Pushpalata v. Vijay Kumar (dead) Thr. Lrs. & Ors.
S. RAVINDRA BHAT, J.
1. With the consent of the parties, this matter is heard finally. The
present appeal challenges a judgment of the Madhya Pradesh High Court
87
at Jabalpur, dismissing the petitioners’ second appeal1 and affirming the
order and decree passed by the trial court 2.
Facts and contentions:
2. The original first plaintiff – Laxmi Prasad, was the karta of a
Hindu Undivided Family (HUF) consisting of his wife, Janki Bai (second
plaintiff), two daughters - Sarita and Pushpalata (se cond and third
plaintiffs), and two sons – Vijay Kumar and Rajendra Kumar (the first
two defendants). The parties are hereafter referred b y name, or as
‘plaintiffs’ and ‘defendants’.
3. Laxmi Prasad purchased a property measuring 1.6 acres at
Khasra No. 44/2 (in Bandobast No. 102, Patwari Halka No. 65 in Lalipur
Ward) by agreement dated 15.02.1960 (hereafter “first property”). This
first property was purchased in the name of Vijay Kumar (i.e., his son
and first defendant). Another piece of property measuring 2332 sq. ft
(Plot No. 1/1 in Nazul Street No. 22B; hereafter “second prope rty”)
was purchased by Laxmi Prasad on 21/2.05.1966 in the names of his
two sons - Vijay Kumar and Rajendra Kumar. It was alleged that Laxmi
Prasad later constructed a two-storied building, with his earnings. Similarly,
Laxmi Prasad purchased two more properties admeasuring 150 sq. ft .
on 18.12.1972 and 453 sq. ft. on 25.05.1973, again in the names of Vijay
Kumar and Rajendra Kumar. According to Laxmi Prasad, these properties
were bought by him for the proper maintenance and education of his
children; he was involved in the construction business.
4. On 03.05.1994, Vijay Kumar sold 0.047 hectares out of the
land admeasuring 1.6 acres at Khasra No. 44/2 (first property) – which
forms the subject of this suit (hereafter “suit propert y”) – to the third
defendant (hereafter “purchaser”). He allegedly furthe r sold 0.019
hectares on 21.06.1995 and 0.049 hectares on 27.08.1996 in favour of
the third defendant (despite an interim injunction).
5. Laxmi Prasad filed a suit on behalf of himself, his wife (w ho
passed away in 1996) and two daughters, on 30.09.1994, against his two
sons (first and second defendants) and the purchasers of the pr operty
(third and fourth defendants) seeking setting aside of the sale deed dated
1 Second Appeal No. 1738/2005, judgment dated 04.04.2 013 passed by the Madhya
Pradesh High Court at Jabalpur.
2 Civil Suit No. 47A/94, judgment dated 29.09.2004 passed by the Second Civil Judge,
Class-I, Mandla (MP).
PUSHPALATA v. VIJAY KUMAR (DEAD) THR. LRS. & ORS.
[S. RAVINDRA BHAT, J.]
03.05.1994 and the relief of declaration of title. The plaintiffs urged that
they and the first and second defendants, were members of a HUF, and
that original first defendant (Vijay Kumar) was a benami owner who
could not have alienated the suit property. It was alleged that the properties
were paid for or purchased by the first plaintiff- Laxmi Prasad and that
the first two defendants, minors, had no source of income. Rajendra
Kumar filed written statement dated 16.02.1995, and Vijay Kumar and
the third defendant (subsequent purchaser) filed their respective written
statements on 07.12.1999. In the meanwhile, in 1996, the trial court had
restrained the defendants from alienating the suit properties, and later in
2002 from constructing over the suit property.
6. The trial court framed 14 issues; but was predominantly faced
with the issue of whether the first plaintiff was the sole owner, in
possession of the properties purchased, and consequently, whether the
first defendant was not entitled to sell the disputed land. The trial court
by judgment dated 29.09.2004 dismissed the suit on the ground that the
original plaintiff had failed to prove by cogent evidence that the suit
property was purchased for the welfare of the co-parceners of the HUF
and declared that the first defendant had the right to sell t he disputed
properties in his name.
