REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 8609-8610 OF 2009
Om Prakash Sharma @ O.P. Joshi ... Appellant (s)
Versus
Rajendra Prasad Shewda & Ors. ... Respondent(s)
J U D G M E N T
RANJAN GOGOI, J.
The suit property comprises of land and building covered by holding No.
L-395 on the Thana Lane within the Purulia Municipality, District Purulia,
West Bengal.
The following genealogical table may be set out for ready reference and
clarity of the facts that will be required to be noticed.
Jagannath Joshi = Moni Debi
(Died October 1953) (Died August 1963)
____________________________
¦ ¦
Brijlal Shewda = Gomati Debi Sitaram Joshi=Kishori Debi Joshi
(Daughter) (adopted son-1942) (Original
plaintiff)
(Died 1967) (Died 1946)
(Married to Sitaram in 1945)
(Since deceased)
¦ ¦
Rajendra Pd. Shewda Om Prakash Sharma @ Joshi
(allegedly adopted son) (adopted son)
(Respondent No.1) (Petitioner No.1)
According to the original plaintiff, Kishori Debi Joshi, (since deceased),
the suit property was purchased by Jagannath Joshi with his funds in the
name of his wife Moni Debi. Moni Debi, according to the plaintiff, was the
name lender though in the Municipal and Land Revenue records the name of
Moni Debi was entered as the owner of the suit property. The said entries
were a mere pretence. The plaintiff further pleaded that she is the wife of
one Sitaram Joshi who was adopted by Jagannath Joshi and Moni Debi in the
year 1942. After the marriage of Sitaram Joshi and the deceased plaintiff
Kishori Debi Joshi in the year 1945, Sitaram Joshi died a few months later.
According to the plaintiff, Jagannath Joshi the owner of the suit property
died in the year 1953 and on his death, one half of the suit property
devolved on his wife Moni Debi and the remaining half on the deceased
plaintiff as the widow of the predeceased son. The plaintiff further
pleaded that Moni Debi died in the year 1963 and on her death her half
share in the suit property devolved on her daughter Gomati Debi. On the
death of Gomati Debi in the year 1967 her half share in the property
devolved on the original/deceased plaintiff Kishori Debi Joshi.
Accordingly, the plaintiff became the absolute owner of the entire suit
property. In this regard, the plaintiff further pleaded that respondent
No.1 Rajendra Prasad Shewda who claimed to be the adopted son of Gomati
Debi had no basis to make any such claim as no such adoption took place.
4. The defendant, in the written statement filed, disputed the claim of
the plaintiff and asserted that though the suit property was purchased with
the funds of Jagannath Joshi the said purchase was made for the benefit of
Moni Debi in order to provide her with the necessary security in life as at
that point of time a Hindu widow was not entitled to full ownership of
property owned by a Hindu male following his death. The defendant also
disputed the claim of the original plaintiff that Sitaram Joshi was the
adopted son of Jagannath and Moni Debi and in this regard had asserted that
there was no valid adoption, as claimed. According to the defendant on the
death of Moni Debi in August 1963 the entire property devolved on her
daughter Gomati Debi and upon the death of Gomati Debi the property
devolved on the defendant No.1 Rajendra Prasad Shewda who was the adopted
son of Gomati Debi. In this regard the defendant had also pleaded that a
gift deed was executed by Gomati Debi during her life time in favour of her
adopted son i.e. defendant No.1.
5. The learned trial court, on the evidence adduced before it, took the
view that the property belonged to Jagannath and that the adoption of
Sitaram Joshi, predeceased husband of the original plaintiff, was legal and
valid. The learned trial court, therefore, held that on the death of
Jagannath Joshi in 1953 the suit property devolved in equal proportions on
Moni Debi and the original plaintiff who was the widow of the predeceased
son. Thereafter, according to the learned trial court, on the death of Moni
Debi her half share in the property devolved on Gomati Debi. The trial
court further held that on the death of Gomati Debi in the year 1967 her
half share in the property devolved on her adopted son defendant No.1.
Accordingly, the plaintiff as well as respondent No.1 were held to be
entitled to equal shares in the suit property.
6. The defendant No.1 appealed against the said order to the High
Court. The original plaintiff filed cross objections against the part of
the decree which according to her denied her full share in the suit
property. During the pendency of the appeal, the original plaintiff Kishori
Debi Joshi died and she was substituted by her adopted son Om Prakash
Sharma who is the appellant before us.
