Jiwan Ram and Another vs Bawa Hari Dass

Dua and R.S. Narula, JJ.—This is the d"fondants'' appeal from the judgment and decree of a learned Subordinate Judge 1st Class, Kandaghat, Simla, passing a decree in favour of Bawa Hari Dass Beragi plaintiff for a declaration that he is the owner and in possession of some part of the land in dispute and a decree for possession as owner for the remaining part of the land in dispute.

The plaintiff''s case as pleaded in the plaint is that land measuring 284 bhighas 11 biswas in village Sobru, Tehsil Kandaghat belonged to Tilak Ram and was so shown in the Jamabandi for the Sam-bat 2006-07. Shri Moshu son of Shri Tilak Ram, at the instance of the plaintiff, instituted a pre-emption suit in respect of this land which was financed by the plaintiff. This happened sometime in 1952-53. Apparently this land had been sold by Tilak Ram, though it is rot expressly mentioned in the plaint. Moshu Rams''s suit was apparently decreed and after the preemption decree the plaintiff purchased the said land from Moshu Ram, Tilak Ram his father also joining the sale transaction. Apparently Tilak Ram was made to join in the sale because his name still appeared in the Jamabandi as owner, though there was no title left in him after the decree was passed in favour of Moshu Ram. This sale, it appears, was secured in the name of the defendants Jiwan Ram son of Dbaulu Ram and Surtia a son of Shri Heeru, who were the plaintiff''s senators and in whom the plaintiff had full faith and confidence as per registered sale-deed dated 2nd February, 1953. The plaintiff being a yogi did not want to purchase the land formally in his own name. The plaintiff, it is averred in the plaint, carried on the negotiations with Moshu Ram and in fact paid a sum of Rs. 2,000/- to him through one Mast Ram. The defendants were men of no substance and indeed had no means to purchase the land in dispute. It seems that on a part of this land, the plaintiff had already built a Kutiya costing about 1 1/2 lacs of rupees which consisted of contributions to the plaintiff by his disciples during the last about 50 years. The plaintiff in addition constructed houses for the residence of Gorkhia his tenant and also for Jiwan Ram defendant who was the plaintiff''s disciple. The land underneath the Kutiya and the houses, it is expressly averred, were already in possession with the plaintiff before the aforesaid sale. The possession of the remaining land purchased from Shri Moshu Ram was, however, delivered to the plaintiff under the sale deed dated 2nd February, 1953. Since then, according to the plaintiff''s plea, he continued in possession thereof and also of the buildings thereon. Certain portion of the land was, however, in the plaintiff''s possession through the defendants who as disciples of the plaintiff, were allowed to remain in actual physical possession thereof. They were, as disciples, to supply wood and grass etc., to the plaintiff''s Kutiya, to render other services to the Kutiya and also to keep the premises clean. The remaining land continued in possession of the plaintiff either actually or constructively through his tenant Gorkhia. It is also averred in the plaint that there was some dispute with the Forest Department in the matter of marking of the trees standing on the land in dispute and it was the plaintiff who was approached as owner of the trees by the Forest Department, At the plaintiffs instance, the marking was changed and ultimately when the trees were sold, out of Rs. 9,558/-, a sum of Rs. 7,000/- was paid to the plaintiff through the defendants. This, according to the plaintiff, happened about three years prior to the institution of the suit. Later, when the balance of Rs. 2,558/- was received by the defendants, they became dishonest and did not hand over this money to the plaintiff. It was from this point of time that the defendants also stopped rendering service to the Kutiya and indeed became disloyal to the plaintiff. Later, the defendants also sold some trees without reference to the plaintiff. Thereupon, the plaintiff served a notice to the defendants on 18th January, 1961. On receipt of a reply to this notice from Jiwan Ram, who purported to act on behalf of himself and on behalf of his nephew Surtia Ram defendant, the matter was taken to the Panchayat Baoli for decision, of which Panchayat the defendant Jiwan Ram himself happens to be the Sarpanch Feeling that the Panchayat would decide against Jiwan Ram, because the truth was known to everybody, he refrained from attending the meeting convened by the Panchayat. The Panchayat, however, gave its verdict against the defendants. Jiwan Ram then committed some irregularities and illegalities in the conduct of those proceedings, with the result that the matter was reported to the Director, Panchayats. The matter was thereafter referred to arbitration of seven persons including the Sub-Divisional Officer, Kandaghat by means of an agreement dated 10th September 1961. This agreement was signed by Jiwan Ram for himself and on behalf of his nephew Surtia Ram defendant. Later, taking advantage of.the absence of Surtia Ram''s signatures, the defendants applied to the Court u/s 33 of the Indian Arbitration Act for cancellation of the said agreement. This agreement was for this technical defect set aside by the Court on 30th January, 1962. It is broadly on these allegations that the present suit was instituted on 10th April, 1962.