7. The appellate court declined the plaintiffs’ appeal3 holding that
the first plaintiff himself intended for the first defendant to be the absolute
owner, and it was not a benami transaction. It was further held that
even in arguendo, if he was a benami owner (given that the first plaintiff
had paid for the property), that the suit was not maintainable, in view of
the provisions of the Benami Transaction (Prohibitio n) Act, 1988
(hereafter ‘Act’), since the plaintiffs had failed to prove that the property
was purchased for the benefit of it the coparceners. The High Court by
impugned judgment dated 04.04.2013 dismissed the second appeal, with
costs. The High Court reiterated that the plaintiffs had fa iled to prove
that the property was purchased for the benefit of the coparceners, and
hence the suit was rightly rejected as not maintainable. Aggrieved, the
plaintiffs sought special leave.
8. For the sake of completeness, it may be noted that Mam ata
Bai (third defendant, a subsequent purchaser) filed a contempt petition
which was disposed by this court 4, as unmerited. Further, during the
3 By order dated 26.04.2005 passed by the District J udge, Mandla (MP) in Civil Suit
No. 19-A/2004.
4 Order dated 16.05.2018 in Contempt Petition (C) No . 509/2015.
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proceedings, Laxmi Prasad was deleted5 from the list of petitioners, and
additionally, legal representatives substituted6 the original first defendant-
Vijay Kumar. The original third plaintiff - Smt. Sarita (Laxmi Prasad’s
first daughter), died during pendency of appeal before High Court and
no legal representatives were brought on record. Therefore, the parties
as they now stand are: the sole petitioner - Ms. Pushpalata (d/o Lax mi
Prasad); Respondent Nos. 1.1-1.5 (legal representatives of Vijay Kumar,
deceased s/o Laxmi Prasad), Respondent No. 2 – Rajendra Kumar (s/
o Laxmi Prasad and original second defendant), Respondent No. 3 and
4 (subsequent buyers), among other contesting respondents.
9. Counsel appearing on behalf of the petitioners, contended that
the defendants, i.e., the two sons, were minors with no independent
source of income. They neither had the capacity to purchase t he said
properties, nor alienate them. It was urged that the plaintiffs were joint
owners of the property, and being coparceners, out of love and affection,
the properties were registered in the names of the def endant sons.
Instances in the written statements filed by the defendants, were pointed
out in support of these averments – that the defendants were minors at
the time, by their own admission. Furthermore, the second defe ndant-
Rajendra Kumar had in fact, admitted the petitioner’s claim in the civil
suit.
10. The petitioner-plaintiffs urged that the facts of this case, and
the pleadings, established that the property was purchased long ago, by
the father, i.e., the late Laxmi Prasad for the benefit of the HU F could
not be treated as that of the sons. Reliance was placed on Section 4 (3)
(a) of the Act in this regard, to say that the ostensible owner could not,
under the Act, be treated as the owner, because the ownership was on
behalf of the HUF. Reliance was placed on this court’s j udgment in
Valliammal v. Subramaniam7 to urge that it is not only the documentary
evidence, but the surrounding circumstances, such as who funded the
transaction, relationship of the parties, nature of possession after the
sale, etc., that had to be considered. It was urged that the m aterial on
record, such as the pleadings and evidence, established the pl aintiffs’
claim. Counsel stressed on the fact that the first plainti ff’s deposition
5 Order dated 27.08.2018, IA No. 91588/2018 allowed.
6 Order dated 11.05.2022, IA No. 85600/2021 allowed.
7 2004 Supp (1) SCR 966
PUSHPALATA v. VIJAY KUMAR (DEAD) THR. LRS. & ORS.
[S. RAVINDRA BHAT, J.]
about having paid for the property, and that the first two d efendants
were his sons, went unrebutted. Furthermore, the first defendant did not
produce any material to support that he had the funds, or the means of
livelihood to purchase the properties. Likewise, the second defendant
supported the plaintiffs, and admitted to the suit averments; he also
deposed in favour of the plaintiffs. Counsel urged that in these
circumstances, the findings of the two courts below were contr ary to
evidence. The High Court, in declining to hold that the questions of law
were to be answered in favour of the plaintiffs, erred in law.