7. The High Court, on an exhaustive consideration of the issues arising
for consideration and the facts and materials on record, by the impugned
judgment and order dated 4.11.2008, came to the conclusion that the
purchase of the property by Jagannath was not a benami purchase and that
Moni Debi for whose benefit the property was purchased was the real owner
thereof. The High Court further held that the adoption of Sitaram Joshi was
not proved and therefore on the death of Moni Debi in 1963 the entire suit
property had devolved on her daughter Gomati Debi. The High Court did not
consider it necessary to go into the issue of validity of the adoption of
the defendant No.1 Rajendra Prasad Shewda or the legality of the gift deed
executed in his favour by Gomati Debi inasmuch as on the death of Gomati
Debi in the year 1967 the original plaintiff had no subsisting right to the
property. In this regard it must be noticed that the said finding was
recorded by the High Court on the basis that though the husband of the
original plaintiff Sitaram Joshi was not the adopted son of Jagannath
Joshi, the said Sitaram Joshi was the nephew of Jagannath (brother’s son)
and as the wife of the nephew of Jagannath the original plaintiff did not
come within the arena of consideration of being a heir legally entitled to
succeed to the property of Moni Debi. This was so found as there were
other legal heirs who had a better/preferential right. Accordingly the
appeal filed by the defendant No. 1 was allowed and the cross-objections
filed by the plaintiff were dismissed. Aggrieved the present appeals have
been filed by the plaintiff.
8. Three questions, delineated below, arise for consideration in the
present appeals -
1) Did the suit property belong to Jagannath Joshi or his wife Moni Debi?
2) Whether Sitaram Joshi was the legally adopted son of Jagannath Joshi
and Moni Debi.?
3) Whether defendant No.1 Rajendra Prasad Shewda was the legally adopted
son of Gomati Debi and whether the gift deed executed by Gomati Debi in
favour of defendant No.1 was legal and valid?
9. We have heard Shri Pranab Kumar Mullick, learned counsel for the
appellant and Shri M.N. Krishnamani, learned senior counsel for the
respondents.
10. The purchase of property by a husband in the name of his wife is a
specie of Benami purchase that had been prevalent in India since ancient
times. Such a practice appears to have been prevalent on account of the
position of Hindu women to succession until the enactment of the Hindu
Succession Act and the amendments made thereto from time to time. In a
situation where a Hindu widow had a limited right to the estate of the
deceased husband under the Hindu Women’s Right to Property Act, 1937, the
purchase of immovable property by a husband in the name of the wife in
order to provide the wife with a secured life in the event of the death of
the husband was an acknowledged and accepted feature of Indian life which
even finds recognition in the explanation clause to Section 3 of the Benami
Transactions (Prohibition) Act, 1988. This is a fundamental feature that
must be kept in mind while determining the nature of a sale/purchase
transaction of immoveable property by a husband in the name of his wife
along with other facts and circumstances which has to be taken into account
in determining what essentially is a question of fact, namely, whether the
property has been purchased Benami. The “other” relevant circumstances that
should go into the process of determination of the nature of transaction
can be found in Jaydayal Poddar (Deceased) through L. Rs. & Anr. vs. Mst.
Bibi Hazra & Ors.[1] which may be usefully extracted below :-
“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 particular sale is benami
or not, is largely one of fact, and for determining this question, no
absolute formulae or acid test, 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, it any, between the claimant and the alleged benamidar;
(5) the custody of the title-deeds after the sale and (6) the conduct of
the parties concerned in dealing with the property after the sale.
The above indicia are not exhaustive and their efficacy varies according
to the facts of each case. Nevertheless No. 1 viz. the source, whence the
purchase money came, is by far the most important test for determining
whether the sale standing in the name of one person, is in reality for the
benefit of another” (Emphasis is ours)
11. The reiteration of the aforesaid principles has been made in Binapani
Paul vs. Pratima Ghosh & Ors.[2]. The relevant part of the views expressed
(Paras 26 and 27) may be profitably recollected at this stage.
“26. The learned counsel for both the parties have relied on a decision of
this Court in Thakur Bhim Singh v. Thakur Kan Singh wherein it has been
held that the true character of a transaction is governed by the intention
of the person who contributed the purchase money and the question as to
what his intention was, has to be decided by:
(a) surrounding circumstances,
(b) relationship of the parties,
(c) motives governing their action in bringing about the transaction, and
(d) their subsequent conduct.
27. All the four factors stated may have to be considered cumulatively. The
relationship between the parties was husband and wife. Primary motive of
the transaction was security for the wife and seven minor daughters as they
were not protected by the law as then prevailing. The legal position
obtaining at the relevant time may be considered to be a relevant factor
for proving peculiar circumstances existing and the conduct of Dr. Ghosh
which is demonstrated by his having signed the registered power of
attorney.”
