TaxTMI 
TaxTMI 
TaxTMI 
1975 (3) TMI 151
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....7; 62,500 and the plaintiff also paid an advance of ₹ 1,801 to Mustaffa. From the time of the said agreement, the plaintiff was requesting Mustaffa to give the property on sale for a total consideration of ₹ 50,000 which request Mustaffa also promised to consider, and it was under the said circumstances the consideration was recited as ₹ 62,500 in the agreement. The defendant was an intimate friend of the plaintiff and he was also a lessee of Mustaffa. While, so, upto 25th September, 1958 the plaintiff had paid to Mustaffa total sum of ₹ 27,876. Sometimes, the plaintiff had sent amounts to Mustaffa through the defendant. By that time, Mustaffa also was pleased to reduce the sale amount to ₹ 50,000. Because of the confidence in Mustaffa, the plaintiff also did not get any receipts, excepting a few receipts obtained in the name of the defendant and whose receipts are with the defendant. The plaintiff is a Government servant and he retired on 7th December, 1967. So, he requested Mustaffa to execute a sale deed ostensibly in the name of the defendant. So, on 29th September, 1958 Mustaffa executed a sale deed in the name of the defendant. On the date of sal....
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....e a formal deed acknowledging the benami nature of the document of sale of the year 1958, but the defendant refused. On 16th January, 1968 the plaintiff issued notice to the defendant demanding him to execute a formal deed, for which the defendant replied on 31st January, 1968 raising false and untenable contentions. Hence the suit. The plaintiff also alleged that the plaint schedule property would yield a profit of ₹ 2,000 per annum at the time of the presentation of the plaint. 3. The defendant filed a written statement contending as follows: The defendant purchased the entire property from Mustaffa on 29th September, 1958 with his own money and has become the owner thereof. The plaintiff acted only as a broker and on the same date 29th September, 1958 the defendant executed a sale deed in respect of 25 acres for ₹ 2,000 in lieu of the work done by the plaintiff as a broker. The defendant is not aware of any transaction between the plaintiff and Mustaffa. He never took any money to Mustaffa for the plaintiff. The plaintiff did not make any payment to Mustaffa and he had nothing to do with the sale in favour of the defendant. On 29th September, 1958, the defendant sol....
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....ed that though in cases of alleged benami transactions, there may be a ground for suspicion yet a Court's decision must rest not on suspicion or conjecture, but upon legal grounds established by legal testimony. In cases of this character, the determination of the question depends not only on direct oral evidence but also upon circumstances and surroundings of the case concerned. It has been held repeatedly that the burden of proof lies heavily on the person who claims against the tenor of the deed, that is, the alleged beneficiary, to show that the ostensible vendee was a mere name-lender and the property was in fact purchased only for his benefit. Such burden would be discharged by such a plaintiff by satisfying the well-known criteria viz.: (1) the source of purchase money relating to the transaction; (2) possession of the property; (3) the position of the parties and their relationship to one another; (4) the circumstances, pecuniary or otherwise, of the alleged transferee; (5) the motive for the transaction; (6) the custody and production of the title deeds; and (7) the previous and subsequent conduct of the parties. Each of the above-said circumstances, taken by itself, i....
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....he transaction, since the very object of a benami transaction is secrecy. Section 101 of the Evidence Act, provides that any one who desires a Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. The evidence adduced in cases of this character should stand the test of strict scrutiny and satisfy the tests mentioned above. In other words, the evidence must be reliable and acceptable impelling the Court to take a view contrary to the recitals in the impugned document. The consideration of such evidence should be in a proper manner and in the right perspective. Now, having the principles in mind we shall discuss the evidence, oral and documentary, under the various heads: 9. (1) Source of purchase-money : Exhibit B-1 is the sale deed dated 29th September, 1958 executed by Mohamed Mustaffa, the vendor, examined herein as P.W. 1 in favour of the defendant, who, according to the plaintiff, is only an ostensible vendee. This Exhibit B-1 recites that the total consideration ₹ 20,000 has been paid by the defendant himself, Exhibit-A-21, the entry at page 81 of the ledger for the year 1133 M.....
