Hon'ble Mr. Justice Arun Mishra
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.4534-4535_OF 2018
(Arising out of SLP(c) Nos.35337-35338 of 2017)
VINOD KUMAR DHALL ..APPELLANT
VERSUS
DHARAMPAL DHALL (DECEASED)
THROUGH HIS LRS. & ORS. ..RESPONDENT(S)
O R D E R
1. Leave granted.
2. Heard learned counsel for the parties.
3. The defendant is in appeal aggrieved by the judgment
and decree passed by the trial court, as affirmed by the
High Court in first appeal and review applied had also
been rejected by the High Court. The plaintiff-
respondent, Dharampal Dhall (since deceased), filed a
suit for restoration of possession, mesne profits and for
a permanent injunction with respect to House No.ED-48,
Tagore Garden, New Delhi.
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4. The plaintiff � Dharampal Dhall came with a case that
he acquired the leasehold rights on plot admeasuring
149.33 square yards under the perpetual lease deed
granted by the President of India in his favour and
registered on 31.01.1966. The plaintiff raised a
construction over the plot and obtained the necessary
sanction from the competent authority as per the site
plan and got installed electricity, water, and sewerage
connections in the premises. However, it was stated in
the plaint itself that entire family started living in
the said house. The marriage of plaintiff, as well as
defendants and all sisters, were solemnized from the
house in question. When the relationship of Defendant
No.2- the sister of the plaintiff, became strained with
her husband, she started living in the said house along
with her daughter. Defendant No.1 for some time in 1971
had resided out of Delhi. Father of the parties �
Kashmiri Lal Dhall died on 10.08.1980, leaving behind
several properties at Delhi. Defendant No.1 started
living separately with effect from the year 1986. He
acquired a house at Moti Nagar, New Delhi, and one more
residential accommodation, i.e. , GH-1/318, Pashchim
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Vihar, New Delhi.
5. It was further averred in the plaint that the mother
of the parties died in the premises in question in the
year 1990. The house remained in the custody/ possession
of the Defendant No.2. At the relevant point of time,
the plaintiff was posted at Bombay. The house was
furnished. Furniture of the plaintiff was still lying in
the house. Plaintiff came back to Delhi in the year
1993. However, at the same time, Defendant No.2 was
permitted to occupy the house. Later on, it was found
that Defendant No.1 had also started living in the said
house. The plaintiff asked defendants to vacate the
premises. They did not do so. Though, Defendant No.2 had
shifted residence in January 1995. Hence, the suit was
filed, after serving notice dated 30.6.1995. Defendant
No.1 was ousted from the house by the mother in the year
1986. Thus, he had no right in the house. The conduct of
Defendant No.1 was not proper with the plaintiff.
6. In the written statement filed by Defendant No.1, it
was contended that the suit was not properly valued. The
defendant had been occupying the premises since the year
1966. The suit was barred by limitation and was not
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maintainable. The allotment of the plot was obtained
initially in the name of Kumari Sneh Lata, who was the
eldest child of late Kashmiri Lal Dhall. The father of
the parties obtained it in the year 1963 from the Delhi
Development Authority (DDA). The entire amount was paid
by late Kashmiri Lal to the DDA. Subsequently,
construction was raised in 1965-66 by Kashmiri Lal out of
his own money. At that time. Plaintiff was only a student
studying at IIT, Kharagpur, West Bengal. The possession
of the defendant was in the capacity of the owner. The
plaintiff had no source of income at the relevant point
of time. No gift deed had been made by any person in
plaintiff�s favour. They are four sisters and two
brothers, left as legal representatives of late Shri
Kashmiri Lal. The suit was bad for non-joinder of
necessary parties. The plaintiff was, thus, not entitled
to any relief.
7. The trial court had decreed the suit. The judgment
and decree had been affirmed by the High Court.
Aggrieved thereby, the appellant has come up in appeals.
8. We have heard learned counsel for the parties at
length. It was submitted by Mr. Mahabir Singh, learned
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senior counsel appearing on behalf of the appellant that
the property was admittedly acquired in the name of
Kumari Sneh Lata. Later on, at the time when her
marriage was performed in the year 1966, the property was
transferred in the name of Dharampal. At the time when
the property was acquired in the name of Kumari Sneh
Lata, in the year 1963, Dharampal, the plaintiff was a
student at IIT, Kharagpur. He had no source of earning.