12. Applying the aforesaid principles to the facts of the present case we
find that the High Court was perfectly justified in coming to the
conclusion that the property though purchased from the funds of Jagannath
was really for the benefit of his widow Moni Debi and therefore Moni Debi
was the real owner of the property. In this regard the entries of the name
of Moni Debi in Municipal and Land Revenue records; the fact that the
brothers of Jagannath were no longer alive (according to the plaintiff the
property was purchased by Jagannath in the name of his wife to protect the
same from his brothers) are relevant facts that have been rightly taken
into account by the High Court. The fact that the property was managed by
Jagannath which fact accords with the practice prevailing in a Hindu family
where the husband normally looks after and manages the property of the
wife, is another relevant circumstance that was taken note of by the High
Court to come to the conclusion that all the said established facts are
wholly consistent with the ownership of the property by Moni Debi. In fact
the aforesaid view taken by the High Court finds adequate support from the
views expressed by this Court in Kanakarathanammal vs. S.Loganatha Mudaliar
& Anr.[3] the relevant part of which is extracted below :
“It is true that the actual management of the property was done by the
appellant's father; but that would inevitably be so having regard to the
fact that in ordinary Hindu families, the property belonging exclusively to
a female member would also be normally managed by the Manager of the
family; so that the fact that appellant's mother did not take actual part
in the management of the property would not materially affect the
appellant's case that the property belonged to her mother. The rent was
paid by the tenants and accepted by the appellant's father; but that,
again, would be consistent with what ordinarily happens in such matters in
an undivided Hindu family. If the property belongs to the wife and the
husband manages the property on her behalf, it would be idle to contend
that the management by the husband of the properties is inconsistent with
the title of his wife to the said properties. What we have said about the
management of the properties would be equally true about the actual
possession of the properties, because even if the wife was the owner of the
properties, possession may continue with the husband as a matter of
convenience. We are satisfied that the High Court did not correctly
appreciate the effect of the several admissions made by the appellant's
father in respect of the title of his wife to the property in question.
Therefore, we hold that the property had been purchased by the appellant's
mother in her own name though the consideration which was paid by her for
the said transaction had been received by her from her husband.”
(Underlining is ours)
13. On the basis of the above, we have no reason to disagree with the
conclusion of the High Court that the property was owned by Moni Debi
although consideration money for the same may have been made available by
her husband, Jagannath.
14. The next question to be decided is the legality/validity of the
adoption of Sitaram, the husband of the original plaintiff, as claimed by
the plaintiff in the suit. This Court, almost over 5 decades back, had
sounded a note of caution to be followed by courts while deciding a claim
of adoption in the following terms :
“As an adoption results in changing the course of succession, depriving
wives and daughters of their rights and transferring properties to
comparative strangers or more remote relations it is necessary that the
evidence to support it should be such that it is free from all suspicion of
fraud and so consistent and probable as to leave no occasion for doubting
its truth.”[4]
15. Reiterating the above view in Rahasa Pandiani by L. Rs. & Ors. vs.
Gokulananda Panda & Ors.[5], this Court went on to further dilate on the
matter in the following terms :
“When the plaintiff relies on oral evidence in support of the claim that he
was adopted by the adoptive father in accordance with the Hindu rites, and
it is not supported by any registered document to establish that such an
adoption had really and as a matter of fact taken place, the court has to
act with a great deal of caution and circumspection. Be it realized that
setting up a spurious adoption is not less frequent than concocting a
spurious will, and equally, if not more difficult to unmask. And the court
has to be extremely alert and vigilant to guard against being ensnared by
schemers who indulge in unscrupulous practices out of their lust for
property. If there are any suspicious circumstances, just as the propounder
of the will is obliged to dispel the cloud of suspicion, the burden is on
one who claims to have been adopted to dispel the same beyond reasonable
doubt. In the case of an adoption which is not supported by a registered
document or any other evidence of a clinching nature if there exist
suspicious circumstances, the same must be explained to the satisfaction of
the conscience of the court by the party contending that there was such an
adoption. Such is the position as an adoption would divert the normal and
natural course of succession. Experience of life shows that just as there
have been spurious claims about execution of a will, there have been
spurious claims about adoption having taken place. And the court has
therefore to be aware of the risk involved in upholding the claim of
adoption if there are circumstances which arouse the suspicion of the court
and the conscience of the court is not satisfied that the evidence
preferred to support such an adoption is beyond reproach.”
16. It is keeping in mind the above principles that we will have to
proceed in the present matter.
17. The plaintiff herself alongwith one Rukmini Joshi (PW 2) are the
witnesses who have testified in support of the claim of adoption of Sitaram
by Jagannath. The testimony of the aforesaid two witnesses are sought to be
corroborated by the statements of three other persons (since deceased) who
had deposed on the subject in another suit being R.S. No.206/1967 filed by
defendant No.1 against one of the tenants in occupation of a part of the
suit property. The aforesaid three witnesses i.e. Neth Ram Khedia, Sib
Prasad Rajgoria and Sadayee Devi have deposed in the aforesaid suit that
Sitaram had been adopted by Jagannath.
