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2007 (4) TMI 752
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....te of late Mr. Edwin St. Clair Vallenine at the price of Rs. 26,000 (Rupees twenty six thousand only) but the agreement for sale has not yet been entered into with the Administration General of Bengal as Administrator to the Estate of Edwin St. Clair Vallentine now therefore know. Yet that I hereby appoint Atul Chandra Ghosh of 79/3-A, Lower Circular Road, Calcutta, my attorney to do and execute for me and in my name and all acts, matters and things that may be necessary in order to complete the said purchase and particularly the following : .... In witness whereof I set and subscribe my hand and seal at Rangoon this 23rd day of September, 1935, in the presence of Date: 23.9.1935 No. 1986 Date of Registry: 17.10.1935 Sd. Smt. Supravabla Ghosh Sd. K. N. Ganguli Advocate High Court & Councilor Corporation of Rangoon Sd. S. N. Ganguly, Advocate, High Court Sd. Ashutosh Ghosh M.B. (Cal) Medical Practitioner..... 2. The said power-of-attorney, however, was preceded and followed by two telegrams of Dr. Ghosh addressed to his brother in relation to execution thereof as also purchase of the said property. The said power-of attorney was executed before a Magistrate at Rangoon. D....
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....e parties being Chandi Charan Ghosh examined himself as P.W.-4. Respondent No. 1 did not examine herself. Putul Ghosh, daughter of Amal who was born only in 1954 examined herself as D.W.-1. 6. The learned trial Judge decreed the suit holding that Dr. Ghosh intended to purchase the said property for the benefit of his wife. The trial court in its judgment opined that if Dr. Ghosh wanted to purchase the property for himself, there was no necessity for execution of power-of attorney by Suprovabala in favour of Atul Chandra Ghosh. It was noticed that the power-of-attorney had been attested by Dr. Ghosh which is a pointer to show that the property was purchased by him for the benefit of his wife. Circumstances surrounding the same, it was held, also led to the said conclusion. It was, therefore, not held to be a case of benami transaction. A first appeal was preferred thereagainst before the High Court by Respondent Nos. 1 and 2. A Division Bench of the High Court although completed hearing of the appeal on 25.1.2002, delivered judgment after 19 months, i.e., on 29.7.2003. 7. The High Court opined that : (i) it was for the Plaintiff to prove that Dr. Ghosh purchased the p....
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....n important factor for determining benami nature of transaction, the onus lay on the Plaintiffs. (v) the parties being governed by the Dayabhaga School of Hindu Law, Dr. Ghosh could not have made a gift of immovable property in favour of his wife. 11. Before embarking upon the rival contentions of the parties, we may also notice that Dr. Ghosh had a life insurance. Suprovabala was his nominee and after his death, the entire amount of insurance was received by her. 12. A question as to whether a transaction evidences a benami nature thereof is always difficult to answer. It is a case where despite some evidence brought on records by the Plaintiffs that Suprovabala paid the consideration amount or at least a part of it, we may proceed to determine the issues between the parties on the premise that the amount of consideration was provided by Dr. Ghosh. A person may for various reasons intend to purchase a property in the name of his wife. It may be for one reason or the other. There may or may not be a practice in respect thereto. A purported prevalent practice in this behalf, as was observed by the Judicial Committee, in Sura Lakshmiah Chetty and Ors. v. Kothandarama P....
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....ected to draft a telegram and go to post office for the purpose of transmission thereof. But, the power-of-attorney executed by her plays an important role. The power-of-attorney must have also been drafted at the behest of Dr. Ghosh. Ordinarily, Suprovabala would be described as the wife of Dr. Ghosh. She was not described as the daughter of Babu Rangalal Ghosh. Dr. Ghosh himself was an attesting witness. He being in the position of husband and if we accept the case of the Defendants-Respondents that he intended to have a benami transaction, ordinarily, he would not get his wife described as daughter of somebody instead of his own wife. Such unusual step on the part of Dr. Ghosh leads to one conclusion that he intended to purchase the property for the benefit of his wife. The recitals made in the power-of-attorney are also of much significance. It was categorically stated that it was Suprovabala who had decided to purchase the said property and it was she who was appointing her husband's brother as her attorney. 16. In Tara Sundari Sen v. Pasupati Kumar Banerjee and Ors. 1974 CLJ 370, it was observed : ... The only purpose of Nagendra Nath Ganguly having been a sig....
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....gard to the construction of the house. Evidence on records clearly show that Suprovabala had also been looking after the constructions of the house alongwith Chandi Charan Ghosh (P.W. 4). 19. The fact, which we have noticed hereinbefore, viz., that an insurance was also made in her name is also a pointer to show that Dr. Ghosh intended to provide sufficient money at the hands of his wife. [See Ext. A (13)] Ordinarily, a son would be made a nominee. We must place on record the social condition as thence prevailing, viz., a son under the law was bound to maintain his family and, therefore, the entire property at the disposal of the father would be given to the son. 20. We do not have any direct evidence of conclusive nature in this regard before us. We must, therefore, deal with the matter on reasonable probabilities and legal inferences. 21. Dr. Ghosh indisputably was a person having a superior knowledge and understanding. He was holding a responsible position in the society. He was in a noble profession. When he made attestation of the deed of the power-of-attorney keeping in view the fact that he was the husband there cannot be any doubt that he fully understood in regard....