In the written statement by the defendants, a preliminary objection has been taken that the suit is barred by virtue of the proviso to section 42 of the Specific Relief Act and it has been urged that the plaintiff being out of possession of a large portion of land, his suit for a mere declaration is incompetent. It has been denied that the defendants were disciples or Sewadars of the plaintiff or that the plaintiff had implicit faith in them. It is further denied that the plaintiff ever purchased the land in the name of the defendants as his benamidars. According to the defence, there is no prohibition under the law for a yogi to purchase the property. The defendants have also controverted the allegation that they had no means to purchase the land in question. The construction of a Kutiya by the plaintiff over a a portion of the land more than 30 years ago has been admitted as also the fact that this was gifted to the plaintiff by way of charity by the then owner of the land. The defendants claim to have themselves constructed the residential houses of Gorkhia and Jiwan Ram and indeed, according to the defendants, Gorkhia is their tenant. It has also been denied that the possession of land other than the site on which the Kutiya is constructed was delivered by Moshu Ram vendor to the plaintiff. Similarly the plaintiff''s continued possession of the land since the date of the sale has been controverted. Except for the land described hi Khewat and Khatuni No. 1/4 comprised in Khasra No. 59 min, the possession of the remaining land including the houses thereon has been claimed by the defendants, though it has been pleaded that Gorkhia tenant has with some ulterior motive and in collusion with the plaintiff now declined to give batai to them and the defendants have as a, result been forced to institute a suit for the recovery of rent against him. The trees, according to the defendants'' plea, were marked by the Forest Department at their instance and a sum of Rs. 7,558/- by way of sale price was realised by them. Out of this amount, a sum of Rs. 7,900/-was kept by the defendants as amanat with the plaintiff who has now put forth a false plea in order to claim this amount as his. It has in the alternative been also averred that if the Forest Department has ever.recognised the plaintiff as owner, then the defendants are not bound by such recognition. In reply to the averments in respect of reference to the Panchayat, it has been pleaded that the panchayat did not acknowledge the plaintiff as owner, it being added that the Panchayat had no jurisdiction to do so.

The replication filed by the plaintiff reiterated the plaintiff''s case in the plaint. The pleadings of the parties gave rise to the following main issues:

Whether the defendants are benami purchasers of the property in dispute for the plaintiff who is the real owner thereof as alleged?

Is the suit properly valued for purposes of Court-fee and jurisdiction ?

Is the plaintiff in possession of the property in suit and section 42 of the Specific Relief Act does not operate as a bar to the maintainability of the suit in the present form ?

Are the defendants entitled to compensatory costs u/s 35-A, CPC ?

The learned Subordinate Judge after a very exhaustive and detailed discussion of the entire evidence on the record has come to the conclusion that Jiwan Ram or Jiwanu Ram (both names being used for defendant No. 1) was disciple of the plaintiff and believing the plaintiff''s evidence and holding Gorkhia to be a tenant under the plaintiff, the. suit for declaration has been held to be competent under issue No. 2. The suit for declaration in respect of the property not in actual possession of the defendants, who are held to be benamidars, has accordingly also been held to be competent. In the result, the plaintiff''s suit has been decreed with costs.

On appeal, the learned counsel for the appellant has confined his arguments mainly to issue No. 1 and has very strongly argued that on the evidence on the record, the sale has not been shown to have bean made benami in the name of the defendant-appellants and that they are in fact the real owners of the property in dispute. He has laid great stress on the contention that the Court below has approached the consideration of the case from an erroneous paint of view and has not given due weight to all the attending circumstances and the various aspects which have to be taken into account in determining the benami character of a sale. According to him, the source of money is only one of the tests and this factor cannot be given undue importance, and certainly not, the dominant position over other factors. According to the learned counsel, the following factors have to be taken into account while determining the benami character of a sale:

Source of purchase money.