11. Counsel on behalf of the respondents defended the impugned
judgment and insisted that the High Court had correctly appreciated the
matter by dismissing the suit as being barred by Section 4 (1) of the Act.
It was further urged that the first appellate court was v irtually the last
arbiter on facts and evidence, and that it ought not to be interfered with,
given the absence of any substantial question of law.
12. It was further submitted that this court rarely – if ever interferes
with concurrent findings. Absent any manifest error of law, or
unreasonable findings of fact, the discretion under Article 136 of t he
Constitution, should not be invoked to upset findings of the courts below.
Analysis and conclusions
13. In light of the contentions raised, it is necessary to consi der
the relevant provisions of the Act. Section 2 defines ‘benami transaction’
as as any transaction in which property is transferred to one pe rson,
for consideration paid or provided by another person . Section 3 8,
prohibits entering such transactions, barring for the benefit of wife or
unmarried daughter. Section 4 reads as follows:
“4. Prohibition of the right to recover property hel d
benami-
8 “3. Prohibition of benami transactions-
(1) No person shall enter into any benami transacti on.
(2) Nothing in sub-section (1) shall apply to the purchase of property by any
person in the name of his wife or unmarried daughter and it shall be presumed, unless
the contrary is proved, that the said property had been purchased for the benefit of the
wife of the unmarried daughter.
(3) Whoever enters into any benami transaction shal l be punishable with
imprisonment for a term which may extend to three y ears or with fine or with both.
(4) Notwithstanding anything contained in the Code of Criminal Procedure,
1973, an offence under this section shall be non-cognizable and bailable.”
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(1) No suit, claim or action to enforce any right in respec t
of any property held benami against the person in wh ose
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 nam e
the property is held or against any other person, sh all 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) wher e the
person in whose name the property is held is a coparcener
in a Hindu undivided family and the property is held for
the benefit of the coparceners in the family; or (b) w here
the person in whose name the property is held is a trustee
or other person standing in a fiduciary capacity, and t he
property is held for the benefit of another person for w hom
he is a trustee or towards whom he stands in such capacity ”
The courts, by concurrent finding, have concluded that the suit is
barred by Section 4(1) of the Act, whereas the petitioner-plaintiffs urge
that the exception in Section 4(3), applies to the present case.
14. The written statement filed by the first defendant - Vijay Kumar
(now deceased), contains an explicit admission that the sui t property
was purchased when he was a minor. He does not however, mention
how he purchased the same. It is simply claimed that the numer ous
properties in question, were bought by him, in his name, and his younger
brother’s name.
15. However, Vijay’s younger brother - Rajendra Kumar (second
defendant) in his written statement filed in the su it proceedings,
categorically states in relation to the suit property t hat “the defendant
No. 1 knowing this fact very well that the plaintiff no. 1 had purchased
aforementioned property for the welfare of his family, w hich is joint
property, has sold the land deliberately by deriving undue adv antage
of this land being benami, whereas the actual owner of the pr operty
is plaintiff No. 1”. In other words, he corroborated his father’s position
in the proceedings, as well as that of the sisters and admitted the plaint
averments. In his examination-in-chief, he reiterated that the properties
PUSHPALATA v. VIJAY KUMAR (DEAD) THR. LRS. & ORS.
[S. RAVINDRA BHAT, J.]
were purchased from their father’s personal income for the welfare,
education, maintenance, and necessary arrangements for his children.
16. Laxmi Prasad, in his examination-in-chief, deposed that t he
suit property had been purchased in 1960 for the benefit of the HUF, in
the name of his first son - Vijay Kumar who was 13-14 years old at the
time. Similarly, with regards to the second property it was contended
that Vijay Kumar was 17-18 years old, and Rajendra Kumar w as 6-7
years old. Though facially inconsistent (with respect to the ages of the
two sons, given that the two transactions are 6 years apart) , the fact
remained that clearly both the sons were minors, at the stage when the
properties were purchased. It is put to Laxmi Prasad in the cross-
examination, whether his in-laws (i.e., maternal grandparents of Vijay
Kumar) had lent Vijay the money to purchase the property – which he
denied. It is pertinent to note however, that no such plea (of funding by
his grandparents), was averred to in Vijay Kumar’s own written pleadings.