18. Besides the above evidence there is a letter dated 20.7.1945 written
on the letterhead of M/s. Bisandayal Ramjiwan (Exb.2) by one Jagannath
Sitaram. It is urged on behalf of the plaintiff that the said letter sent
from Purulia shows that Sitaram was the adopted son of Jagannath as the
sender of the letter has been described as Jagannath Sitaram.
19. A consideration of the evidence of PW-2 Rukmini Joshi as a whole
leaves us satisfied that in view of certain inherent inconsistencies
therein the testimony of the said witness is not worthy of acceptance.
Specifically, PW-2 though had stated that the adoption of Sitaram took
place 40 years back she could not recollect her own age; she had no
recollection of number of years prior to the adoption when she got married
and was unable to recall when her sons got married and most surprisingly
the age of her elder son at the time of his marriage; the present age of
the elder son or even the present calendar year. The evidence of the three
witnesses examined in R.S. No. 206/1967 (Ext. 17, 17A and 17C) would be
inadmissible under Section 32(5) & (6) of the Evidence Act inasmuch as on
the date when the said evidence was recorded the controversy with regard to
the adoption of Sitaram had already occurred. The aforesaid question i.e.
admissibility of the evidence in question would stand concluded by views
expressed by this Court in Kalindindi Venkata Subbaraju & Ors. Vs.
Chintalapati Subbaraju & Ors.[6] wherein in Para 12 (quoted below), it has
been clearly laid down that, “in order to be admissible the statement
relied on must be made ante litem motam by persons who are dead i.e. before
the commencement of any controversy actual or legal upon the same point.”
In the same backdrop the principle of ante litem motam as stated in
Halsbury’s Laws of England, 3rd Edn. Vol.15 p.308 has also been noticed.
“12. As regards the written statement of Surayamma the position of her
declaration therein is somewhat different. Both sub-sections 5 and 6 of
Section 32, as aforesaid, declare that in order to be admissible the
statement relied on must be made ante litem motam by persons who are dead
i.e. before the commencement of any controversy actual or legal upon the
same point. The words “before the question in issue was raised” do not
necessarily mean before it was raised in the particular litigation in which
such a statement is sought to be adduced in evidence. The principle on
which this restriction is based is succinctly stated in Halsbury's Laws of
England, 3rd Ed. Vol. 15, p. 308 in these words:
“To obviate bias the declarations are required to have been made ante litem
motam which means not merely before the commencement of legal proceedings
but before even the existence of any actual controversy concerning the
subject-matter of the declarations”.
20. The letter dated 20.7.1945 (Exb.2) does not lead to any clear/firm
conclusion with regard to the adoption of Sitaram and had been rightly
discarded by the High Court. In the above conspectus of facts the evidence
of the plaintiff regarding the adoption of her husband stands isolated and
cannot, on its own, sustain a positive conclusion that her husband Sitaram
was adopted by Jagannath. If the suit property was owned by Moni Debi and
not by Jagannath and Sitaram was not the adopted son of Moni Debi and
Jagannath it must be held that the suit property devolved on Gomati on the
death of Moni Debi. The claim of the defendant No.1 to be the adopted son
of Gomati could have been challenged only by such legal heirs on whom the
property would have devolved following the death of Gomati in the event the
adoption of the defendant No. 1 is to be held to be invalid. In this
context, the next legal heir who would have been entitled to succeed to the
property of Gomati Debi if the adoption of defendant No.1 is to be treated
as invalid would not be the original plaintiff inasmuch there was another
heir who could have claimed a better title in such a situation, namely, one
Chouthamal Sharma, the son of one of the brother’s of Sitaram. No such
challenge was made by the aforesaid legal heir who had a
better/preferential claim.
21. In view of the above position demonstrated by the evidence on record
the High Court was fully justified in not entering into the issue of
validity of the adoption of defendant No.1 or the gift deed executed in his
favour by Gomati as the said issues had become redundant/inconsequential
for the reasons noted above.
22. For all the aforesaid reasons and in the light of what has been found
and stated as above, we have to hold that these appeals are without any
merit. Accordingly, the order of the High Court is affirmed and the present
appeals are dismissed. However, there will be no order as to costs.
..……..……......................J.
(RANJAN GOGOI)
….……..…….....................J.
(N.V. RAMANA)
NEW DELHI
OCTOBER 9, 2015.
-----------------------
[1] AIR 1974 SC 171 para 6
[2] 2007 (6) SCC 100
[3] AIR 1965 SC 271
[4] AIR 1959 SC 504 [Kishori Lal Vs. Mst. Chaltibai]
[5] AIR 1987 SC 962
[6] AIR 1968 SC 947
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 8609-8610 OF 2009
Om Prakash Sharma @ O.P. Joshi ... Appellant (s)
Versus
Rajendra Prasad Shewda & Ors. ... Respondent(s)
J U D G M E N T
RANJAN GOGOI, J.