Thus, obviously, the money came from father and house was
constructed in the year 1965-66. Thus, the plaintiff had
no source of income which could have been invested in the
house at the relevant point of time. As per the
statement made by the plaintiff, he joined the services
in April 1966. By that time, the house was already
constructed. Thus, it was the property owned by the
family. The father had spent the money for construction
of the house and for allotment of plot and thus it was a
family property. It was used as the residence of the
entire family, marriages of the children and the factum
of enjoyment clearly indicated that it was not the
property exclusively owned by the plaintiff. It was the
family property even as per the case set up in the plaint
as well as the vital admissions made by the plaintiff in
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his deposition.
9. Mr. E.C. Agrawala, learned counsel appearing on
behalf of the respondents, has submitted that the
property, in fact, was acquired by Kumari Sneh Lata, out
of her earning, she was the teacher. It was also
submitted that a letter for change in the name was issued
at her address of school where she was serving. Thus,
Kumari Sneh Lata had acquired the plot from DDA out of
her own earning. Thus, it could be said to be the family
property got allotted by father Kashmiri Lal Dhall.
Thus, it was open to Kumari Sneh Lata to give it to the
plaintiff. Thus, it would not become the family
property. Though it was occupied by the family, from
time to time the plaintiff used to come and reside
therein. He had permitted Defendant No.2 to reside only
due to the fact that her relationship with husband was
strained and Defendant No.1 was ousted by the mother in
1986. He had obtained two other properties in different
localities at Delhi, i.e. , Moti Nagar, New Delhi and
Pashchim Vihar, New Delhi. He had reoccupied the
property in question behind the back of the plaintiff in
the year 1995-1996. Thus, the plaintiff was entitled to
restoration of possession of the property and mesne
7
profit. Both the Courts have concurrently found the fact
that the plaintiff was the owner. It was purely the
finding of fact and no case for interference in the
appeals by this Court was made out.
10. The learned counsel for the appellant had relied upon
the decision in Surendra Kumar v. Phoolchand (Dead)
Through Lrs. & Anr. (1996) 2 SCC 491 in which this Court
had laid down that there is no presumption that a family,
because it is joint, possessed the joint property and
therefore the person asserting the property to be joint
had to establish that the family was possessed of some
property with the income of which the property could have
been acquired. But where it is established or admitted
that the family which possessed joint property which from
its nature and relative value may have formed sufficient
nucleus from which the property in question may have been
acquired, the presumption arises that it was the joint
property and the burden shifts to the party alleging
self-acquisition to establish affirmatively that the
property was acquired without the aid of the joint
family. When the property was purchased by Manager of
the joint family in the name of the appellant who was
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then minor in the absence of material to establish that
consideration money was paid out of separate funds, it
was opined that the property was rightly held to be the
joint property by the courts below.
11. In Union of India v. Moksh Builders & Financiers Ltd.
& Ors. (1977) 1 SCC 60, this Court has observed that
where it is asserted that an assignment in the name of
one person is in reality for the benefit of another, the
real test is the source whence the consideration came as
also to find out who has been in the enjoyment of the
benefits of the transaction. The case of the appellant
must be dealt upon the reasonable probabilities and legal
inferences arising from proved or admitted facts. The
burden of proof is not static and may shift during the
course of the evidence. Thus, while the burden initially
rests on the party who would fail if no evidence is led
at all after the evidence is recorded, it rests upon the
party against whom judgment would be given if no further
evidence were adduced by either side on the evidence on
record. Once the evidence has been adduced the case must
always be adjudged on the evidence led by the parties.
This Court has laid down thus:
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"15. It is nobody's case that the sale of
the house to defendant 2 was fictitious and that
the title of the transferor was not intended to
pass. What we have to examine is whether the
title, on the sale of the house in December
1946, was transferred to defendant 3, who was
the real purchaser, and not to defendant 2, who
was only the ostensible transferee and was no
more than a "benamidar". It has been held in
Gangadara Ayyar and Ors. v. Subramania Sastrigal
and Ors. AIR 1949 FC 88, that
"in a case where it is asserted that an
assignment in the name of one person is in
reality for the benefit of another, the real
test is the source whence the consideration
came."
It is also necessary to examine in such
cases who actually have enjoyed the benefits of
the transfer. Both these tests were applied by
this Court in Meenakshi Mills, Madurai v. The
Commissioner of Income-Tax Madras. [1955] S.C.R.
691. It is, therefore, necessary in the present
case, to find out the source of the
consideration for the transfer, as also to find
out who has been in the enjoyment of the
benefits of the transaction. It is equally well
settled that, although the onus of establishing
that a transaction is 'benami' is on the
plaintiff.
�where it is not possible to obtain
evidence which conclusively establishes or
rebuts the allegation, the case must be dealt
with on reasonable probabilities and legal
inferences arising from proved or admitted
facts."
