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Judgment
Having been aggrieved by the Judgment and Decree dated 26-4-1995 passed by the learned Vth Additional Judge, City Civil Court, Hyderabad, in OS No.1185 of 1987 the defendants 1, 3 and 5 to 7 preferred this appeal, while arraying the other defendants 2, 4, 8 and 9 as respondents 2 to 5 and giving up defendants 10 to 12.
The first respondent herein filed a suit for declaration of his title to the plaint ''A'' schedule mentioned property, for consequential possession of ''B'' schedule property and for recovery of damages.
Briefly stated the facts are thus:
The plaint ''B'' schedule mentioned property shown in red colour in the plan attached to the plaint is part and parcel of the plaint ''A'' schedule mentioned property (for short ''the suit house''). Smt. Suguma Devi Paul, the 10th defendant in the suit is the 2nd wife of late Venkatachalam Paul. The 1st defendant in the suit and late Manohar Narayana Reddy were the sons of late Venkatachalam Paul through his first wife. Second defendant is the widow of late Manohar Narayana Reddy. Defendants 3, 5, 6 and 7 are the children of the first defendant and defendants 4, 8 and 9 are the children of late Manohar Narayana Reddy. 11th defendant is the fostered daughter of the 10th defendant. 12th defendant is the husband of the 11th defendant. Smt. Suguna Devi Paul purchased the suit house under a sale-deed dated 7-1-1965 from one Kama Rao Kavalkar, the owner thereof. She alone used to reside in the suit house, while Venkatachalam Paul and his children through his former wife used to reside separately. A mulgi which is a part of the suit house was let out to the plaintiff and he had been in possession as a lessee thereof from a long time. Another mulgi which is a part of the suit house has also been in possession of a tenant by name Venugopal. The 10th defendant fostered the 11th defendant and later gave her in marriage to the 12th defendant. She sold away the suit house for a consideration of Rs.48,000/- under a registered sale-deed dated 15-12-1986 in favour of the plaintiff and delivered possession of the suit house in pursuance thereof. The tenant Venugopal attorned the tenancy in favour of the plaintiff and executed a separate lease deed in his favour. On the eve of Christmas festival the 10th defendant requested the plaintiff to permit her relations; the 1st defendant; to use one room and one kitchen in the suit house so as to enable them to celebrate the Christmas festival while promising to vacate the same after the festival. The plaintiff obliged and permitted the 1st defendant to occupy one room and one kitchen. After the festival, the plaintiff demanded the 1st defendant to vacate the room and kitchen. Contrary to the understanding, the 1st defendant while claiming title over the property on the ground that the property was his father''s property began occupying the other rooms in the suit house with the help of some rowdy elements, and thus the first defendant occupied the ''B'' schedule portion of the suit house. Hence, the suit.
Defendants 1 to 4 filed written statement resisting the claim of the plaintiff. Defendants 5 to 9 filed a separate statement. The 10th defendant filed his statement supporting the claim of the plaintiff. The case of the contesting defendants is that late Venkatachalam Paul married the 10th defendant as a second wife as his first wife died when late Manohar Narayana Reddy-the second son was just six months old to lookafter the boy. 10th defendant was brought from an orphanage in Machilipatnam, and therefore, she had no properties of her own. Late Venkatachalam Paul, the 10th defendant and the defendants all used to reside in the suit house. Late Venkatachalam Paul used to run a mechanical workshop and he handedover the same to the 1st defendant and late Manohar Narayana Reddy due to old age. The 1 st defendant and late Manohar Narayana Reddy contributed for the purchase of the suit house and the property was purchased in the name of 10th defendant and kept in trust in her name for the benefit of the family, out of love and affection as she brought up late Manohar Narayana Reddy from his childhood. 10th defendant is a very old lady and she lost her balance of mind due to old age, and as such, she has no capacity of independent thinking of her own and therefore, she might have acted under undue influence of the llth and 12th defendants in executing the alleged sale-deed in favour of the plaintiff. After the death of late Manohar Narayana Reddy claiming the right over the suit house they got a news item published in Deccan Chronicle in the year 1979. Again Ihey got a news item published in Deccan Chronicle claiming title over the suit house in the month of February, 1987, after which the present story was concocted by the plaintiff. 10th defendant has no right, title or interest over the suit house. The suit house is worth of Rs.2,50,000/- and it cannot be sold for a paltry sum of Rs.48,000/-. The plaintiff thus has no title over the suit house.