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....ld state that the moneys received from the defendant were credited in his account and to a suggestion put by the learned Counsel, he would state that " It is not correct to say that ₹ 2,000' credited to the defendant's account on the date of sale was received from the plaintiff, but it was received only from the defendant". In the course of the cross-examination by the defendant's counsel, his evidence is that he knew the plaintiff for the last 25 years and that there were no money transactions between him and the plaintiff and those transactions were entered in his account. On 22nd June, 1134 H.E., the plaintiff had borrowed ₹ 2,000 from him and he has returned the same. According to him, he has written letters to the defendant, demanding the sale consideration subsequent to the execution of the sale deed in his favour. He had also issued receipts for the amounts-received. Exhibit B-4 dated 7th December, 1958 for ₹ 3,000, Exhibit B-5 dated 22nd January, 1959 for 2,000 and Exhibit B-6 dated 9th March, 1959 for ₹ 7,000 are all receipts for the said amounts. received by him from the defendant to wards the sale consideration. Exhibit B-7 i....
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....and K. Ponmuthu. But, none of these persons has been examined in this case. No receipt has been produced by him for the alleged payments to Mustaffa. So the evidence given by P.W. 3 is not at all acceptable to hold that he gave the money to P.W. 1. D.W. 9 is the defendant. He states that the plaintiff was only a broker and he gave 25 acres of land under Exhibit B-13 to the plaintiff, which the plaintiff sold for an exorbitant price of Rs. One lakh in the year 1968 under Exhibit B-15. According to him, he has got properties both in Kaliel and Arumanai, beside cash. On the other hand, P.W. 3 himself admits in his evidence that he was receiving a salary of ₹ 24 per month in 1118 M.E., and that it was subsequently revised to ₹ 125 per month. The entries in the ledger and the day book are marked as Exhibits A-2 to A-44. Exhibit A-2 is in the plaintiff's name and Exhibit A-2.1 is in the name of the defendant. The entries Exhibits A-5, A-6, A-9 to A-12, A-14 to A-18, A-20, A-23 to A-27, A-29, A-32 A-33, A-43 and A-44 are in the name of the plaintiff. The entries Exhibits A-17 and A-32 standing in the name of the plaintiff would show that the amounts noted therein were rece....
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.... respect of the lands purchased by him under Exhibit B-13 dated 29th September, 1958 i.e., on the date of Exhibit B-1 itself has been transferred in his name and that he paid the kist for the same till he sold the properties to another. If really P.W. 3, the plaintiff had paid the entire sale consideration under Exhibit B-1 and paid the kist, nothing would have prevented him from getting the sale executed in his favour especially when he had purchased 25 acres of land on the same date from the defendant, the alleged benamidar. Exhibits B-27 to B-39 are the revenue tax receipts standing in the name of the defendant. The explanation given by P.W. 3 that he paid the kist, but handed over the kist receipts to the defendant, is ridiculous. Exhibit B-26 dated 18th March, 1959 is the licence issued by the Rubber Board to the defendant. After the purchase of the properties, the defendant had also sold various portions of the properties to D.Ws. 1, 3, 4, 5, 6, 7 and 8 and one Rev. Father Efram O.C.G. under Exhibits B-14, B-19, B-21 to B-25 and B-15 respectively. The plaintiff has not made any objection in respect of the sales made by the defendant to those persons. The suit notice in this c....
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....nment servant and retired from service only on 5th December, 1967. From the above answer, he wants the Court to believe that he being a Government servant was prevented from purchasing properties, without obtaining the permission of the Government. However, it is admitted by him that on the very same date of the execution of Exhibit B-1 he has purchased 25 acres of land in the same Survey number from the defendant under Exhibit B-13. He has also purchased properties in the name of his wife and children. Then, he sold the properties for an exorbitant price. In the cross-examination he admits that he did not get any permission from the Government for the purchase of 27-90 acres of ]and while he was in service. Exhibit A-1 dated 16th September, 1957 has been executed while he was in service. He, being a village officer, would have been definitely thorough with the procedure adopted by Government servants while purchasing properties, the mode of transfer of pattas, payment of kist etc. If really the plaintiff had paid the amount for the purchase of the properties, he would have definitely got some receipts or some agreement from the defendant, to secure his rights. Thus, the evidence o....