16. The burden of proof is, however not
static, and may shift during the course of the
evidence. Thus while the burden initially rests
on the party who would fail if no evidence is
led at all after the evidence is recorded, it
rests upon the party against whom judgment would
be given if no further evidence were adduced by
10
either side i.e. on the(evidence on record. As
has been held by this Court in Kalwa Devadattam
and Ors. v. The Union of India and Ors. [1964] 3
SCR 191 that where evidence has been led by the
contesting parties on the question in issue,
abstract considerations of onus and out of
place, and the truth of otherwise; of the case
must always be adjudged on the evidence led by
the parties. This will be so if the court finds
that there is no difficulty in arriving at a
definite conclusion. It is therefore necessary
to weigh the evidence in this case and to decide
whether, even if it was assumed that there was
no conclusive evidence to establish or rebut the
"benami" allegation, what would, on a careful
assessment of the evidence, be a reasonable
probability and a legal inference from relevant
and admissible evidence.�
12. In Sri Marcel Martins v. M. Printer & Ors. (2012) 5
SCC 342 it was held that Benami Transactions
(Prohibition) Act, 1988 (for short, �the Act�) would
apply only in case property was held benami. In case
Section 4(3) is applicable it could not be said that
property was held benami as such the provision of the Act
would not apply.
13. Section 2(a) of Act defined �benami transactions� as
under:
�2. Definitions- In this Act, unless the context
otherwise requires,--
(a) benami transaction means any transaction in
which property is transferred to one person
for a consideration paid or provided by
another person;
(b) .....�
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Section 4 of the Act is reproduced as under:
�4. Prohibition of the right to recover
property held benami-
(1) No suit, claim or action to enforce any
right in respect of any property held benami
against the person in whose name the property
is held or against any other person shall lie
by or on behalf of a person claiming to be the
real owner of such property.
(2) No defence based on any right in respect of
any property held benami, whether against the
person in whose name the property is held or
against any other person, shall be allowed in
any suit, claim or action by or on behalf of a
person claiming to be the real owner of such
property.
(3) Nothing in this section shall apply,--
(a) where the person in whose name the property
is held is a coparcener in a Hindu undivided
family and the property is held for the benefit
of the coparceners in the family ; or
(b) where the person in whose name the property
is held is a trustee or other person standing
in a fiduciary capacity, and the property is
held for the benefit of another person for whom
he is a trustee or towards whom he stands in
such capacity.
(emphasis supplied)
The bare reading of the aforesaid provision contained
in Section 4(3) of the Act makes it clear that where a
person in whose name a property is held as coparcener in
a Hindu Undivided Family and the property is held for the
benefits of the coparcener in the property, provisions of
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Section 4 containing prohibition of the right to recover
the property held benami would not be applicable. The
bar of the Act is not applicable to a transaction as
contained in section 4(3) (a) and (b). If the property is
held in fiduciary capacity or is held as a trustee for
the benefits of another person for whom he is a trustee
or towards whom he stands in such capacity. Thus, the
provision of Act could not be said to be applicable in
the instant case.
14. In Vathsala Manickavasagam & Ors. v. N. Ganesan &
Anr. (2013) 9 SCC 152, this Court considered the question
whether the property was held benami or was joint family
property. Where there was a tacit admission that the suit
property was purchased by his father in his name for
which he was not responsible, it was held to be joint
family property.
15. After hearing learned counsel for the parties,
considering the aforesaid legal position, we are of the
considered opinion that the appeals deserve to be
allowed. Firstly, the plaintiff has not come up with the
case that the property was acquired in the name of Kumari
Sneh Lata in the year 1963 and it was she who had spent
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the money for getting the land allotted from DDA and in
the construction of the house. No case has been set up in
the plaint to show that Kumari Sneh Lata had spent the
money in the construction of the house. He has
suppressed the fact of allotment in the name of Kumari
Sneh Lata. On the contrary, it had been admitted in the
plaint itself that family started residing in the
premises right from the beginning. In paragraphs 4 and
5, following is the pleading made by the plaintiff:
�4. That on completion of the house all family
member including defendant started living in the
aforesaid house, the marriage of plaintiff as
well as the defendant and all sister were
solemnized from the house in dispute.