On the above pleadings, the following issues have been framed by the trial Court at the time of settlement of issues.
(1) Whether the plaintiff is entitled for declaration of title to the plaint ''A'' schedule property ?
(2) Whether the plaintiff is entitled for possession of plaint ''B'' schedule property ?
(3) Whether the plaintiff is entitled for damages ?
(4) To what relief?
At the time of the trial, two witnesses were examined on the side of the plaintiff including himself and the documents Exs.A1 to A24 got marked. 10th defendant examined herself on commission as DW1. The first defendant examined himself as DW2 and 5th defendant examined herself . as DW3 and documents Exs.Bl to B3 were got marked.
Upon considering the evidence on record and upon hearing both the parties, the Court below decreed the suit with costs. While decreeing the suit, on issues 1 and 2 it was held that the 10th defendant was the absolute owner of the suit house having purchased the same and as owner thereof she sold away the suit house in favour of plaintiff under the original of Ex.Al sale deed. While holding so, the Court has come to a conclusion, in view of the prevailing position of law that the provisions of Benami Transactions (Prohibition) Act, have retrospective operation, and therefore, the plea of benami is not available to the defendants. On issue No.3, the Court below granted damages for seven months at the rate of Rs.500/- per month while directing the plaintiff to file necessary petition for ascertaining the damages from the date of suit.
The learned Counsel for the appellants assailed the said findings contending that in view of the then prevailing position of law in regard to benami transactions the Court below has not correctly addressed itself to the contentions issue of benami .nature of transaction. It is the further contention of the learned Counsel that the I Oth defendant had no necessary wherewithal for purchasing the suit house and tests laid down by the Apex Court to determine the benami nature of transaction have not been satisfied in this case. It is further contended by the learned Counsel that the appellants from the beginning have been in possession of the suit house and the theory propounded that the first appellant was permitted to celebrate the Christinas festival at the suit house is a concocted story. It is the other contention of the learned Counsel that the 11th and 12th defendants by wielding undue influence over the 10th defendant, who was not in a position to understand the men and matters due to her old age obtained a sale-deed in favour of the plaintiff, and therefore, the document is not valid. The learned Counsel further contends that 10th defendant herself filed a suit now for the cancellation of the sale-deed in OS No. 1866 of 1997 on the file of the II Senior Civil Judge, City Civil Court, Hyderabad, and therefore, the 1st respondent herein has no valid title over the suit house. In fact, CMP No. 17260 of 1999 has been filed seeking permission to adduce additional evidence to file the served copy of the plaint in OS No, 1866 of 1997.
The learned Counsel for the first respondent, on the other hand, has contended that the averments made in the plaint which is now sought to be adduced as an additional evidence reinforces the view that Smt. Suguna Devi Paul, the owner of the suit house, having purchased the same under a sale-deed from the original owner thereof. It is his further contention that the appellants miserably failed to establish the plea of benami nature of the transaction, as the burden is upon them to prove the same. The learned Counsel has further contended that the plea of benami has not been specifically taken in the plaint and instead the plea of trust has been taken.
In view of the respective contentions, the points that arise for my determination in this Appeal are:
(1) Whether Smt. Suguna Devi Paul who is the ostensible owner of the suit house is not the real owner thereof?
(2) Whether the plaintiff has valid title over the suit house ?
It is expedient to refer the parties as they are originally arrayed in the suit to avoid any confusion.