Possession of property.

Possession of title-deeds

Payment of land revenue.

Motive in purchasing the property benami,

Relationship of the parties inter se.

Benefit accruing to the parties from such a transaction.

Conduct of the parties, and

Other attending circumstances.

In support of his submission, he has relied on a Bench decision of this Court (to which I was a party; in P. Krishna Bhatta and Others Vs. Mundila Ganapathi Bhatta (died) and Others, Reference has in addition been made to a Supreme Court decision in Smt. Surasaibalini Debi Vs. Phanindra Mohan Majumdar, , for the submission that source from which purchase money comes is only material and not conclusive. In the Supreme Court decision, I may point out, Ayyanagar J, has in his separate judgment quoted the following passage from Mayne''s Hindu Law (Eleventh Edition) page 966:

While the source from which the money came is undoubtedly a valuable test, it cannot reconsidered to be the sole or conclusive criterion. For, the question whether a particular transaction is benami or not, is one of intention and there may be other circumstances to negative the prima facie inference from the fact that the purchase money was supplied by or belonged to another. The position of the parties, their relation to one another, the motives which could govern their actions and their subsequent conduct may well rebut the presumption.

It is interesting to point out that the learned Judge farther proceeded to make the following observations on the facts and circumstances of that case:

Even where the benami is established effect will not be given to the real title if the result of doing so would be to violate the provisions of a statute or to work a fraud upon innocent persons Guru Narayan v. Sheo Lal Singh 46 I.A. 1 : AIR 1918 P.C. 140. On this reasoning it would prima facie appear to follow that the respondent having adopted this device of purchasing the property benami in the name of his father-in-law for the purpose of evading the provisions of the Indian income tax Act would not be entitled to recover the property on the basis of his title." The observations relied upon quite clearly show that the source from which money comes is a valuable test, though not the sole or conclusive criterion. The legal position, as I understand it, is fairly well-settled. Thus observed M.C. Mahajan J. (as he then was), who prepared the main judgment of the AIR 1949 88 (Federal Court) .

It is settled law that the onus of establishing that a transaction is benami is on the plaintiff and it must be strictly made out. The decision of the Court cannot rest on mere suspicion, but must rest on legal grounds and legal testimony. In the absence of evidence, the apparent title must prevail. It is also well established that in a case where it is asserted that an assignment in the name of one person is in reality for the benefit of another, the real test is the source whence the consideration came and that when it is not possible to obtain evidence which conclusively establishes or rebuts the allegation, the case must be dealt with on reasonable probabilities and legal inferences arising from proved or admitted facts." It is undoubtedly true that the source of money is not conclusive for one can visualise cases which are not uncommon in this country that a husband purchases property in the name of the wife which may not be intended to be benami. Similarly, property purchased by parents in the name of their children may equally well not be bemni, though the source of money is traced to the husband or the parents respectively in these two cases. Benami transactions, it must be remembered, are not uncommon in India, and indeed they have always been recognised and not frowned upon. Even section 84 of the Indian Trust Act, 1882. gives recognition to such transactions. If, therefore, in the present case, the source of the purchase money can be held to have been traced to the plaintiff and the defendants are held not to have had means for purchasing this property, then one would have to see the relationship between the parties in order to determine the probability of the purchase being benami or otherwise. Except when the purchase is to be treated as a gift by the plaintiff to the defendants, it would not be easy to rule out or exclude the benami nature of the transaction in question.

