TaxTMI 
TaxTMI 
2015 (10) TMI 2780
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....s 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 entir....
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....iff 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 s....
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.... 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. (AIR 1974 SC 171) 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 transfere....
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....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 pro....
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....ng 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." AIR 1959 SC 504 [Kishori Lal Vs. Mst. Chaltibai] 15. Reiterating the above view in Rahasa Pandiani by L. Rs. & Ors. vs. Gokulananda Panda & Ors. (AIR 1987 SC 962), 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 extremel....
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.... 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. (AIR 1968 SC 947) 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....