While it is the plea of defendants 1 to 9 that the suit house was purchased in the name of Smt. Suguna Devi Paul-10th defendant, their step mother, and kept in trust in her name for the benefit of the family and thus she was holding the property in trust and she was never the independent owner thereof; it is the case of the plaintiff that the 10th defendant was the owner thereof. There has been no whisper either in the statement filed by the defendants 1 to 4 or defendants 5 to 9 or the statement filed subsequently by defendants 3, 7, 8 and 9 that the suit house was purchased by the 1st defendant and the husband of the 2nd defendant with their joint contributions and the sale-deed was obtained benami in the name of the 10th defendant. At the trial the parties seemed to have proceeded on the footing that it has been a benami transaction. No specific issue has been framed in regard thereto at the time of the settlement of the issues or even subsequent thereto. The Court below in the impugned judgment proceeded to conclude that by operation of the Benami Transactions (Prohibition) Act 45 of 1988 (for short ''the Act'') which has retrospective effect it was not open for the defendants 1 to 9 to plead benami or contend that the suit house was purchased under Ex.A11 registered sale-deed in trust in favour of defendant No.10. Sections 81, 82 and 84 which are germane for consideration in the context of the plea taken by the defendants that defendant No. 10 was holding the suit house in trust for the benefit of the family, have been repealed by Act 45 of 1988. In coming to such a conclusion the trial Court placed reliance upon the judgment of the Apex Court in Mithilesh Kumar and Another Vs. Prem Behari Khare, . That judgment has been reversed by a three Judge Bench of the Apex Court in R. Rajagopal Reddy and Others (deceased by legal representatives) Vs. Padmini Chandrasekharan (deceased by legal representatives), , therefore the provisions of the Act have only prospective operation. There seems to have been some cleavage of opinion in view of the subsequent three Judge Bench of the Apex Court in Nand Kishore Mehra Vs. Sushil Mehra, . But the Apex Court recently in Rebti Devi (Smt) Vs. Ram Dutt and Another, , has held that the decision in R. Rajagopal Reddy''s case (supra), is not in any manner shaken by anything said in Nand Kishore Mehra''s case (supra) and that both cases deal with different aspects of the Act and each of the case continues to govern different provisions of the Act. Very recently in Pawan Kumar Gupta Vs. Rochiram Nagdeo, , the Apex Court held in Para 28 as follows:
"Section 3(1) of the Benami Act contains the interdict that no person shall enter into any benami transaction. The aforesaid prohibition has been judicially pronounced as prospective (vide R. Rajagopal Reddy and Others (deceased by legal representatives) Vs. Padmini Chandrasekharan (deceased by legal representatives), ).
It is manifest from the above legal position that the Act has no retrospective operation. The finding of the Court below in regard thereto is unsustainable. In fact, it has been the thrust of the contention of the learned Counsel for the contesting defendants that in view of the legal position in vogue at the time of the disposal of the suit the Court below has proceeded lightheartedly without properly appreciating the oral and documentary evidence adduced on the point. It is, therefore, appropriate to appreciate the evidence adduced on the point both oral and documentary in this case having due regard to the competing claims in regard to the suit house. The sale transaction under Ex.A11 sale-deed is not in dispute. Since the document is in Urdu language Ex.A12 the translated version in Vernacular language thereof has been filed. Regardless of the fact as to whether the transaction under Ex.A11 is benami or in trust for the benefit of the family members of late Venkatachalam Paul the ostensible owner viz., D10 is the real owner or not, in essence is the controversy, inasmuch as the plaintiff who claims to have purchased the suit house from D10 is seeking declaration of his title over the suit house. Obviously, he gets a valid title over the suit house when his title deed is true and valid and more than that the title of his vendor viz., D10 herein is true and valid. Ex.Al the registered sale-deed under which the plaintiff claims to have purchased the suit house from D10 has also been assailed on the premise that the same has been vitiated by the element of fraud and cocrsion said to have been wielded by D11 and D12 upon D10. In fact, far subsequent to the disposal of this suit, the suit in OS No.1866 of 1997 seems to have been filed by D10 herself which is pending adjudication before the II Additional Senior Civil Judge, City Civil Court, Hyderabad. A served copy of the plaint in that suit is now sought to be introduced by way of an additional evidence in Civil Miscellaneous Petition No.17260 of 1999 in this Appeal. Since all the three ingredients enjoined under Rule 27 of Order 41 of the CPC are satisfied the same can now be received and I see no legal impediment for such reception. A fortiori the document is very much required for an effective adjudication of the matter. For the above reasons, CMP Mo. 17260 of 1999 is allowed and the document is received as an additional evidence and is marked as Ex.B4; and the effect of this document will be discussed a little later at the appropriate stage.