17. As far as the defendants are concerned, clearly the se cond
defendant, i.e., Rajendra Kumar, admitted to the claim, in the w ritten
statement, unambiguously stating that the plaintiff was the owner of the
property, and the first defendant was seeking to derive undue advantage
of his being named as the ostensible owner of the property.
18. There is nothing on the record, to support the plea of first
defendant (Vijay Kumar) that he was the real and true owner of the
property. The trial and first appellate court have not relied on any material
to show that Vijay Kumar had any source of income, or was living away
from his father, or was not dependant on him. The faint suggestion that
Vijay’s maternal grandparents had lent the money, was deni ed by the
plaintiff; no defence witness in support of that suggestion appears to
have been examined.
19. With this factual background, the petitioner’s reliance on Section
4(3)(a) of the Act and the exception it offers to the prohibition of benami
transactions under the Act, requires reconsideration.
20. The High Court’s consideration of the matter in second appeal,
is limited to substantial questions of law, as per Section 100 of the Civil
Procedure Code. That the High Court cannot reappreciate evidenc e or
matters of fact, has been reiterated in numerous decisions of this court.
The High Court identified two substantial questions of law – firstly,
whether the lower appellate court had erred in confirming the trial court’s
93
findings and decree; and secondly, whether there was an error of law
in holding that the suit filed by the plaintiffs, is barred under Section 4 of
the Act. Relying on this court’s decision in Rajgopal Reddy v. Padmini
Chandrashekhar9 the High Court held that the suit was barred by Section
4 of the Act because it applied the provisions of the Act to the facts
confirmed by the first appellate court – i.e., that the suit property was
not purchased for the benefit of the members of HUF.
21. The court’s approach in cases, where the claim is that a
property or set of properties, are benami, was outlined, after considering
previous precedents, in Binapani Paul v. Pratima Ghosh10, where this
court cited with approval extracts from Valliammal v. Subramaniam
(supra):
“47. Burden of proof as regards the benami nature o f
transaction was also on the respondent. This aspect of the
matter has been considered by this Court in Valliam mal
(D) By LRS. v. Subramaniam and Others [(2004) 7 SCC
233] wherein a Division Bench of this Court held:
“13. This Court in a number of judgments has held that it
is well established that burden of proving that a particular
sale is benami lies on the person who alleges the
transaction to be a benami. The essence of a benami
transaction is the intention of the party or partie s
concerned and often, such intention is shrouded in a thick
veil which cannot be easily pierced through. But su ch
difficulties do not relieve the person asserting th e
transaction to be benami of any part of the serious onus
that rests on him, nor justify the acceptance of me re
conjectures or surmises, as a substitute for proof. Re f to
Refer to Jaydayal Poddar v. Bibi Hazra [(1974) 1 SCC 3]
, Krishnanand Agnihotri v. State of M.P. [(1977) 1 SCC
816 : 1977 SCC (Cri) 190] , Thakur Bhim Singh v. Thakur
Kan Singh [(1980) 3 SCC 72] , Pratap Singh v. Saroji ni
Devi [1994 Supp (1) SCC 734] and Heirs of Vrajlal J .
Ganatra v. Heirs of Parshottam S. Shah [(1996) 4 SC C
490]. It has been held in the judgments referred to above
9 (1995) 2 SCC 630
10 (2007) 6 SCC 100
PUSHPALATA v. VIJAY KUMAR (DEAD) THR. LRS. & ORS.
