USHA BHAR Vs. SANAT KUMAR BHAR

JUDGEMENT

(1.) This first appeal is directed against the judgment and decree dated 6th January, 1993 passed by the learned Judge, City Civil Court, 6th Bench in Title Suit No. 2358 of 1981. The respondent/plaintiff filed a suit for declaration and partition against the appellants. The suit property stands in the name of the defendant No. 1. It is claimed that the property belonged to the father of the plaintiff and the defendants No. 2, 3 and 4 and husband of the defendant No. 1, the mother. The father purchased the property in the benami of the ,other (defendant No. 1). The father had business. Out of the income of such business, the father acquired several properties including the one in dispute. It was attempted to show taht the father had sufficient means and the mother had none.

(2.) Admittedly, the property was purchased on 1st of September, 1942 in the name of the defendant No. 1 by a registered deed of conveyance from Calcutta Improvement Trust for a consideration of Rs. 10,797/- paid in five installments. The 1/4th undivided share of a building at Baral Patra Lane was purchased in the name of the defendant No. 1 in 1945 along with the other brothers of the father. According to the plaintiff, the building was constructed at different stages right from 1944-45. It was completed in 1963. Whereas the defendant No. 1 had alleged that the construction was started in 1943 and completed in 1980. The plaintiff sought to allege that his father had acquired a sum of Rs. 11,000/- by selling a land in 1958. This was alleged to be a vacant land purchased by the father in 1948. The plaintiff has not proved the said sale by any cogent evidence except making a bald statement. On this point, no suggestion was given to the defendant No. 1 at the time of her examination. Therefore, this fact of finance obtained by the father does not seem to have been proved. Admittedly, the 1/4th share in Baral Para property was sold in 1951 for a sum of Rs. 8,000/-. The plaintiff alleges that Baral Para property was purchased by the father in the benami of the mother whereas the defendant No. 1 claims that the property was purchased by her. She has alleged to have received advance from her tenants. But this was not proved by cogent evidence by the defendant No. 1. According to her, the building was completed in 1980. She had attempted to explain the source of income. She contended that the maintenance for the family was being borne by her husband whereas she purchased the property out of the money given to her by her father and the construction was made by her own fund.

(3.) In a suit claiming a property as Benami, there must be cogent and sufficient evidence to conclude that the apparent is not the real. In order to ascertain whether a particular sale is benami and the apparent purchaser is not the real owner, the burden lies on the person asserting to prove so. Such burden has to be strictly discharged through legal evidence of definite character. Such evidences either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. It is the intention of the parties, which is to be discovered. Very often such intention is shrouded in a thick veil. It is not possible to pierce the veil easily. But such difficulties would not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him. The difficulty would not justify the acceptance of mere conjecture or surmise as a substitute for proof. The proof has to be weighed against a document prepared and executed showing the person expressly as purchaser or transferee. This follows the initial presumption in favour of the apparent state of affairs being the real state of affairs. However, the question is largely one of facts. For determining this question, no absolute formula could be evolved nor can a formula so evolved be uniformly applied in all situations. But in such circumstances, it is the probabilities and inferences, which are to be gathered in order to discover the relevant indicia. It is not sufficient to show circumstances, which might create suspicion. The Court cannot decide on the basis of suspicion. It has to act on legal grounds established by evidence. There have been various decisions by different High Courts and the Supreme Court on these questions. By now these propositions are well settled through those decisions. In order to determine whether a transaction was or is a benami one, the following guidelines may be followed:-