The oral evidence on the point is that of PWs.1 and 2 and DW1 on the side of the plaintiff and DWs.2 and 3 on the side of the contesting defendants. DW1 is no other than the 10th defendant in the suit and the vendor of the plaintiff herein. She has been examined by a Commissioner appointed for that purpose. The documentary evidence germane for consideration in the context are Exs.A1 to A8, A13 to A17 and A20 to A24. Exs.B1 to B3 are not very much relevant as they are merely exchange of notices. Ex.B4 which has now been received as an additional evidence is also relevant to be considered.
Before adverting to the evidence on the point it is appropriate and expedient here to consider the legal position, so that the evidence on the point can better be appreciated. The Apex Court has sought to define the word ''benami'' in its judgment in Thakur Bhim Singh (Dead) by Lrs and Another Vs. Thakur Kan Singh, , thus:
"Two kinds of benami transactions are generally recognised in India. Where a person buys a property with his own money but in the name of another person without any intention to benefit such other person, transaction is called benami. In that case, the transferee holds the property for the benefit of the person who lias contributed the purchase money, and he is the real owner. The second case which is loosely termed as a benami transaction is a case where a person who is the owner of the property executes a conveyance in favour of another without the intention of transferring the title to the property thereunder. In this case, the transferor continues to be the real owner. The question whether a transaction is a benami transaction or not mainly depends upon the intention of the person who has contributed the purchase money in the former case and upon the intention of the person who has executed the conveyance in the latter case. The principle underlying the former case is also statutorily recognised in Section 82 of the Indian Trusts Act, 1882."
Now in the instant case we are concerned with the former category. As can be seen from the above excerpt Section 82 of the Indian Trust Act, 1882 also applied to the said transaction. Therefore, whether the transaction in question is benami or is one of trust can be considered at the same time as they are wellneigh the same. The Apex Court further proceeded to lay down the principles governing the determination of the question whether transaction is benami transaction or not, thus:
"(1) The burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction; (2) if it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary; (3) the true character of the transaction is governed by the intention of the person who has contributed the purchase money and (4) the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motive governing their action in bringing about the transaction and their subsequent conduct, etc."
Earlier in Jaydayal Poddar (Deceased) through L.Rs. and Another Vs. Mst. Bibi Hazra and Others, , the Apex Court proceeded to lay down the principles to be considered in determining benami nature of transaction. In fact, this judgment has been relied upon in the former judgment of the Apex Court referred to supra.
"Though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformally applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the Courts are usually guided by these circumstances: (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale."
The burden is therefore squarely upon the contesting defendants to prove the benami nature of the transaction with reference to the legal and acceptable evidence. The propounder of the theory is not relieved of the burden despite the peculiar circumstances of the case which makes it difficult to adduce the relevant evidence in proof thereof. This can be seen from the judgment referred to supra of the Apex Court.
Here in this case the specific plea of the contesting defendants is that the 1st defendant and the husband of the 2nd defendant contributed from their exertions towards the sale price to their father late Venkatachalam Paul, who obtained the sale-deed Ex.A11 in the name of his second wife D10 herein. This plea has been given ago by at the trial by the 1st defendant who has been examined as DW2. He deposed on oath in the chief-examination itself that the sale consideration was paid by his father. Notwithstanding the variance between the plea and proof in view of the positive evidence by DW1 upon oath, the plea that D1 and husband of D2 contributed towards sale consideration is no more open to the contesting defendants. The controversy is therefore narrowed down to the question as to whether late Venkatachalam Paul purchased the suit house and obtained the sale-deed benami in the name of his second wife. The learned Counsel for the plaintiff placed reliance upon the judgment of the Apex Court in Nand Kishore Mehra Vs. Sushil Mehra, , since it is a case where the husband claimed to have purchased the property in the name of his wife and on account of the identical nature of the facts. The Apex Court held in that judgment, thus:
"Since the plaintiff is the husband who had the right to enter into a benami transaction in the matter of purchase of property in the name of his wife or unmarried daughter, as we have held earlier he is entitled to enforce his rights in the properties concerned if he can succeed in showing that he had purchased them benami in the name of his wife. But in view of the statutory presumption incorporated in sub-section (2) of Section 3 of the Act, he can get relief sought in the suit only if he can prove that the properties concerned had not been purchased for the benefit of the wife, even if he succeeds in showing that the consideration for the purchases of the properties had been paid by him."
