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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.4534-4535_OF 2018 (Arising out of SLP(c) Nos.35337-35338 of 2017)

VINOD KUMAR DHALL    ..APPELLANT

VERSUS

DHARAMPAL DHALL (DECEASED) THROUGH HIS LRS. & ORS.    ..RESPONDENT(S)

O R D E R

1. Leave granted.

2. Heard learned counsel for the parties.

3. The  defendant  is  in  appeal  aggrieved  by  the

judgment and decree passed by the trial court, as

affirmed by the High Court in first appeal and review

applied had also been rejected by the High Court.

The  plaintiff-respondent,  Dharampal  Dhall  (since

deceased),  filed  a  suit  for  restoration  of

possession,  mesne  profits and  for  a  permanent

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injunction  with  respect  to  House  No.ED-48,  Tagore

Garden, New Delhi.

4. The plaintiff – Dharampal Dhall came with a case

that  he  acquired  the  leasehold  rights  on  plot

admeasuring 149.33 square yards under the perpetual

lease deed granted by the President of India in his

favour and registered on 31.01.1966.  The plaintiff

raised a construction over the plot and obtained the

necessary sanction from the competent authority as

per  the  site  plan  and  got  installed  electricity,

water,  and  sewerage  connections  in  the  premises.

However,  it  was  stated  in  the  plaint  itself  that

entire family started living in the said house.  The

marriage of plaintiff, as well as defendants and all

sisters, were solemnized from the house in question.

When the relationship of Defendant No.2- the sister

of the plaintiff, became strained with her husband,

she started living in the said house along with her

daughter.  Defendant No.1 for some time in 1971 had

resided  out  of  Delhi.   Father  of  the  parties  –

Kashmiri Lal Dhall died on 10.08.1980, leaving behind

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several properties at Delhi.  Defendant No.1 started

living separately with effect from the year 1986.  He

acquired a house at Moti Nagar, New Delhi, and one

more  residential  accommodation,  i.e.,  GH-1/318,

Pashchim Vihar, New Delhi.

5. It was further averred in the plaint that the

mother  of  the  parties  died  in  the  premises  in

question in the year 1990.  The house remained in the

custody/ possession of the Defendant No.2.  At the

relevant point of time, the plaintiff was posted at

Bombay.  The house was furnished.  Furniture of the

plaintiff was still lying in the house.  Plaintiff

came back to Delhi in the year 1993. However, at the

same time, Defendant No.2 was permitted to occupy the

house.  Later on, it was found that Defendant No.1

had  also  started  living  in  the  said  house.   The

plaintiff asked defendants to vacate the premises.

They  did  not  do  so.  Though,  Defendant  No.2  had

shifted residence in January 1995.  Hence, the suit

was  filed,  after  serving  notice  dated  30.6.1995.

Defendant  No.1  was  ousted  from  the  house  by  the

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mother in the year 1986. Thus, he had no right in the

house. The conduct of Defendant No.1 was not proper

with the plaintiff.  

6. In  the  written  statement  filed  by  Defendant

No.1, it was contended that the suit was not properly

valued.   The  defendant  had  been  occupying  the

premises since the year 1966.  The suit was barred by

limitation and was not maintainable.  The allotment

of the plot was obtained initially in the name of

Kumari Sneh Lata, who was the eldest child of late

Kashmiri  Lal  Dhall.   The  father  of  the  parties

obtained  it  in  the  year  1963  from  the  Delhi

Development Authority (DDA).  The entire amount was

paid by late Kashmiri Lal to the DDA.  Subsequently,

construction was raised in 1965-66 by Kashmiri Lal

out of his own money. At that time. Plaintiff was

only  a  student  studying  at  IIT,  Kharagpur,  West

Bengal.  The possession of the defendant was in the

capacity of the owner.  The plaintiff had no source

of income at the relevant point of time.  No gift

deed  had  been  made  by  any  person  in  plaintiff’s

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favour.  They are four sisters and two brothers, left

as legal representatives of late Shri Kashmiri Lal.

The  suit  was  bad for  non-joinder  of  necessary

parties.  The plaintiff was, thus, not entitled to

any relief.  

7. The  trial  court  had  decreed  the  suit.   The

judgment and decree had been affirmed by the High

Court.  Aggrieved thereby, the appellant has come up

in appeals.

8. We have heard learned counsel for the parties at

length.   It  was  submitted  by  Mr.  Mahabir  Singh,

learned senior counsel appearing on behalf of the

appellant that the property was admittedly acquired

in the name of Kumari Sneh Lata.  Later on, at the

time  when  her  marriage  was  performed  in  the  year

1966, the property was transferred in the name of

Dharampal.   At  the  time  when  the  property  was

acquired in the name of Kumari Sneh Lata, in the year

1963, Dharampal, the plaintiff was a student at IIT,

Kharagpur.  He  had  no  source  of  earning.   Thus,

obviously, the money came from father and house was

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constructed in the year 1965-66.  Thus, the plaintiff

had  no  source  of  income  which  could  have  been

invested in the house at the relevant point of time.