5. That the relation between the defendant
No.2 and her husband became strain consequently
she was been given shelter in the premises in
dispute by the plaintiff.�
16. It is apparent that the entire family was residing in
the house in question right from the beginning and the
marriages of the plaintiff as well as the defendants and
all other sisters were solemnized in the house in
question. It is apparent that Defendant No.2 was also
residing in the house continuously right from the
beginning and also the mother and she had also died in
the house in question, as per the case set up by the
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plaintiff in the year 1990. Thereafter, the house
remained in occupation of the family members, is also
apparent. On the contrary, there is admission made by
the plaintiff that he never resided in the house. The
following is the relevant portion of the deposition of
the plaintiff set out hereunder:
�It is correct that I never remained in the
house in dispute since its construction. It is
incorrect to say that after completion of the
house, my parents and all the four sisters
including defendant No.2 and brother defendant
No.1 not started living with me at the house in
dispute.�
From the aforesaid statement, it is clear that the
plaintiff never resided in the house and was not in
possession and enjoyment of the house at any point in
time.
17. Apart from that, when we come to the source of money
for the purpose of purchase of plot, admittedly, the
plaintiff was a student and he was admitted in the year
1961 at IIT, Kharagpur. At the time when the land was
allotted in the name of Kumari Sneh Lata, he was still a
student and he had no source of income at the relevant
time in 1963 or in January 1966, when the allotment was
changed in his name owing to the marriage of Kumari Sneh
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Lata. Thus, obviously, it was Kashmiri Lal who had spent
the money in getting the land allotted and also had
raised the construction in the year 1965-66. Though the
plaintiff has stated that the construction was made
sometime in the year 1966, his version cannot be said to
be reliable. The plaintiff was silent in the plaint when
the construction was raised. The defendant has come up
with a specific case that the construction was raised in
the year 1965-66 and that is reliable. Apart from that
even if construction was made in 1966 the plaintiff had
admitted that he obtained employment only in April 1966
and when the house was constructed in 1966, the plaintiff
was not having enough earning so as to invest in the
house or to purchase the plot in 1963. He was not even
in a position to say his salary was Rs.400 or not. It
was obviously owing to the marriage of Kumari Sneh Lata
that the plot was transferred in the name of Dharampal,
who happens to be the elder son of Kashmiri Lal. Thus,
apparently no money was paid by Dharampal for allotment
of the land to the DDA and obviously, it was paid in 1963
by Kashmiri Lal. The money was also spent in
construction by the father Kashmiri Lal. Occupation and
enjoyment of the house were with the entire family right
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from the beginning and till today the family is residing
in the house. Apart from that, the plaintiff has
admitted that when he came to Delhi on posting at All
India Institute of Medical Sciences, he started living in
the rented accommodation, as there was a paucity of
accommodation for his stay in the house in question.
Thus, all the facts and circumstances indicate that it
was a family property and not the exclusive property of
the plaintiff � Dharampal. Thus, the Courts below have
acted not only perversely but in a most arbitrary and
illegal manner, while accepting the ipse dixit of the
plaintiff and in decreeing the suit. Such finding of
facts which are impermissible and perverse cannot be said
to be binding. The legal inferences from admitted facts
have not been correctly drawn.
18. Merely the fact that house tax receipt, electricity
and water bills and other documents are in the name of
Dharampal would carry the case no further, as it was the
father who got the name changed of Kumari Sneh Lata in
question in the name of Dharampal. The receipts were
only to be issued in the name of the recorded owner, but
Dharampal never resided in the house as he was in service
17
out of Delhi, obviously, the amount was paid by family,
not by Late Dharampal. Thus, we find that no benefit
could have been derived from the aforesaid documents.
19. In view of the aforesaid, we have no hesitation in
allowing the appeals and dismiss the suit filed by the
plaintiff-respondents. Thus, we order accordingly. No
order as to costs. Pending application, if any, shall
stand disposed of.
...................J.
[ARUN MISHRA]
...................J.
[UDAY UMESH LALIT]
NEW DELHI
26 TH
APRIL, 2018
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ITEM NO.9 COURT NO.10 SECTION XIV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s).4534-4535/2018
VINOD KUMAR DHALL Appellant(s)
VERSUS
DHARAMPAL DHALL (DECEASED) THROUGH HIS LRS. & ORS. Respondent(s)
Date : 26-04-2018 These appeals were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE ARUN MISHRA
HON'BLE MR. JUSTICE UDAY UMESH LALIT
For Appellant(s) Mr. Mahabir Singh,Sr.Adv.
Mr. K.R. Chawla,Adv.
Mr. Ajai Kumar Bhatia,AOR
Mr. Vijay S. Bishnoi,Adv.
For Respondent(s) Mr. E.C. Agrawala,Adv.
Mr. Shwetan K. Sailakwal,Adv.
Mr. Tanmaya Agarwal,Adv.
Mr. Vibhor Verdhan,AOR
UPON hearing the counsel the Court made the following
O R D E R
The appeals are allowed in terms of the signed
reportable order.
(Sarita Purohit) (Jagdish Chander)
Court Master Branch Officer
(Signed reportable order is placed on the file)