That was a case where the transaction had been effected after the advent of the Act and hence, Section 3 of the Act perforce has an application. Section 3 inter alia incorporates a presumption under subsection (2). Under this provision it shall be presumed unless the contrary is proved that the property has been purchased for the benefit of the wife or the unmarried daughter. Obviously the presumption is in contra distinction to the second indicia as laid down by the Apex Court in Bhim Singh''s case (supra), which says that once it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary. The ''Act'' has thus made a clear departure from the law in vogue. The contention of the learned Counsel, therefore, cannot be countenanced as the judgment of the Apex Court in Jayadayal Poddar''s case (supra), cannot be applied to the present facts of the case since the Act has no retrospective operation.
The thrust of the contention of the learned Counsel for the contesting defendants is that DIG was an orphan and she had been brought from the orphanage, by late Venkatachalam Paul, and therefore, she had no necessary wherewithal from which the consideration could legitimately flow. D10 who examined herself as DW1 admitted in her cross-examination that when she was a small child her father died and she did not remember her father and that her mother was taken to Visakhapatnam for treatment by a Doctor, namely, Lodamma, and that she was brought up by a lady namely Garlie who baptised her into Christianity, and that when their mother was taken to Visakhapatnam for treatment she was kept at Khammam in Church Missionary, and that after her mother''s death Miss. Garlie left for England and she was taken to Machilipatnam and kept there in the Missionary''s Hostel, and that later Miss. Garlie arranged her marriage with late Venkatachalam Paul. Relying very much upon these admissions, it is the contention of the learned Counsel that D10 had no source of income and she was only a house wife, and therefore, she could not have paid the sale consideration. Sequestered bits of admissions referred to supra cannot alone be considered, divorced from other fact spoken to by the witness. It is always appropriate to consider the totality of the circumstances in the deposition of a witness so as to examine to what extent the isolated circumstances constituting the admission be considered. An admission before being relied upon should be unequivocal and unqualified. A little down below the above admissions in the deposition of DW1 she deposed that her father was a police patel and that she was informed that they have sufficient lands. If this fact is considered, the efficacy of the other facts referred to supra will certainly be mitigated. It is not as though D10 was an orphan. She has her own relations including the maternal uncle who said to have arranged money for her marriage according to her evidence. That apart, the marriage of D10 was performed in the year 1942. The suit house was purchased under Ex.A11 in the year 1965. 23 long years have been elapsed in between. The sale consideration that was passed ultimately under Ex.A11 was only in a sum of Rs.3,250/-. As can be seen from the recitals in Ex.AI t an amount of Rs.2,000/-was paid by DIG prior to the sale-deed in cash and the balance amount of Rs. 1,250/-was paid at the time of registration of the document. The consideration, therefore, has been paid not at one time, but on two occasions. It is not very difficult under the circumstances for anybody to pool that much of amount from out of the domestic savings which definitely form part of the property of a woman, leaving all other sources of income. The contention of the learned Counsel for the contesting defendants therefore docs not merit any consideration and cannot, given the facts and circumstances of the case, be countenanced. What is obvious from the evidence is that the consideration to an extent of Rs.2,000/- in cash was paid by D10 prior to the registration. Of course, the endorsement on the second, page of the sale-deed shows that the balance consideration of the amount of Rs.1250/- was paid by late Venkatachalam Paul on her behalf to the vendor before the Sub-Registrar. It is just possible that DIG being a lady her husband paid the consideration on her behalf before the sub-Registrar and such instances are not unusual. It cannot, therefore, be concluded that late Venkatachalam Paul paid the consideration for himself. At any rate, major part of the consideration was shown to have been paid in cash by D10 herself as can be seen from the recitals in the document. Even assuming for a moment that the amount of Rs.1250/- was shown to have been paid by late Venkatachalam Paul as recited in the sale-deed Ex.A11 it is legitimate to conclude that late Venkatachahim Paul wanted to help his wife D10 by supplementing the sale consideration; that help in my considered view cannot make the sale-deed a benami transaction. I am fortified in my above view by the observations of the Apex Court in Pawan Kumar Gupta''s case (supra), in Para 30 which may be extracted hereunder thus:
"So even if appellant had availed himself of the help rendered by his father Pyretal for making up the sale consideration that would not make the sale-deed a benami transaction so as to push it into the forbidden area envisaged in Section 3(1) of the Benami Act."