The suit property comprises of land and building covered by holding No.
L-395 on the Thana Lane within the Purulia Municipality, District Purulia,
West Bengal.
The following genealogical table may be set out for ready reference and
clarity of the facts that will be required to be noticed.
Jagannath Joshi = Moni Debi
(Died October 1953) (Died August 1963)
____________________________
¦ ¦
Brijlal Shewda = Gomati Debi Sitaram Joshi=Kishori Debi Joshi
(Daughter) (adopted son-1942) (Original
plaintiff)
(Died 1967) (Died 1946)
(Married to Sitaram in 1945)
(Since deceased)
¦ ¦
Rajendra Pd. Shewda Om Prakash Sharma @ Joshi
(allegedly adopted son) (adopted son)
(Respondent No.1) (Petitioner No.1)
According to the original plaintiff, Kishori Debi Joshi, (since deceased),
the suit property was purchased by Jagannath Joshi with his funds in the
name of his wife Moni Debi. Moni Debi, according to the plaintiff, was the
name lender though in the Municipal and Land Revenue records the name of
Moni Debi was entered as the owner of the suit property. The said entries
were a mere pretence. The plaintiff further pleaded that she is the wife of
one Sitaram Joshi who was adopted by Jagannath Joshi and Moni Debi in the
year 1942. After the marriage of Sitaram Joshi and the deceased plaintiff
Kishori Debi Joshi in the year 1945, Sitaram Joshi died a few months later.
According to the plaintiff, Jagannath Joshi the owner of the suit property
died in the year 1953 and on his death, one half of the suit property
devolved on his wife Moni Debi and the remaining half on the deceased
plaintiff as the widow of the predeceased son. The plaintiff further
pleaded that Moni Debi died in the year 1963 and on her death her half
share in the suit property devolved on her daughter Gomati Debi. On the
death of Gomati Debi in the year 1967 her half share in the property
devolved on the original/deceased plaintiff Kishori Debi Joshi.
Accordingly, the plaintiff became the absolute owner of the entire suit
property. In this regard, the plaintiff further pleaded that respondent
No.1 Rajendra Prasad Shewda who claimed to be the adopted son of Gomati
Debi had no basis to make any such claim as no such adoption took place.
4. The defendant, in the written statement filed, disputed the claim of
the plaintiff and asserted that though the suit property was purchased with
the funds of Jagannath Joshi the said purchase was made for the benefit of
Moni Debi in order to provide her with the necessary security in life as at
that point of time a Hindu widow was not entitled to full ownership of
property owned by a Hindu male following his death. The defendant also
disputed the claim of the original plaintiff that Sitaram Joshi was the
adopted son of Jagannath and Moni Debi and in this regard had asserted that
there was no valid adoption, as claimed. According to the defendant on the
death of Moni Debi in August 1963 the entire property devolved on her
daughter Gomati Debi and upon the death of Gomati Debi the property
devolved on the defendant No.1 Rajendra Prasad Shewda who was the adopted
son of Gomati Debi. In this regard the defendant had also pleaded that a
gift deed was executed by Gomati Debi during her life time in favour of her
adopted son i.e. defendant No.1.
5. The learned trial court, on the evidence adduced before it, took the
view that the property belonged to Jagannath and that the adoption of
Sitaram Joshi, predeceased husband of the original plaintiff, was legal and
valid. The learned trial court, therefore, held that on the death of
Jagannath Joshi in 1953 the suit property devolved in equal proportions on
Moni Debi and the original plaintiff who was the widow of the predeceased
son. Thereafter, according to the learned trial court, on the death of Moni
Debi her half share in the property devolved on Gomati Debi. The trial
court further held that on the death of Gomati Debi in the year 1967 her
half share in the property devolved on her adopted son defendant No.1.
Accordingly, the plaintiff as well as respondent No.1 were held to be
entitled to equal shares in the suit property.
6. The defendant No.1 appealed against the said order to the High
Court. The original plaintiff filed cross objections against the part of
the decree which according to her denied her full share in the suit
property. During the pendency of the appeal, the original plaintiff Kishori
Debi Joshi died and she was substituted by her adopted son Om Prakash
Sharma who is the appellant before us.