Coming now to the evidence in the case, the learned counsel for the appellants has taken us through the depositions of all the witnesses, both for the plaintiff and for the defendants. Surtia Ram and Jiwan Ram defendants have appeared in support of their case as D.W. 5 and D.W. 6. Surtia Ram has emphatically asserted that he was never a disciple of the plaintiff and, according to him, he and Jiwann defendant had earned the money with which the property in question was purchased. He has, however, been constrained to admit in his cross-examination that he neither remembers the date nor the year nor the month of the sale which took place about 6/7 years prior to the date of his statement in December, 1962. He is illiterate and he does not know how much land is in his possession of Gorkhia nor does he know how much batai did he gives each year. He has also denied knowledge of the fact that Jiwanu was ever a chela of the plaintiff. As a matter of fact, except for the bald assertion that the defendants had purchased the property, there is nothing in his evidence which would show that they had sufficient funds to purchase the property. Jiwan Ram D.W. 6 has similarly made a bald assertion that the defendants paid the price of the land from their own resources. He has, however, quite clearly and unambiguously admitted in his cross-examination that he used to call the plaintiff Guru Swami till the institution of the present suit and also that he believed in the plaintiff and confided in him till the notice Exhibit P.W. 17/3 was given by him in reply to the plaintiff''s notice. According to his testimony, he has been an employee of Jeji Sahib who used to pay him Rs. 30/- per month. It is, however, significant that Jeji Sahib, who is admitted to be alive, has not been produced as a witness. The money for the purchase of the land in question, according to him, was given from the house, but his testimony is wholly in-ufficient to sustain a finding that this defendant had any resources at his command from which he could have saved so much money. He has also admitted that he stopped co-operating with the Panchayat but the reason given by him is that the Panchayat had started meeting in the Kutiya and has denied that he did so because the Panchayat was inclined to take the view that the suit land was benami with him. I need hardly point out that the statement of Jiwan Ram defendant is far from satisfactory and is indeed wholly unimpressive.

Bawa Hari Dass plaintiff who has appeared as P.W. 17, has unequivocally sworn that he had put forward Jiwan Ram and Surtia defendants, who were his followers, as persons in whose names he desired to purchase the land benami. He had given a sum of Rs. 2,400/- to Mast Ram, who went with the defendants to get the benami sale-deed executed. The plaintiff also paid the expenses of registeration through Mast Ram. The registered sale-deed was also brought to the plaintiff by Mast Ram and the same remained with him. Indeed Jiwan Ram defendant also used to live with the plaintiff in the hut and it was about 2 or 2 1/2 years ago that Jiwan Ram stealthily removed the sale-deed from the plaintiff''s custody in the hut. Gorkhia who was a tenant used to pay batai to the plaintiff whereas Jiwanu or Jiwan Ram instead of paying batai used to give to the plaintiff grass, wood and fuel and also used to serve the plaintiff and looked after the lands. According to the plaintiff, about one and a half lacs of rupees were spent on the hut. The houses in which Gorkhia and Jiwan Ram defendants lived were also built by the plaintiff. The plaintiff''s followers, who were quite rich, supplied the funds. In his cross-examination, nothing has been ilicited which would cast any doubt on the truth of the statement made by him in regard to the purchase of the land in question benami in the name of the defendants. Mast Ram who has appeared as P.W. 3 has also fully supported the plaintiff''s version. It may be recalled that this witness had persuaded Moshu Ram to enforce his right of pre-emption against Bhagwan Singh and was also later directly concerned with the purchase of the land in question. He has expressly deposed that the plaintiff had financed the earlier litigation relating to the pre-emption suit by Moshu Ram. He has fully corroborated the plaintiff by deposing that at the time of the registration of the sale-deed, Exhibit P. 1, he had brought Rs. 2,400/- from the plaintiff, out of which Rs. 2,000/- were meant as consideration to be paid to the vendors and the balance for the necessary expenses. The sale-deed was to be got executed in the names of defendants Nos. 1 and 2 who were the plaintiff''s disciples and in whom the plaintiff had full faith. He has also sworn that he took the registered document from the Sub-Registrar''s office and handed it over to the plaintiff. The plaintiff''s residence, according to this witness, is of the value of about Rs. 70,000/- or Rs. 80,000/- the witness has added that in 1953, the two defendants were not in possession of the means with which to purchase the property in suit. In cross-examination, it has been elicited that he had contested the election of Sarpanch in 1961 against defendant No. 1 and had lost it. He has frankly admitted that he could not assign any reason as to how defendant No. 1 managed to get possession of the sale-deed. Another fact elicited in cross examination is that the defendants had now purchased certain lands in village Kathal Kathar for a sum of Rs. 7,000/-, but the witness soon added that he was not sure of the exact amount of price. Tenancy rights of Kathal Kathar had been with the defendants from the time of their ancestors. Shri B. Debrho Ram P.W. 2 who is the attesting witness of the sale-deed Exhibit D. 1 along with Mast Ram, has stated on oath that the said deed had been got executed by Mast Ram from Shri Moshu Ram and Tilak Ram and that the cons;deration had been paid to the vendors (wrongly stated by vendees) by Mast Ram. This witness was headman (Lambardar) in those dayr. Hem Ram P.W. 4 has stated that the plaintiff''s Kutiya in village Sabhroo has been in existence for the last nearly 40 years and is worth about Rs. 80,000/-. According to him, it was the plaintiff who had purchased this land and is in possession thereof. In cross-examination, it has been elicited that the defendants cultivated half of the land in dispute, the other half being cultivated by Gorkhia. It has, of course, been elicited that he had asked Mast Ram to fight election against defendant No. 1 in which Mast Ram had lost. Gita Ram P.W. 6, Sarpanch of Gram Panchayat, Anhech, has deposed about the dispute between the plaintiff and the defendants before the Panchayat. He has proved Exhibit P. 3, a copy of the proceedings recorded by the Gram Panchayat and also the order dated 16th September, 1961. According to this order, which is in the form of a report, Bawa Hari Dass is mentioned to be the real purchaser of the land in dispute, though the sale-deed was registered in the names of his Sewaks. In his cross-examination, it has been elicited that the Panchayat tried to effect a settlement between the parties and it is added that the Panchayat had really no jurisdiction to entertain the dispute like the present. Moshu Ram son of Tilak Ram has appeared as P.W. 7 and has given the whole history of the pre-emption suit and also of the execution of the sale-deed. He has expressly stated on oath that the sale deed had been got executed benami in the name of defendants, the reason given being that the plaintiff did not want to have the botheration of going to Kandaghat for getting the sale-deed executed and also, as the witness puts it. the plaintiff could not have the same executed in his own name. Mast Ram P.W. 3, according to this witness, was to take the registered sale, deed after its execution for being delivered to the plaintiff. The residential accommodation and other houses on the land in suit had also been got constructed by the plaintiff with his own funds. In cross-examination, there is nothing which could throw any doubt on the truth of his statement. Gorkhia has also appeared as P.W. 8 and according to his testimony, he is a tenant of the land in suit under the plaintiff for the last nine years. He, of course, admits to be a disciple, of the plaintiff. Rulia Ram P.W. 9 has stated about the money remitted by him for the construction of the residential rooms. Shri Sita Ram P.W. 13 has also deposed about the various amounts remitted by him to the plaintiff on different occasions. Sohan Lal P.W. 10 has deposed about the admission made by defendant No. 1 to the witness that the plaintiff had purchased the land in suit benami in the name of the defendants. Shri Anant Ram P.W. 11 also supports the benami nature of the transaction, and indeed in the presence of this witness money was entrusted to Mast Ram for payment to the vendor at the time of registration of the sale-deed.