It becomes, therefore, obligatory for the contesting defendants to show that the consideration proceeded from them, the proof required is the source whence the purchase money came. The circumstances that D10 had no necessary wherewithal perhaps which might give rise the inference that she could not have paid the consideration alone is not sufficient in view of the proof required, as can be seen from the judgment of the Apex Court in Jaydayal Poddar''s case (supra). The plea of the defendants that D1 and the husband of D2 contributed towards the sale consideration is now not available as discussed by me supra. There remains as per the evidence of DW2 that late Venkatachalam Paul paid the consideration. It is apt here to consider Exs.A16 and A17, the two paper citations, whereunder both parties claimed right over the suit house. Under Ex.A16, D1 got published in Deccan Chronicle Daily News Paper of 14-9-1979 Edition that he and eight others were the joint owners of the suit house. In reply thereto under Ex.A17 a publication was given in Deccan Chronicle of 23rd issue of that month, whereunder DIG asserted her rights over the suit house. Admittedly, late Venkatachalam Paul was alive by then, and he passed away in the year 1983. The proper person who could have legitimately denied the tall claim of DID, if any, over the suit house was only late Venkatachalam Paul. It may be contended here that on one side being the sons and on the other side being the wife, late Venkatachalam Paul remained as a mute spectator. But that cannot in my view the legitimate answer to the question. The silence on the part of late Venkatachalam Paul is tantamount to a tacit admission on his part when D10 claimed rights over the suit house being the ostensible owner. The conduct of late Venkatachalam Paul would lend support to the claim of D10 that she purchased the property by paying the consideration. There has been now a positive statement on the part of D10 who examined herself as DW1 by the Commissioner. The party who wants to prove that the recitals in the sale-deed in regard to payment of consideration are untrue must bear burden to prove it vide Pawan Kumar Gupta ''s case (supra). The failure on the part of the contesting defendants is not being able to show the source hence the consideration has flown in the context gains strength. Of course, as rightly contended by the learned Counsel for the appellants that the question of burden becomes otiose and pales into insignificance when both sides adduced evidence. Now as can be seen from Ex.B4, D10 filed a suit against the plaintiff disclaiming the sale under Ex.A1. That presupposes her right and claim over the suit properly. It is strange that the defendants are now relying upon that document. Apart from the question that Ex.A1 sale-deed is valid or not, whether D10 is the real owner of the suit house or not is much more important. The cumulative effect of the circumstances discernible from the evidence as discussed by me supra; notwithstanding the fact that contesting defendants have not been able to discharge the burden cast upon them; independently go against the theory that the source whence the consideration has flown is not either from late Venkatachalam Paul nor from D1 and late Manohar Narayan Reddy.