As per the statement made by the plaintiff, he joined

the services in April 1966.  By that time, the house

was already constructed.  Thus, it was the property

owned by the family.  The father had spent the money

for construction of the house and for allotment of

plot and thus it was a family property.  It was used

as the residence of the entire family, marriages of

the  children  and  the  factum  of  enjoyment  clearly

indicated that it was not the property exclusively

owned by the plaintiff.  It was the family property

even as per the case set up in the plaint as well as

the vital admissions made by the plaintiff in his

deposition.

9. Mr. E.C. Agrawala, learned counsel appearing on

behalf of the respondents, has submitted that the

property, in fact, was acquired by Kumari Sneh Lata,

out of her earning, she was the teacher.  It was also

submitted that a letter for change in the name was

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issued  at  her  address  of  school  where  she  was

serving.  Thus, Kumari Sneh Lata had acquired the

plot from DDA out of her own earning.  Thus, it could

be said to be the family property got allotted by

father Kashmiri Lal Dhall.  Thus, it was open to

Kumari Sneh Lata to give it to the plaintiff.  Thus,

it would not become the family property.  Though it

was occupied by the family, from time to time the

plaintiff used to come and reside therein.  He had

permitted Defendant No.2 to reside only due to the

fact that her relationship with husband was strained

and Defendant No.1 was ousted by the mother in 1986.

He had obtained two other properties in different

localities at Delhi, i.e., Moti Nagar, New Delhi and

Pashchim Vihar, New Delhi.  He had reoccupied the

property in question behind the back of the plaintiff

in  the  year  1995-1996.   Thus,  the  plaintiff  was

entitled to restoration of possession of the property

and mesne profit.  Both the Courts have concurrently

found the fact that the plaintiff was the owner. It

was  purely  the  finding  of  fact  and  no  case  for

interference in the appeals by this Court was made

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out .

10. The learned counsel for the appellant had relied

upon the decision in  Surendra Kumar v. Phoolchand

(Dead) Through Lrs. & Anr. (1996) 2 SCC 491 in which

this Court had laid down that there is no presumption

that a family, because it is joint, possessed the

joint property and therefore the person asserting the

property to be joint had to establish that the family

was possessed of some property with the income of

which  the  property  could  have  been  acquired.  But

where it is established or admitted that the family

which possessed joint property which from its nature

and relative value may have formed sufficient nucleus

from which the property in question may have been

acquired,  the  presumption  arises  that  it  was  the

joint property and the burden shifts to the party

alleging self-acquisition to establish affirmatively

that the property was acquired without the aid of the

joint family.  When the property was purchased by

Manager  of  the  joint  family  in  the  name  of  the

appellant  who  was  then  minor  in  the  absence  of

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material to establish that consideration money was

paid out of separate funds, it was opined that the

property was rightly held to be the joint property by

the courts below.  

11. In Union of India v. Moksh Builders & Financiers

Ltd. & Ors. (1977) 1 SCC 60, this Court has observed

that 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 as also to find out who has been

in the enjoyment of the benefits of the transaction.

The case of the appellant must be dealt upon the

reasonable probabilities and legal inferences arising

from proved or admitted facts. The burden of proof is

not static and may shift during the course of the

evidence.  Thus, while the burden initially rests on

the party who would fail if no evidence is led at all

after the evidence is recorded, it rests upon the

party  against  whom  judgment  would  be  given  if  no

further evidence were adduced by either side on the

evidence  on  record.   Once  the  evidence  has  been

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adduced  the  case  must  always  be  adjudged  on  the

evidence led by the parties. This Court has laid down

thus:

"15.  It  is  nobody's  case  that  the sale  of  the  house  to  defendant  2  was fictitious  and  that  the  title  of  the transferor was not intended to pass. What we have to examine is whether the title, on the sale of the house in December 1946, was transferred  to  defendant  3,  who  was  the real purchaser, and not to defendant 2, who was only the ostensible transferee and was no  more  than  a  "benamidar".  It  has  been held  in  Gangadara  Ayyar  and  Ors.  v. Subramania Sastrigal and Ors. AIR 1949 FC 88, 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."  

It is also necessary to examine in such cases  who  actually  have  enjoyed  the benefits of the transfer. Both these tests were  applied  by  this  Court  in  Meenakshi Mills,  Madurai  v.  The  Commissioner  of Income-Tax  Madras. [1955]  S.C.R.  691.  It is,  therefore,  necessary  in  the  present case,  to  find  out  the  source  of  the consideration for the transfer, as also to find out who has been in the enjoyment of the  benefits  of  the  transaction.  It  is equally  well  settled  that,  although  the onus of establishing that a transaction is 'benami' is on the plaintiff.