The evidence to which our attention has been drawn clearly establishes beyond any doubt that the defendants had no resources of their own with which they could buy the land in question and construct the building thereon and that it was the plaintiff who had spent money both on the purchase and on the construction. On the facts'' and circumstances of this case, it appears to me that the source of money must be considered to be the most important factor. If the possession of the land has remained for sometime with the defendants, then this cannot on any reasonable ground counter-balance the fact of the money having been spent by the plaintiff, because Jiwan Ram is admittedly the plaintiff''s disciple in whom he had complete faith till Jiwan Ram thought of becoming dishonest and disloyal to his Guru. I am also inclined to hold that the sale-deed had ever from the date of its delivery from the office of the Registrar been with the plaintiff and that it was stealthily removed by the defendants. In so far as the motive is concerned, it is apparently because of the implicit faith which the plaintiff had in the defendants and because of the fact that Jiwan Ram was his devoted disciple that he allowed Jiwan Ram to have the sale-deed executed in the names of the defendants. The fact that the plaintiff had recently also got some other property entered in his own name is not of much consequence because, as the plaintiff explains it, the defendants had themselves got it done in the plaintiff''s name. But this apart, in view of the other circumstances. I do not think that this circumstance by itself is sufficient to counter-balance the effect of the payment of the purchase money and cost of construction.

Finally, the conclusions of the Court below are based on appreciation of oral evidence and nothing has been urged to persuade us to hold that this conclusion is by any means erroneous or unjustified on the evidence on the record. It is well-recognised that findings of fact based on appraisal or appreciation of oral evidence are not to be lightly set aside by the Court of Appeal on nicely balanced calculations and that the onus is always on the appellant to dislodge those conclusions. The appellants have miserably failed in discharging such onus.

This appeal accordingly fails and is hereby dismissed with costs.