7. The High Court, on an exhaustive consideration of the issues arising
for consideration and the facts and materials on record, by the impugned
judgment and order dated 4.11.2008, came to the conclusion that the
purchase of the property by Jagannath was not a benami purchase and that
Moni Debi for whose benefit the property was purchased was the real owner
thereof. The High Court further held that the adoption of Sitaram Joshi was
not proved and therefore on the death of Moni Debi in 1963 the entire suit
property had devolved on her daughter Gomati Debi. The High Court did not
consider it necessary to go into the issue of validity of the adoption of
the defendant No.1 Rajendra Prasad Shewda or the legality of the gift deed
executed in his favour by Gomati Debi inasmuch as on the death of Gomati
Debi in the year 1967 the original plaintiff had no subsisting right to the
property. In this regard it must be noticed that the said finding was
recorded by the High Court on the basis that though the husband of the
original plaintiff Sitaram Joshi was not the adopted son of Jagannath
Joshi, the said Sitaram Joshi was the nephew of Jagannath (brother’s son)
and as the wife of the nephew of Jagannath the original plaintiff did not
come within the arena of consideration of being a heir legally entitled to
succeed to the property of Moni Debi. This was so found as there were
other legal heirs who had a better/preferential right. Accordingly the
appeal filed by the defendant No. 1 was allowed and the cross-objections
filed by the plaintiff were dismissed. Aggrieved the present appeals have
been filed by the plaintiff.
8. Three questions, delineated below, arise for consideration in the
present appeals -
1) Did the suit property belong to Jagannath Joshi or his wife Moni Debi?
2) Whether Sitaram Joshi was the legally adopted son of Jagannath Joshi
and Moni Debi.?
3) Whether defendant No.1 Rajendra Prasad Shewda was the legally adopted
son of Gomati Debi and whether the gift deed executed by Gomati Debi in
favour of defendant No.1 was legal and valid?
9. We have heard Shri Pranab Kumar Mullick, learned counsel for the
appellant and Shri M.N. Krishnamani, learned senior counsel for the
respondents.
10. The purchase of property by a husband in the name of his wife is a
specie of Benami purchase that had been prevalent in India since ancient
times. Such a practice appears to have been prevalent on account of the
position of Hindu women to succession until the enactment of the Hindu
Succession Act and the amendments made thereto from time to time. In a
situation where a Hindu widow had a limited right to the estate of the
deceased husband under the Hindu Women’s Right to Property Act, 1937, the
purchase of immovable property by a husband in the name of the wife in
order to provide the wife with a secured life in the event of the death of
the husband was an acknowledged and accepted feature of Indian life which
even finds recognition in the explanation clause to Section 3 of the Benami
Transactions (Prohibition) Act, 1988. This is a fundamental feature that
must be kept in mind while determining the nature of a sale/purchase
transaction of immoveable property by a husband in the name of his wife
along with other facts and circumstances which has to be taken into account
in determining what essentially is a question of fact, namely, whether the
property has been purchased Benami. The “other” relevant circumstances that
should go into the process of determination of the nature of transaction
can be found in Jaydayal Poddar (Deceased) through L. Rs. & Anr. vs. Mst.
Bibi Hazra & Ors.[1] which may be usefully extracted below :-
“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 particular sale is benami
or not, is largely one of fact, and for determining this question, no
absolute formulae or acid test, 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, it any, between the claimant and the alleged benamidar;
(5) the custody of the title-deeds after the sale and (6) the conduct of
the parties concerned in dealing with the property after the sale.
The above indicia are not exhaustive and their efficacy varies according
to the facts of each case. Nevertheless No. 1 viz. the source, whence the
purchase money came, is by far the most important test for determining
whether the sale standing in the name of one person, is in reality for the
benefit of another” (Emphasis is ours)
11. The reiteration of the aforesaid principles has been made in Binapani
Paul vs. Pratima Ghosh & Ors.[2]. The relevant part of the views expressed
(Paras 26 and 27) may be profitably recollected at this stage.
“26. The learned counsel for both the parties have relied on a decision of
this Court in Thakur Bhim Singh v. Thakur Kan Singh wherein it has been
held that the true character of a transaction is governed by the intention
of the person who contributed the purchase money and the question as to
what his intention was, has to be decided by:
(a) surrounding circumstances,
(b) relationship of the parties,
(c) motives governing their action in bringing about the transaction, and
(d) their subsequent conduct.
27. All the four factors stated may have to be considered cumulatively. The
relationship between the parties was husband and wife. Primary motive of
the transaction was security for the wife and seven minor daughters as they
were not protected by the law as then prevailing. The legal position
obtaining at the relevant time may be considered to be a relevant factor
for proving peculiar circumstances existing and the conduct of Dr. Ghosh
which is demonstrated by his having signed the registered power of
attorney.”