“where it is not possible to obtain evidence which conclusively establishes or rebuts the allegation, the case must be  dealt  with  on  reasonable

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probabilities  and  legal  inferences arising from proved or admitted facts."

16. The burden of proof is, however not static, and may shift during the course of the  evidence.  Thus  while  the  burden initially rests on the party who would fail if  no  evidence  is  led  at  all  after  the evidence  is  recorded,  it  rests  upon  the party against whom judgment would be given if  no  further  evidence  were  adduced  by either side i.e. on the(evidence on record. As has been held by this Court in  Kalwa Devadattam and Ors. v. The Union of India and  Ors.  [1964]  3  SCR  191  that  where evidence  has  been  led  by  the  contesting parties on the question in issue, abstract considerations  of  onus  and  out  of  place, and  the  truth  of  otherwise;  of  the  case must always be adjudged on the evidence led by  the  parties.  This  will  be  so  if  the court finds that there is no difficulty in arriving  at  a  definite  conclusion.  It  is therefore necessary to weigh the evidence in this case and to decide whether, even if it was assumed that there was no conclusive evidence to establish or rebut the "benami" allegation,  what  would,  on  a  careful assessment of the evidence, be a reasonable probability  and  a  legal  inference  from relevant and admissible evidence.”

12. In  Sri  Marcel  Martins  v.  M.  Printer  &  Ors.

(2012) 5 SCC 342 it was held that Benami Transactions

(Prohibition) Act, 1988 (for short, “the Act”) would

apply only in case property was held benami.  In case

Section 4(3) is applicable it could not be said that

property was held benami as such the provision of the

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Act would not apply.

13. Section  2(a)  of  Act  defined  ‘benami

transactions’ as under:

“2.  Definitions-  In  this  Act,  unless  the context otherwise requires,--  

(a) benami  transaction  means  any transaction  in  which  property  is transferred  to  one  person  for  a consideration  paid  or  provided  by another person;

(b) .....”

Section 4 of the Act is reproduced as under:

“4.  Prohibition  of  the  right  to  recover property held benami-  

(1) No suit, claim or action to enforce any right in respect of any property held benami  against  the  person  in  whose  name the property is held or against any other person  shall  lie  by  or  on  behalf  of  a person claiming to be the real owner of such property.  (2)  No  defence  based  on  any  right  in respect  of  any  property  held  benami, whether against the person in whose name the property is held or against any other person,  shall  be  allowed  in  any  suit, claim  or  action  by  or  on  behalf  of  a person claiming to be the real owner of such property.  

(3) Nothing in this section shall apply,--   (a)  where  the  person  in  whose  name  the property  is  held  is  a  coparcener  in  a Hindu undivided family and the property is

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held for the benefit of the coparceners in the family; or  (b)  where  the  person  in  whose  name  the property  is  held  is  a  trustee  or  other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or  towards  whom  he  stands  in  such capacity.

(emphasis supplied)

The  bare  reading  of  the  aforesaid  provision

contained in Section 4(3) of the Act makes it clear

that where a person in whose name a property is held

as coparcener in a Hindu Undivided Family and the

property is held for the benefits of the coparcener

in the property, provisions of Section 4 containing

prohibition of the right to recover the property held

benami would not be applicable.  The bar of the Act

is not applicable to a transaction as contained in

section 4(3) (a) and (b). If the property is held in

fiduciary capacity or is held as a trustee for the

benefits of another person for whom he is a trustee

or towards whom he stands in such capacity.  Thus,

the  provision  of  Act  could  not  be  said  to  be

applicable in the instant case.

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14. In Vathsala Manickavasagam & Ors. v. N. Ganesan

& Anr. (2013) 9 SCC 152, this Court considered the

question whether the property was held benami or was

joint  family  property.  Where  there  was  a  tacit

admission that the suit property was purchased by his

father in his name for which he was not responsible,

it was held to be joint family property.   

15. After hearing learned counsel for the parties,

considering the aforesaid legal position, we are of

the considered opinion that the appeals deserve to be

allowed. Firstly, the plaintiff has not come up with

the case that the property was acquired in the name

of Kumari Sneh Lata in the year 1963 and it was she

who had spent the money for getting the land allotted

from DDA and in the construction of the house. No

case  has been  set up  in the  plaint to  show that

Kumari  Sneh  Lata  had  spent  the  money  in  the

construction of the house.  He has suppressed the

fact of allotment in the name of Kumari Sneh Lata.

