1978 Supreme(Del) 80

High Court Of Delhi
S.FAUJA SINGH - Appellant
Versus
KULDIP SINGH - Respondent
Suit 422 of 1969
Decided On : 05/23/1978

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.

Headnote:

PARTITION SUIT - BENAMI - OWNERSHIP - ACCOUNTING - EVIDENCE - CONSTRUCTION OF HOUSE - FINANCIAL POSITION - INSURANCE POLICY - NOMINEE - LEGAL HEIRS - SOURCE OF INCOME - BURDEN OF PROOF - ADMISSIONS - CONDUCT OF PARTIES - INTENTION - MOTIVE - RELATIONSHIP - POSSESSION - TITLE DEEDS - TRUSTEE - WILL.

Fact of the Case:

Plaintiff filed a suit for partition of the house and rendition of accounts. Defendants 1 to 3 filed a joint written statement alleging that the plaintiff was not in possession of any part of the property and, therefore, ad valorem court-fee was payable on his one-half share of the value of the suit property. Pleas regarding misjoinder and cause of action were also taken. It was contended that Amarjit Kaur alias Harpreet Kaur, widow of Tarlok Singh Mann was a necessary party as she owned one-half share. It was further stated that the plaintiff had no share in the plot R-6, Green Park, nor the construction had been made by him. It is also averred that Major Jaswant Singh wanted to purchase the plot in question for his son and daughter but the plaintiff insisted that half of the share in the plot should either be in the name of his son T. S. Mann or in his own name and not in the name of Amarjit Kaur as purchasing the property in the name of the female would cause great insult to him and his family. It is stated that to satisfy the whim of the plaintiff, half of the share in plot No. R-6, Green Park was shown in the plaintiff's name. He was to be a sheer benamidar for Amarjit Kaur, daughter of Major Jaswant Singh. It is further alleged that the whole material for the construction of the building was purchased by Amarjit Kaur and Kuldip Singh, defendants and that the entire investment had also been made by them, whereas nothing had been spent by the plaintiff. With these submissions it was stated that the suit be dismissed. In his replication, the plaintiff re-asserted his averments and denied that Amarjit Kaur was the real owner and that he was only a benamidar. The plaint was later amended on the application of Amarjit Kaur alias Harpreet Kaur and she was impleaded as defendant No. 4. She filed her written statement and alleged that she was the real owner of one-half share in the plot and the building standing thereon as she had spent the whole amount herself, whereas the plaintiff was only a benamidar.

Finding of the Court:

1. The plaintiff is in possession of a part of the property in dispute. 2. The suit is not bad for multifariousness. 3. The plaintiff is not a benamidar of one-half share in the property in dispute and the real owner is Smt. Amarjit Kaur, defendant No. 4. 4. Amarjit Kaur defendant is not the real owner of one-half share in the house in dispute, whereas the plaintiff is only a benamidar. 5. The plaintiff is entitled to a decree for rendition of accounts. 6. The plaintiff has one half share in the house in dispute. He is, therefore, entitled to the rendition of accounts from all the defendants from the date of its completion.

Issues: 1. Whether the plaintiff is in possession of any portion of the property in suit and the suit is properly valued for the purpose of court-fee and jurisdiction? 2. Whether the suit is bad for multifariousness? 3. Whether the plaintiff is only benamidar of the property in suit to the extent of one-half share? 4. If issue No. 3 is proved, whether Smt. Amarjeet Kaur defendant No. 4 is the real owner of the property in suit to the extent of one-half share along with the defendant No. 1 and whether she is in possession of any part of the property in suit? 5. Whether the plaintiff is entitled to a decree for rendition of accounts? If so, for what period and against whom? 6. What directions, if any, should be issued to the local Commissioner in the matter of the rendition of accounts? 7. Whether the plaintiff had authorised defendant No. 3 to re-imburse the rental income withdrawn from the bank or received otherwise to defendant No. 1 and defendant No. 4?

Ratio Decidendi: 1. The onus 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. 2. The source from which the purchase money came, is by far the most important test for determining whether the sale standing in the name of one person, is in reality for the benefit of another.

Final Decision: A preliminary decree for the partition of the house in dispute and also for rendition of accounts in favour of the plaintiff and against the defendants is granted. Costs to follow the final event.