear purpose behind the introduction of the
provisions in question, as already noticed.
14. “Cruelty” which is the crux of the offence under Section 498A IPC is
defined in Black’s Law Dictionary to mean “The intentional and malicious infliction
of mental or physical suffering on a living creature, esp. a human; abusive
treatment; outrage (Abuse, inhuman treatment, indignity)”. Cruelty can be both
physical or mental cruelty. The impact on the mental health of the wife by overt
acts on the part of the husband or his relatives; the mental stress and trauma of
being driven away from the matrimonial home and her helplessness to go back to
the same home for fear of being illtreated are aspects that cannot be ignored
while understanding the meaning of the expression “cruelty” appearing in Section
498A of the Indian Penal Code. The emotional distress or psychological effect on
the wife, if not the physical injury, is bound to continue to traumatize the wife even
after she leaves the matrimonial home and takes shelter at the parental home.
Even if the acts of physical cruelty committed in the matrimonial house may have
ceased and such acts do not occur at the parental home, there can be no doubt
that the mental trauma and the psychological distress cause by the acts of the
husband including verbal exchanges, if any, that had compelled the wife to leave
the matrimonial home and take shelter with her parents would continue to persist
at the parental home. Mental cruelty borne out of physical cruelty or abusive and
humiliating verbal exchanges would continue in the parental home even though
there may not be any overt act of physical cruelty at such place.
9
15. The Protection of Women from Domestic Violence Act, as the object
behind its enactment would indicate, is to provide a civil remedy to victims of
domestic violence as against the remedy in criminal law which is what is provided
under Section 498A of the Indian Penal Code. The definition of the Domestic
Violence in the Protection of Women from Domestic Violence Act, 2005
contemplates harm or injuries that endanger the health, safety, life, limb or wellbeing, whether mental or physical, as well as emotional abuse. The said
definition would certainly, for reasons stated above, have a close connection with
Explanation A & B to Section 498A, Indian Penal Code which defines cruelty. The
provisions contained in Section 498A of the Indian Penal Code, undoubtedly,
encompasses both mental as well as the physical well-being of the wife. Even
the silence of the wife may have an underlying element of an emotional distress
and mental agony. Her sufferings at the parental home though may be directly
attributable to commission of acts of cruelty by the husband at the matrimonial
home would, undoubtedly, be the consequences of the acts committed at the
matrimonial home. Such consequences, by itself, would amount to distinct
offences committed at the parental home where she has taken shelter. The
adverse effects on the mental health in the parental home though on account of
the acts committed in the matrimonial home would, in our considered view,
amount to commission of cruelty within the meaning of Section 498A at the
parental home. The consequences of the cruelty committed at the matrimonial
home results in repeated offences being committed at the parental home. This is
the kind of offences contemplated under Section 179 Cr.P.C which would
squarely be applicable to the present case as an answer to the question raised.
10
16. We, therefore, hold that the courts at the place where the wife takes
shelter after leaving or driven away from the matrimonial home on account of acts
of cruelty committed by the husband or his relatives, would, dependent on the
factual situation, also have jurisdiction to entertain a complaint alleging
commission of offences under Section 498A of the Indian Penal Code.
17. All the appeals are disposed of in terms of the above.
………………………..…..,CJI
 [RANJAN GOGOI]
...……………………..…….,J.
[L. NAGESWARA RAO]
………………………..…….,J.
 [SANJAY KISHAN KAUL]
NEW DELHI;
APRIL 09, 2019.

Smt. P. Leelavathi (D) by LRs .. Appellant Versus V. Shankarnarayana Rao (D) by LRs .. Respondent

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? - NO -

TRIAL COURT DISMISSED THE SUIT FOR PARTITION - HIGH COURT CONFIRMED THE SAME - APEX COURT ALSO CONFIRMED THE SAME

Suit for partition -  purchasing properties in the name of sons etc., for joint family purpose is different that of providing financial assitance to purchase property by the sons in their name for their sake themselves alone

1. 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   werepurchased in the names of defendant Nos. 1 to 3.  
2.  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.  
3.  Apart from that, it has come on record that the plaintiff and her husband were maintained by Late G. Venkata Rao.  
4. The financial assistance was also given to the plaintiff and her husband to purchase the residential house   at   Bangalore.     
5. 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.   
6. 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.    
7. 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 properties.   
8. 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.
9. The intention of Late G. Venkata Rao was to provide the financial   assistance   for   the   welfare   of   his   sons   and   not beyond that.  
10. 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. 
11. 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.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1099 OF 2008
Smt. P. Leelavathi (D) by LRs .. Appellant
Versus
V. Shankarnarayana Rao (D) by LRs .. Respondent
J U D G M E N T
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
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.
3
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 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
4
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
5
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 moneylending 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 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 son­in­law, the husband of the plaintiff.  The deceased in
fact emptied his resources at the calls of her daughter and
her husband.   The son­in­law also collected cash from the
deceased.   The plaintiff and her husband are also due in a
6
sum of Rs.3000/­ borrowed by them under a pro­note dated
11.06.1966 from the deceased and defendant No. 3.   They
are also due a sum of Rs.1500/­ under another pro­note
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.
7
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 self­acquire properties?
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?
8
6) Whether   the   defendants   prove   that   there   were
furniture mentioned as Items 10, 12, 19, 20, 21 and
22 of suit Schedule V in page­5 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 selfacquired 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
9
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 suit schedule properties were not
the self­acquired 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,
10
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   self­acquired
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. 
11
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, 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
12
3  were   not   benami   in  nature,  but  were   the   self­acquired
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
13
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.
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
14
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 PW­1 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
15
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. 
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
16
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
17
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?
18
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
19
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   well­settled   that   the   burden   of
proving that a particular sale is benami and
the   apparent   purchaser   is   not   the   real
owner, always rests on the person asserting
it to be so. This burden has to be strictly
discharged by adducing legal evidence of a
definite   character   which   would   either
directly   prove   the   fact   of   benami   or
establish   circumstances   unerringly   and
reasonably raising an inference of that fact.
The essence of a benami is the intention of
the   party   or   parties   concerned;   and   not
unoften,   such  intention  is   shrouded  in   a
thick   veil   which   cannot   be   easily   pierced
through. But such difficulties do not relieve
the person asserting the transaction to be
benami of any part of the serious onus that
rests on him; nor justify the acceptance of
mere   conjectures   or   surmises,   as   a
substitute for proof. The reason is that a
deed is a solemn document prepared and
executed   after   considerable   deliberation,
and   the   person   expressly   shown   as   the
purchaser or transferee in the deed, starts
with the initial presumption in his favour
that the apparent state of affairs is the real
state   of   affairs.   Though   the   question
whether a particular sale is benami or not,
is largely one of fact, and for determining
this question, no absolute formulae or acid
tests, uniformly applicable in all situations,
can   be   laid   down;   yet   in   weighing   the
probabilities and for gathering 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
20
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
21
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:
“(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.
(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
22
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,
23
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 daughter­original 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 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
24
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.
........................................J.
[L. NAGESWARA RAO]
........................................J.
[M. R. SHAH]
New Delhi,
April 9, 2019.