On the contrary, it had been admitted in the plaint

itself that family started residing in the premises

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right from the beginning.  In paragraphs 4 and 5,

following is the pleading made by the plaintiff:

“4. That on completion of the house all family  member  including  defendant  started living in the aforesaid house, the marriage of plaintiff as well as the defendant and all sister were solemnized from the house in dispute.  

5. That  the  relation  between  the defendant  No.2  and  her  husband  became strain  consequently  she  was  been given shelter in the premises in dispute by the plaintiff.”

16. It  is  apparent  that  the  entire  family  was

residing  in  the  house  in  question  right  from  the

beginning and the marriages of the plaintiff as well

as  the  defendants  and  all  other  sisters  were

solemnized in the house in question.  It is apparent

that Defendant No.2 was also residing in the house

continuously right from the beginning and also the

mother  and  she  had  also  died  in  the  house  in

question, as per the case set up by the plaintiff in

the year 1990.  Thereafter, the house remained in

occupation of the family members, is also apparent.

On  the  contrary,  there  is  admission  made  by  the

plaintiff that he never resided in the house.  The

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following is the relevant portion of the deposition

of the plaintiff set out hereunder:  

“It is correct that I never remained in the  house  in  dispute  since  its construction.  It is incorrect to say that after completion of the house, my parents and  all  the  four  sisters  including defendant No.2 and brother defendant No.1 not started living with me at the house in dispute.”

From the aforesaid statement, it is clear that

the plaintiff never resided in the house and was not

in possession and enjoyment of the house at any point

in time.   

17. Apart from that, when we come to the source of

money  for  the  purpose  of  purchase  of  plot,

admittedly, the plaintiff was a student and he was

admitted in the year 1961 at IIT, Kharagpur.  At the

time when the land was allotted in the name of Kumari

Sneh  Lata, he  was still  a student  and he  had no

source of income at the relevant time in 1963 or in

January 1966, when the allotment was changed in his

name owing to the marriage of Kumari Sneh Lata. Thus,

obviously,  it  was  Kashmiri  Lal  who  had  spent  the

money  in  getting  the  land  allotted  and  also  had

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raised the construction in the year 1965-66.  Though

the plaintiff has stated that the construction was

made sometime in the year 1966, his version cannot be

said to be reliable.  The plaintiff was silent in the

plaint  when  the  construction  was  raised.   The

defendant has come up with a specific case that the

construction was raised in the year 1965-66 and that

is reliable. Apart from that even if construction was

made  in  1966  the  plaintiff  had  admitted  that  he

obtained employment only in April 1966 and when the

house was constructed in 1966, the plaintiff was not

having enough earning so as to invest in the house or

to purchase the plot in 1963.  He was not even in a

position to say his salary was Rs.400 or not.  It was

obviously owing to the marriage of Kumari Sneh Lata

that  the  plot  was  transferred  in  the  name  of

Dharampal,  who  happens  to  be  the  elder  son  of

Kashmiri Lal.  Thus, apparently no money was paid by

Dharampal for allotment of the land to the DDA and

obviously, it was paid in 1963 by Kashmiri Lal.  The

money was also spent in construction by the father

Kashmiri Lal.  Occupation and enjoyment of the house

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were with the entire family right from the beginning

and till today the family is residing in the house.

Apart from that, the plaintiff has admitted that when

he came to Delhi on posting at All India Institute of

Medical Sciences, he started living in the rented

accommodation,  as  there  was  a  paucity  of

accommodation for his stay in the house in question.

Thus, all the facts and circumstances indicate that

it  was  a  family  property  and  not  the  exclusive

property  of  the  plaintiff  –  Dharampal.  Thus,  the

Courts below have acted not only perversely but in a

most arbitrary and illegal manner, while accepting

the ipse dixit of the plaintiff and in decreeing the

suit.  Such finding of facts which are impermissible

and perverse cannot be said to be binding.  The legal

inferences  from  admitted  facts  have  not  been

correctly drawn.

18. Merely  the  fact  that  house  tax  receipt,

electricity and water bills and other documents are

in the name of Dharampal would carry the case no

further,  as  it  was  the  father  who  got  the  name

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changed of Kumari Sneh Lata in question in the name

of Dharampal.  The receipts were only to be issued in

the name of the recorded owner, but Dharampal never

resided in the house as he was in service out of

Delhi, obviously, the amount was paid by family, not

by  Late  Dharampal.  Thus,  we  find  that  no  benefit

could have been derived from the aforesaid documents.

19. In view of the aforesaid, we have no hesitation

in allowing the appeals and dismiss the suit filed by

the  plaintiff-respondents.  Thus,  we  order

accordingly.  No  order  as  to  costs.   Pending

application, if any, shall stand disposed of.

...................J. [ARUN MISHRA]

...................J. [UDAY UMESH LALIT]

NEW DELHI 16TH APRIL, 2018