Admittedly, the suit house was mutated in the name of D10 in the Municipal records. Exs.AD to A15 prove the same fact even otherwise. It is true that DW2 claims that it has been done out of Jove and affection towards D10. It is very easy to say that everything has been done out of love and affection. But one should not be obivious of the fact that after all D10 is a stepmother of Defendants 1 to 9. Exs.A2 to A7 amply prove the lease in favour of the plaintiff and Venugopal Ex.A10 bunch of receipts was shown to have been issued by D10 in favour of the tenants. DW2 admitted in his evidence that D10 was paying the taxes payable over the suit house. This subsequent conduct would certainly go in favour of the enjoyment of the property by D10. There is no answer to this insurmountable circumstance of enjoyment of the property by D10. In this context the explanation omnibus coming forth that all this has been done out of love and affection towards D10 is simply fallacious. It may be mentioned here that the sale-deed Ex.A11 has been with D10. It is only she delivered that document to the plaintiff at the time of sale transaction under Ex.A1. The custody of the document further lends assurance to the overwhelming evidence of enjoyment of the property by D10. The only circumstance which may weigh with the case of the defendants is that they have been in possession of the suit house. Possession of the suit house by DIG is an admitted fact. What the defendants wanted to add is that they too have been in possession of the suit house along with DID. That is consistent with the fact assuming for a moment that it is true that the defendants being the sons and grand children of late Venkatachalam Paul nothing extraordinary in having resided in the suit house along with DIG. It may be mentioned here that it is the case of DIG that as and when each of the sons of late Venkatachalam Paul got married they left one after another the suit house. No documentary evidence has been let in worth the name except in proof of exchange of registered notices under Exs.B1 to B3 in support of their claim. Even the oral evidence is that of the first defendant and D5. No independent witness has been examined. This interested testimony of DWs.2 and 3 cannot out weigh the overwhelming documentary evidence adduced on the side of the plaintiff to show the custody of Ex.A11 sale-deed, and enjoyment of the property subsequent to the purchase. The plea that suit house was purchased in the name of D10 out of love and affection would give way to the probable contention that D10 being the second wife and had no children as a measure of social security the suit property was purchased and was intended for her benefit. The inconsistent pleas of the defendants and their tall claim that, the property was purchased benami in the name of D10 out of love and affection and the scanty evidence on the side of the defendants cannot persuade the Court to come to a legitimate conclusion that the property was held by D10 in trust for the benefit of the family of late Venkatachalam Paul. Section 82 of the Indian Trusts Act even cannot be invoked. Section 82 reads as follows:
"Where property is transferred to one person for a consideration paid or provided by another person, and it appears that such other did not intend to pay or provide such consideration for the benefit of the transferee, the transferee must hold the property for the benefit of the persons paying or providing the consideration."
Late Venkatachalam Paul must be shown to have not intended to purchase the suit house for the benefit of D10 while paying the necessary consideration so as to altract the provisions of Section 82 of the Indian Trusts Act. Of course, intention is to be gathered from out of the circumstances proved, but it cannot be the subject matter of a positive proof since it is nothing but a menial clement. As discussed by me supra, the necessary intention can be gathered only in one way that late Venkatachalam Paul wanted to benefit D10. The stone silence exhibited by him when D10 and D1 had gone to the extent of issuing paper publications would exclude in my view the other view that he never intended to benefit D10 qua his sons and grand children, although the property stands in the name of D10. For the foregoing reasons it is obvious that D10 who is ostensible owner of the suit house is the real owner thereof.
When D10 has valid title over the suit house and she conveyed the title under Ex.A1 in favour of the plaintiff, the plea of the defendants that the sale-deed under Ex.A1 came to be executed under threat and coersion holds no water. Particularly, when D10 examined herself as DW1 on commission and deposed on oath that the suit house was her property and she executed a sale-deed in favour of the plaintiff. Ex.B4 - the certified copy of the plaint cannot take away the efficacy of the transaction under Ex.AI given, the facts and circumstances of this case. As things stand, the title of the plaintiff under Ex.AI is unimpeachable. It is for DID who filed the suit to prove her case and if she is able to succeed in the suit then only the title of the plaintiff over the suit house will be defeated. Till such time, I am afraid there is nothing left for the defendants herein to question the title of the plaintiff.
The plaintiff who attorned the tenancy in favour of DIG after she purchased the suit house under Ex.A11 and who had been paying the rents till he purchased the suit house can legitimately be expected to go by that assumption. The exchange of notices under Exs.A16 and A17 alone is not sufficient to come to the conclusion that-he was not a bona fide purchaser without the knowledge of the defective title.
For the above reasons, there is nothing to interfere with the judgment and Decree of the Court below, and therefore, the appeal must fail.
In the result, the Appeal fails and the Appeal is dismissed. Under the circumstances of the case, there shall be no order as to costs.