[S. RAVINDRA BHAT, J.]
that the question whether a particular sale is a benami or
not, is largely one of fact, and for determining the questi on
no absolute formulas or acid test, uniformly applicable in
all situations can be laid. After saying so, this Court spelt
out the following six circumstances which can be taken as
a guide to determine the nature of the transaction:
(1) the source from which the purchase money came;
(2) the nature and possession of the property, afte r the
purchase;
(3) motive, if any, for giving the transaction a be nami
colour;
(4) the position of the parties and the relationship, if any ,
between the claimant and the alleged benamidar;
(5) the custody of the title deeds after the sale; and
(6) the conduct of the parties concerned in dealing with
the property after the sale. (Jaydayal Poddar v. Bibi Hazra
[(1974) 1 SCC 3] , SCC p. 7, para 6)
14. The above indicia are not exhaustive and their efficacy
varies according to the facts of each case. Neverthel ess,
the source from where the purchase money came and the
motive why the property was purchased benami are by far
the most important tests for determining whether the sale
standing in the name of one person, is in reality f or the
benefit of another. We would examine the present
transaction on the touchstone of the above two indicia.
*** *** ***
18. It is well settled that intention of the partie s is the
essence of the benami transaction and the money must have
been provided by the party invoking the doctrine of benami.
The evidence shows clearly that the original plaintiff did
not have any justification for purchasing the prope rty in
the name of Ramayee Ammal. The reason given by him is
not at all acceptable. The source of money is not a t all
traceable to the plaintiff. No person named in the plaint
or anyone else was examined as a witness. The failure of
95
the plaintiff to examine the relevant witnesses complet ely
demolishes his case.””
22. As a matter of law, the principle that one who alleges that a
property is benami and is held, nominally, on behalf of the real owner -
in cases which form the exception, under Section 4 (3) – has to displace
the initial burden of proving that fact. Such proof can be through evidence,
or cumulatively through circumstances. This fact was brought home, by
this court, in Marcel Martins v. M. Printer 11. In that case, the issue
was whether the transfer of rights in favour of one of the siblings, in the
absence of a will, by the person having interest (as a t enant in the
property), after her death, operated to exclude the other heirs. The court
held that the transfer was made to fulfil a municipality’s requirement,
and the property was held by the one in whose name it was mutated, in
a fiduciary capacity, under Section 4(3)(a) of the Act, on behal f of the
siblings:
“22. It is manifest that while the expression “fidu ciary
capacity” may not be capable of a precise definitio n, it
implies a relationship that is analogous to the relationship
between a trustee and the beneficiaries of the trus t. The
expression is in fact wider in its import for it extends to all
such situations as place the parties in positions th at are
founded on confidence and trust on the one part and good
faith on the other.
23. In determining whether a relationship is based on trus t
or confidence, relevant to determining whether they stan d
in a fiduciary capacity, the Court shall have to take into
consideration the factual context in which the ques tion
arises for it is only in the factual backdrop that the existence
or otherwise of a fiduciary relationship can be deduced in
a given case. Having said that, let us turn to the f acts of
the present case once more to determine whether the
appellant stood in a fiduciary capacity vis-à-vis t he
plaintiffs-respondents.
24. The first and foremost of the circumstance relevant t o
the question at hand is the fact that the property in question
was tenanted by Smt. Stella Martins-mother of the partie s
11 (2012) 5 SCC 342
PUSHPALATA v. VIJAY KUMAR (DEAD) THR. LRS. & ORS.
[S. RAVINDRA BHAT, J.]
before us. It is common ground that at the time of her demise
she had not left behind any Will nor is there any o ther
material to suggest that she intended that the tenancy right
held by her in the suit property should be transferred to
the appellant to the exclusion of her husband, C.F. Martins
or her daughters, respondents in this appeal, or both . In
the ordinary course, upon the demise of the tenant, the
tenancy rights should have as a matter of course devolved
upon her legal heirs that would include the husband of
the deceased and her children (parties to this appeal). Even
so, the reason why the property was transferred in the name
of the appellant was the fact that the Corporation desired
such transfer to be made in the name of one individ ual
rather than several individuals who may have succee ded
to the tenancy rights. A specific averment to that effect
was made by plaintiffs-respondents in para 7 of the plaint
which was not disputed by the appellant in the writ ten
statement filed by him. It is, therefore, reasonable to assume
that transfer of rights in favour of the appellant w as not
because the others had abandoned their rights but because
the Corporation required the transfer to be in favo ur of
individual presumably to avoid procedural complicatio ns
in enforcing rights and duties qua in property at a later
stage. It is on that touchstone equally reasonable to assume
that the other legal representatives of the deceased-tenant
neither gave up their tenancy rights in the propert y nor
did they give up the benefits that would flow to the m as
legal heirs of the deceased tenant consequent upon the
decision of the Corporation to sell the property to the
occupants. That conclusion gets strengthened by the f act
that the parties had made contributions towards the s ale
consideration paid for the acquisition of the suit property
which they would not have done if the intention was to
concede the property in favour of the appellant.
