CHTTABALA KUNDU Vs. SAILEN BEHARI PAUL

JUDGEMENT

(1.) BOTH the appeals arising out of a common judgment were heard together and are being disposed of by this common judgment. The suit giving rise to these two appeals was filed fro a declaration that the suit-property standing in the name of one of the defendants was the benami property of the plaintiff and for a further declaration that the transfers of portion of the suit-property between the defendants inter se were malafide, sham and void.

(2.) ONE would seldom hold out another to be the owner of his property, but for some oblique mundane purpose and not just to enable his to count the beads of his rosary or to chant the holy scriptures. His hands, more often than not, are unclean and he shpuld not, therefore, have been entitled to any equity or any other forensic protection. But the courts in India, including our pre independence as well as post-independence apex courts, far from frowning upon them, have approved benami transactions as legal and valid. Authors of such transactions, therefore, merrily go on enjoying their benami properties except in cases covered by Section 115 of the Evidence Act or by Section 41 of the Transfer of Property Act. As a result of operation of the provisions of these two Sections, such a person would not be allowed to assert his title against a person to whom he has represented his benamder to be the real owner and who, acting on such representation, has altered his position and also against persons, who are transferees for value from the benamdar and have acted in good faith after making reasonable enquiries. It is only in 1972 (and better late than never)that the authorities concerned have shown their effective awareness of the menace of' benami transactions and in order to put check thereon have inserted Section 281a in the Income Tax Act, 1961 with effect from 15. 11. 1972. That Section now provides that where a property is held benami, any person claiming to be the real owner of such property is restrained from enforcing his claim in a court of law unless the income, if any, from such property has been disclosed in his returns of income or such property has been disclosed in his return of net wealth or notice in the prescribed form with prescribed particulars in respect of the property has been given to the Income Tax Officer. This should go a very long way to put a stop to benami transactions, because once the author of the benami shows the property or its income as his own in his tax-returns, the veil of benami would at once stand withdrawn. But the suit giving rise to these two appeals having been filed in 1960, the provisions of section 2 81 A, inserted in 1972, would not be attracted and need not detain us.

(3.) THE law relating to benami, which is well settled for about a century, may be said to demonstrate in the field of law the philosophical Vedantic doctrine that the apparent is not the real which is very often shrouded by the veil of the apparent. According to that law, even though one is recorded as the owner of a property in all the relevant records, some one also would still be allowed to overturn the apparent veil of the records and to assert to possess the- real title. The authorities on the point are galore and reference may be made by way of illustration to one of them being the decision of the Supreme court in Jaydayal Poddar v. Bibi Hazra ( AIR 1974 SC 171 ). It has been pointed out by the Supreme Court in that case (supra, at 172)that though the question whether a particular property is benami or not is largely one of fact and for determining that question no absolute formulae or acid test. 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 of consideration money, (2)the nature and possession of the property, (3) motive, if any, for giving. the transaction a benami colour, the position of the parties and the relationship, if any, between the' claimant and the alleged benamdar, (5) the custody of the title deeds and (6) the conduct of the parties concerned in dealing with the property. The above indicia are not exhaustive and their efficacy varies according to the facts and circumstances of each case, but nevertheless the source of consideration money is by far the most important test for determining whether the properly standing in the name of one in reality belongs to another.