1996 Supreme(SC) 876

1996(5) Supreme 4
SUPREME COURT OF INDIA
Madan Mohan Punchhi and K.T. Thomas, JJ.
Heirs of Vrajlal J. Ganatra -Appellant
versus
Heirs of Parshottam S. Shah-Respondent
Civil Appeal No. 9884 of 1995
Decided on 30-4-1996

IMPORTANT POINT
The question whether a particular sale is benami or not is largely one of fact and the question depends predominantly upon the intention of the person who paid the purchase money and for this, the burden of proof is on the person who asserts that it is a benami transaction.

Headnote:(i) Benami Transaction-Question whether a particular sale is benami or not is one of fact-It depends predominantly upon intention of person who paid purchase money-Burden of proof on person who asserts that it is a benami transaction.

       Held : The question whether a particular sale is benami or not is largely one of fact. Though there is no formula or acid test uniformly applicable it is well neigh settled that the question depends predominantly upon the intention of the person who paid the purchase money. For this, the burden of proof is on the person who asserts that it is a benami transaction. However, if it is proved that the purchase money came from a person other than the recorded owner (ostensible owner) there can be a factual presumption at least in certain cases, depending on facts, that the purchase was for the benefit of the person who supplied purchase money. This is, of course, a rebuttable presumption. (Para 5)

       (ii) Constitution of India-Article 136-Appeal by special leave-Suit for declaration of plaintiff s title to suit property and also injunction-Dismissed-Plaintiff failed to prove his title that he was real owner of property-He failed to establish his possession on the land-High Court concurred with finding of trial court regarding title-Plaintiff s case that he had borrowed money from defendant for purchasing lands and he had taken sale-deeds in name of defendant as security-Defendant is recorded owner-Sale deed contained a recital that land would remain with defendant as security for amount advanced by him and when plaintiff paid back amount outstanding, defendant would give back property-In a letter plaintiff acknowledged an amount remaining outstanding with defendant-It was stated that since property was sold to defendant plaintiff had no more concern about it-Possession would follow title-Suit rightly dismissed.

       Held: The case of the plaintiff, in short, is this: Defendant was a money-lender and plaintiff was a dealer in land transactions. Plaintiff had borrowed money from the defendant for purchasing lands and he had taken sale-deeds in the name of the defendant as security to the loan amounts advanced and that on clearance of loan amount defendant would reconvey the land concerned. In the case of Ext. 66 sale-deed also, according to the plaintiff, the same pattern was followed as defendant advanced a sum of Rs. 13,000/- (Rupees thirteen thousand only) to the plaintiff for buying the land and so it was incumbent on the defendant to reconvey the property. (Para 2)

       The High Court held that the intention when the sale-deed was taken, was nothing other than making the defendant owner of the property although it might have been thought that if plaintiff would pay the amount which defendant had shelled out the property would be reconveyed to the plaintiff. (Para 3)

       In this case, as it is admitted that defendant is the recorded owner and when purchase money had not admittedly gone from the appellant for execution of the sale-deed of 1963, it is an uphill task for the appellant to establish that the sale-deed was taken benami for him. Of course, appellant had projected certain circumstances to show that he was dealing in lands for which defendant had advanced money to him. (Para 6)

       Further held : Trial court found that plaintiff had failed to prove that the property was in his possession. High Court would have considered it superfluous to go into the question of possession. As the plaintiff claimed possession only as the true owner of the land, it is not necessary to consider the question of possession separately unless his title was upheld by the Court. The presumption is that possession would follow title. That presumption is stronger in this case as we noted that the property remained as a bare land. No particular act of possession could normally be pointed to establish possession. Non-consideration of the question of possession in such a situation is inconsequential though we are in agreement with the finding that plaintiff had failed to establish his possession on the land. (Para 9)