12. Applying the aforesaid principles to the facts of the present case we
find that the High Court was perfectly justified in coming to the
conclusion that the property though purchased from the funds of Jagannath
was really for the benefit of his widow Moni Debi and therefore Moni Debi
was the real owner of the property. In this regard the entries of the name
of Moni Debi in Municipal and Land Revenue records; the fact that the
brothers of Jagannath were no longer alive (according to the plaintiff the
property was purchased by Jagannath in the name of his wife to protect the
same from his brothers) are relevant facts that have been rightly taken
into account by the High Court. The fact that the property was managed by
Jagannath which fact accords with the practice prevailing in a Hindu family
where the husband normally looks after and manages the property of the
wife, is another relevant circumstance that was taken note of by the High
Court to come to the conclusion that all the said established facts are
wholly consistent with the ownership of the property by Moni Debi. In fact
the aforesaid view taken by the High Court finds adequate support from the
views expressed by this Court in Kanakarathanammal vs. S.Loganatha Mudaliar
& Anr.[3] the relevant part of which is extracted below :
“It is true that the actual management of the property was done by the
appellant's father; but that would inevitably be so having regard to the
fact that in ordinary Hindu families, the property belonging exclusively to
a female member would also be normally managed by the Manager of the
family; so that the fact that appellant's mother did not take actual part
in the management of the property would not materially affect the
appellant's case that the property belonged to her mother. The rent was
paid by the tenants and accepted by the appellant's father; but that,
again, would be consistent with what ordinarily happens in such matters in
an undivided Hindu family. If the property belongs to the wife and the
husband manages the property on her behalf, it would be idle to contend
that the management by the husband of the properties is inconsistent with
the title of his wife to the said properties. What we have said about the
management of the properties would be equally true about the actual
possession of the properties, because even if the wife was the owner of the
properties, possession may continue with the husband as a matter of
convenience. We are satisfied that the High Court did not correctly
appreciate the effect of the several admissions made by the appellant's
father in respect of the title of his wife to the property in question.
Therefore, we hold that the property had been purchased by the appellant's
mother in her own name though the consideration which was paid by her for
the said transaction had been received by her from her husband.”
(Underlining is ours)
13. On the basis of the above, we have no reason to disagree with the
conclusion of the High Court that the property was owned by Moni Debi
although consideration money for the same may have been made available by
her husband, Jagannath.
14. The next question to be decided is the legality/validity of the
adoption of Sitaram, the husband of the original plaintiff, as claimed by
the plaintiff in the suit. This Court, almost over 5 decades back, had
sounded a note of caution to be followed by courts while deciding a claim
of adoption in the following terms :
“As an adoption results in changing the course of succession, depriving
wives and daughters of their rights and transferring properties to
comparative strangers or more remote relations it is necessary that the
evidence to support it should be such that it is free from all suspicion of
fraud and so consistent and probable as to leave no occasion for doubting
its truth.”[4]
15. Reiterating the above view in Rahasa Pandiani by L. Rs. & Ors. vs.
Gokulananda Panda & Ors.[5], this Court went on to further dilate on the
matter in the following terms :
“When the plaintiff relies on oral evidence in support of the claim that he
was adopted by the adoptive father in accordance with the Hindu rites, and
it is not supported by any registered document to establish that such an
adoption had really and as a matter of fact taken place, the court has to
act with a great deal of caution and circumspection. Be it realized that
setting up a spurious adoption is not less frequent than concocting a
spurious will, and equally, if not more difficult to unmask. And the court
has to be extremely alert and vigilant to guard against being ensnared by
schemers who indulge in unscrupulous practices out of their lust for
property. If there are any suspicious circumstances, just as the propounder
of the will is obliged to dispel the cloud of suspicion, the burden is on
one who claims to have been adopted to dispel the same beyond reasonable
doubt. In the case of an adoption which is not supported by a registered
document or any other evidence of a clinching nature if there exist
suspicious circumstances, the same must be explained to the satisfaction of
the conscience of the court by the party contending that there was such an
adoption. Such is the position as an adoption would divert the normal and
natural course of succession. Experience of life shows that just as there
have been spurious claims about execution of a will, there have been
spurious claims about adoption having taken place. And the court has
therefore to be aware of the risk involved in upholding the claim of
adoption if there are circumstances which arouse the suspicion of the court
and the conscience of the court is not satisfied that the evidence
preferred to support such an adoption is beyond reproach.”
16. It is keeping in mind the above principles that we will have to
proceed in the present matter.
17. The plaintiff herself alongwith one Rukmini Joshi (PW 2) are the
witnesses who have testified in support of the claim of adoption of Sitaram
by Jagannath. The testimony of the aforesaid two witnesses are sought to be
corroborated by the statements of three other persons (since deceased) who
had deposed on the subject in another suit being R.S. No.206/1967 filed by
defendant No.1 against one of the tenants in occupation of a part of the
suit property. The aforesaid three witnesses i.e. Neth Ram Khedia, Sib
Prasad Rajgoria and Sadayee Devi have deposed in the aforesaid suit that
Sitaram had been adopted by Jagannath.
