Vinod Kumar Dhall vs Dharampal Dhall (Deceased) Through His Legal Representatives And Others

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 2

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 3

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 4

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 5

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 6

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 7

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 8

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 9

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 10

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 11

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 12

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 13

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.

14

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 15

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 16

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 17

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 18

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 19

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