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....he property was purchased with the money given by the husband to the wife would in that sense be foreign to Section 10 (2) (d) gift of money which would fall under Section 10 (2) (b) if converted into another kind of property would not help to take the property under the same clause, because the converted property assumes a different character and falls under Section 10 (2) (d). Take a case where the husband gifts a house to his wife, and later, the wife sells the house and purchases land with the proceeds realised from the said sale. It is, we think, difficult to accede to the argument that the land purchased with the sale-proceeds of the house should, like the house itself, be treated as a gift from the husband to the wife ; but that is exactly what the Appellants argument ; will inevitably mean. The gift that is contemplated by Section 10 (2) (b) must be a gift of the very property in specie made by the husband or other relations therein mentioned. Therefore, we are satisfied that the trial court was right in coming to the conclusion that even if the property belonged to the Appellants mother, her failure to implead her brothers who would inherit the property alongwith her makes....
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....Ali Khan and Ors. v. Nawab Fakr Jahan Begam and Anr. AIR 1932 PC 13]. 26. In Chittaluri Sitamma and Anr. v. Saphar Sitapatirao and Ors. AIR 1938 Mad 8, it was held : .... The mere suspicion that the purchases might not have wholly been made with the lady's money will certainly not suffice to establish that the purchases were benami, nor even the suspicion that moneys belonging to Jagannadha Rao whether in a smaller measure or a larger measure, must have also contributed to these purchases. Even in cases where there is positive evidence that money had been contributed by the husband and not by the wife, that circumstance is not conclusive in favour of the benami character of the transaction though it is an important character... 27. The learned Counsel for both the parties have relied on a decision of this Court in Evidence Act Thakur Bhim Singh (Dead) by L.Rs. and Anr. v. Thakur Kan Singh (1980) 3 SCC 72, 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 decided by: (a) Surrounding circumstances (b) Relations....
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.... one of the relevant considerations but not determinative in character. [See Thulasi Ammal v. Official Receiver, Coimbator AIR 1934 Mad 671]. 31. In Protimarani Debi and Anr. v. Patitpaban Mukherjee and Ors. 60 CWN 886, the Calcutta High Court observed : The correct proposition was stated in Official Assignee of Madras v. Natesha Gramani (1) AIR 1927 Mad 194. There is no presumption that when a property stands in the name of a female the Court will immediately jump to the conclusion without any proof that it really belongs to the husband of the female. Before such a presumption is raised or attracted it is necessary for the person who wants to make out that the property is not the property of the female, in whose name the document stands, to establish the fact that the consideration money for the purpose had come from the husband. 32. It will be useful at this juncture to notice a judgment of the Calcutta High Court in K. K. Das, Receiver and Ors. v. Smt. Amina Khatun Bibi and Anr. AIR 1940 Cal 356, wherein it was held that where a husband provides for the money for construction of a building on a land which is in the name of his wife, he did not intend to reserve an....
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....al Corporation, he was residing with his wife, he allegedly inducted tenants and had been realizing rent from them. 36. Tenants could have denied his title. He would not have been given permission to make any additions or alterations. He, in absence of an order of mutation, might not be given other amenities, if he had filed such an application in his own name. He, therefore, knew that mutation of names of all the parties in the Calcutta Municipal Corporation may bring forth to him many obstacles in future in the enjoyment of the property. At least he could have taken such a step even after the suit filed by two of the sisters for maintenance. The suit was decreed. Even in the said suit, the right to claim partition in the properties had been kept reserved. 37. We have seen hereinbefore that the Appellant examined herself as a witness. The wife of Amal even did not do so. An adverse inference should be drawn against her. 38. In Tulsi and Ors. v. Chandrika Prasad and Ors. (2006) 8 SCC 322: 2006 (3) SCC 1485: 2006 (4) AWC 3644 (SC), this Court observed : Before the courts below, the Appellant No. 1 did not examine herself. The Respondents categorically averred in th....
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....the owner's right excluded him from the enjoyment of his property. 42. It was further held : 21. The High Court has erred in holding that even if the Defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the Plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the Defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise... [See also Govindammal v. R. Perumal Chettiar and Ors. (2006) 11 SCC 600: 2007 (1) AWC 761 (SC) and P. T. Munichikkanna Reddy and Ors. v. Revamma and Ors. Civil Appeal No. 7062 of 2000 decided on 24th April 2007]. 43. Amal, therefore, could not have turned round and challenged the title of the Appellant and other Respondents. [See Syed Abdul Khader v. Rami Reddy and Ors. (1979) 2 SCC 601]. 44. P.W. 3 in her evidence made three significant statements : (i) The property was purchased for the benefit of the mother without keeping any financial intere....
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....-matter of gift by a person in favour of his wife. [See K. K. Das (supra)]. 48. We are also really not concerned with such a situation as the situation had undergone a sea change after coming into force of the Transfer of Property Act. The Transfer of Property Act prescribes that any clog on transfer of property right to transfer would be void. Dayabhaga does not prohibit gift of immovable property in favour of his wife by her husband. It merely says that Dayabhaga did not recognize it to be her stridhan. It was only for the purpose of inheritance and succession. The same has nothing to do with the Benami Transaction of the Property and to determine the nature of transaction. 49. Burden of proof as regards the benami nature of transaction was also on the Respondent. This aspect of the matter has been considered by this Court in Valliammal (D.) by L.Rs. v. Subramaniam and Ors. (2004) 7 SCC 233: 2004 (3) SCCD 1586: 2004 (4) AWC 2971 (SC), wherein a Division Bench of this Court held : 13. This Court in a number of judgments has held that it is well established that burden of proving that a particular sale is benami lies on the person who alleges the transaction to be a ....