18. Besides the above evidence there is a letter dated 20.7.1945 written
on the letterhead of M/s. Bisandayal Ramjiwan (Exb.2) by one Jagannath
Sitaram. It is urged on behalf of the plaintiff that the said letter sent
from Purulia shows that Sitaram was the adopted son of Jagannath as the
sender of the letter has been described as Jagannath Sitaram.
19. A consideration of the evidence of PW-2 Rukmini Joshi as a whole
leaves us satisfied that in view of certain inherent inconsistencies
therein the testimony of the said witness is not worthy of acceptance.
Specifically, PW-2 though had stated that the adoption of Sitaram took
place 40 years back she could not recollect her own age; she had no
recollection of number of years prior to the adoption when she got married
and was unable to recall when her sons got married and most surprisingly
the age of her elder son at the time of his marriage; the present age of
the elder son or even the present calendar year. The evidence of the three
witnesses examined in R.S. No. 206/1967 (Ext. 17, 17A and 17C) would be
inadmissible under Section 32(5) & (6) of the Evidence Act inasmuch as on
the date when the said evidence was recorded the controversy with regard to
the adoption of Sitaram had already occurred. The aforesaid question i.e.
admissibility of the evidence in question would stand concluded by views
expressed by this Court in Kalindindi Venkata Subbaraju & Ors. Vs.
Chintalapati Subbaraju & Ors.[6] wherein in Para 12 (quoted below), it has
been clearly laid down that, “in order to be admissible the statement
relied on must be made ante litem motam by persons who are dead i.e. before
the commencement of any controversy actual or legal upon the same point.”
In the same backdrop the principle of ante litem motam as stated in
Halsbury’s Laws of England, 3rd Edn. Vol.15 p.308 has also been noticed.
“12. As regards the written statement of Surayamma the position of her
declaration therein is somewhat different. Both sub-sections 5 and 6 of
Section 32, as aforesaid, declare that in order to be admissible the
statement relied on must be made ante litem motam by persons who are dead
i.e. before the commencement of any controversy actual or legal upon the
same point. The words “before the question in issue was raised” do not
necessarily mean before it was raised in the particular litigation in which
such a statement is sought to be adduced in evidence. The principle on
which this restriction is based is succinctly stated in Halsbury's Laws of
England, 3rd Ed. Vol. 15, p. 308 in these words:
“To obviate bias the declarations are required to have been made ante litem
motam which means not merely before the commencement of legal proceedings
but before even the existence of any actual controversy concerning the
subject-matter of the declarations”.
20. The letter dated 20.7.1945 (Exb.2) does not lead to any clear/firm
conclusion with regard to the adoption of Sitaram and had been rightly
discarded by the High Court. In the above conspectus of facts the evidence
of the plaintiff regarding the adoption of her husband stands isolated and
cannot, on its own, sustain a positive conclusion that her husband Sitaram
was adopted by Jagannath. If the suit property was owned by Moni Debi and
not by Jagannath and Sitaram was not the adopted son of Moni Debi and
Jagannath it must be held that the suit property devolved on Gomati on the
death of Moni Debi. The claim of the defendant No.1 to be the adopted son
of Gomati could have been challenged only by such legal heirs on whom the
property would have devolved following the death of Gomati in the event the
adoption of the defendant No. 1 is to be held to be invalid. In this
context, the next legal heir who would have been entitled to succeed to the
property of Gomati Debi if the adoption of defendant No.1 is to be treated
as invalid would not be the original plaintiff inasmuch there was another
heir who could have claimed a better title in such a situation, namely, one
Chouthamal Sharma, the son of one of the brother’s of Sitaram. No such
challenge was made by the aforesaid legal heir who had a
better/preferential claim.
21. In view of the above position demonstrated by the evidence on record
the High Court was fully justified in not entering into the issue of
validity of the adoption of defendant No.1 or the gift deed executed in his
favour by Gomati as the said issues had become redundant/inconsequential
for the reasons noted above.
22. For all the aforesaid reasons and in the light of what has been found
and stated as above, we have to hold that these appeals are without any
merit. Accordingly, the order of the High Court is affirmed and the present
appeals are dismissed. However, there will be no order as to costs.
..……..……......................J.
(RANJAN GOGOI)
….……..…….....................J.
(N.V. RAMANA)
NEW DELHI
OCTOBER 9, 2015.
-----------------------
[1] AIR 1974 SC 171 para 6
[2] 2007 (6) SCC 100
[3] AIR 1965 SC 271
[4] AIR 1959 SC 504 [Kishori Lal Vs. Mst. Chaltibai]
[5] AIR 1987 SC 962
[6] AIR 1968 SC 947
