1982 Supreme(MP) 722

IN THE HIGH COURT OF MADHYA PRADESH
K. N. Shukla, J.
Jagdishchandra - Appellant
Vs.
Shankargiri - Respondent
C. Misc. A. No. 177 of 1980 (I)
Decided On : 17-12-1982

Headnote:(1) Civil Procedure Code, 1908 – O. 21, R.97 – inquiry under – minor son of J. D. obstructing execution on the ground that property stands in his name – no independent source of income shown to purchase disputed property – property belongs to J. D. and not to his son.

       (2) Benami – nature of transaction – when may be presumed – minor of 3 or 4 years purchasing property – no source of his income shown – benami nature of transaction may be presumed.

       (3) Evidence Act. 1872 – S. 101 – burden to prove benami transaction – lies on person alleging it not as rule of law – nature of transaction may be presumed or inferred from proved or admitted facts.

        Short Note

       Respondent No. I Shankargiri has obtained an ejectment decree against respondent No.2. Ramchandra, in Civil Suit No. 7 – A of 1974, decided on 24 – 10 – 1977. When the decree was put to execution the present appellant Jagdishchandra, son of judgment debtor Ramchandra (respondent 2) tried to obstruct the execution and an application under O. 21 rule 97 CPC was filed by the decree holder. The appellant Jagdishchandra also filed an application objecting against the execution on the ground that he was in possession of the accommodation in suit in his own right and he could not be dispossessed in execution of the decree against his father, Ramchandra.

       2. It may be noted that on the date of filing of the said objection this Jagdishchandra was a minor and even on the date of this appeal he continued to be a minor, acting through one Onkarlal as his guardian.

       3. The contest between the parties was disposed of by the Executing Court vide order dated 20 – 3 – 1980, whereby the Court below held that the objector had no right of his own in the accommodation in suit and he was in possession on behalf of his father, Ramchandra, the judgment debtor. I earned Executing Court observed that obstruction in obtaining possession of the property was being made by the objector Jagdishchandra at the instance of his father, Ramchandra, judgment debtor. Accordingly, he directed that possession should be delivered to the decree holder by ejecting Ramchandra and the objector Jagdishchandra.

       4. Held : The house originally belonged to the judgment debtor Ramchandra. On 24 – 6 – 1963 be executed a sale – deed in favour or one Radheshyam for payment of some outstanding debts. Radheshyam executed the sale – deed in the name of his mother on 10 – 4 – 1964, and Radheshyam's mother executed a sale deed on 21 – 8 – 1964 in favour of Jagdishchandra through his mother as guardian. Undoubtedly, this Jagdishchandra was about 3 or 4 years old when this sale deed was executed in his favour. It was also established that the judgment debtor Ramchandra was running a hotel in this house and throughout the period when the property ostensibly changed several bands, Ramchandra continued to be in possession of the suit house. There was nothing to indicate that Jagdishchandra had any other source of income from property or otherwise, which could enable him or his mother to purchase the suit house. In circumstances it was lawful to presume that judgment debtor Ramchandra dealt with this property in various ways either for payment of debts or to avoid his creditors. There was nothing to indicate, indeed Ramchandra did not even enter in the witness box to show that he had provided funds for purchase of the house in order to make a gift of the same to his son. The general principle that person alleging that a transaction is Benami has to discharge the burden of proof, is not a rule of law, and has to be viewed on various facts and circumstances of the case. Their Lordships of the Privy Council in Supra Lakshimiah v. Kothandorama Pillai (AIR 1925 PC 181) had noted that purchase by the husband in wife's name should be presumed to be for husband's benefit. The Judicial Committee noted the practice of such Benami transaction prevalent in India. In Gopal Trimbak Bhale v. Keshosa Vishnoosa (AIR 1936 Nag. 185), the Nagpur High Court observed that where a Hindu father purchases property out of his own money in the name of his son, the presumption is that he intended to make the purchase for his own benefit and not for the benefit of his son. In Gangadhara Ayyar v. Subramania (AIR 1949 FC 88) the Federal Court considered the question of Benami and observed that the case must be dealt with as reasonable probabilities and legal inferences arising from proved or admitted facts. Significant observation in this case finds place at page 95, where it was observed that 'where defendants are guilty of suppression of evidence in the case, no conclusion in their favour should be arrived at merely on the ground of paucity of evidence which is of their own creation. In Gangadhara Ayyar's case (supra) the Federal Court ultimately held that on facts it was properly inferred by the Courts below that the property ostensibly in the name of the mother of Sunderam actually belonged to Sunderam.

       5. In this appeal also the appellant has chosen to depend squarely on the abstract principal of burden of proof, which I am clear, can not hold him III the light of various facts and circumstances mentioned above. The fact that neither the appellant nor his father Ramchandra, against whom the decree was obtained by respondent No.1, came in the witness box to throw light on the question though there were compelling circumstances to indicate that the property was purchased in the name of Jagdishchandra who was a small child aged about four years and who had apparently no income of his own to enable him to pay the consideration. AIR 1925 PC 181, AIR 1936 Nag. 185 and AIR 1949 FC 88 relied on. Appeal dismissed.