Superadded to the above is the fact that the parties we re
closely related to each other which too lends considerable
support to the case of the plaintiffs that the defe ndant-
appellant held the tenancy rights and the ostensible title
to the suit property in a fiduciary capacity vis-à- vis his
97
siblings who had by reason of their contribution and t he
contribution made by their father continued to evin ce
interest in the property and its ownership. Reposin g
confidence and faith in the appellant was in the facts and
circumstances of the case not unusual or unnatural
especially when possession over the suit property continued
to be enjoyed by the plaintiffs who would in law and on a
parity of reasoning be deemed to be holding the same for
the benefit of the appellant as much as the appellant was
holding the title to the property for the benefit o f the
plaintiffs.
25. The cumulative effect of the above circumstances when
seen in the light of the substantial amount paid by late
Shri C.F. Martins, the father of the parties, thus put s the
appellant in a fiduciary capacity vis-à-vis the sai d four
persons. Such being the case the transaction is completely
saved from the mischief of Section 4 of the Act by r eason
of the same falling under Sub-section 3(b) of Secti on 4.
The suit filed by the respondents was not, therefore, barre d
by the Act as contended by the learned counsel for the
appellant.”
23. In the present case, the analysis of evidence and pleadings, on
the record would show that the first plaintiff, Laxmi Prasad, had averred
that the properties were purchased for the maintenance and education
of his children; that he had constructed a two storied building at a cost
of 7,00,000/- from his earnings as a contractor, and that he w as in
possession of the property. He also positively averred that the two sons
(i.e., ostensible owners) were minors, with no source of income at the
time of purchase. The first defendant (Vijay Kumar) no doubt generally
denied these allegations. However, he did not deny that he was a minor
at the time of purchase of the properties; he set up no additional plea of
any source of income, or that someone had lent the money to fu nd the
purchase of the property. The second defendant (Rajendra Kumar),
admitted to plaint allegations, and even deposed in favour of his father.
He alleged that the first defendant was unemployed and had a ssaulted
his father.
24. The plaintiff Laxman Prasad examined himself and deposed
to having bought the property in the name of his sons, and that he remained
`
PUSHPALATA v. VIJAY KUMAR (DEAD) THR. LRS. & ORS.
[S. RAVINDRA BHAT, J.]
in possession throughout. He also said that the suit property was let out
by him - which was supported by an independent witness, who remained
unshaken during cross- examination, and said that he took the property
on rent of 40 per month, in 1972 and that the rent was paid to Laxman
Prasad.
25. The first defendant, and those claiming through h im, as
subsequent purchasers, did not lead any evidence to show that the first
defendant had the means or any source of income, to purchase the
property, quite apart from the fact that he was a dependen t of Laxmi
Prasad, and minor at the time of acquisition of the properties.
Furthermore, the first defendant also made inconsistent pleas- apart from
asserting that he was owner of the property he alleged to have perfected
title, through adverse possession, a plea which he did not support during
the evidence. This was fatal to his case: further, the writ ten statement
was bereft of any details as regards the date from when he claimed
hostile possession, against his father.
26. In the light of these factors, and the law declared by this court
which has elaborated the circumstances under which a claim agai nst a
benami owner can be said to be proved, under Section 4(3)(a) of the
Act, the conclusions drawn by the trial court and first appell ate court,
are plainly erroneous, given the evidence on record. The High Court, in
the opinion of this court, fell into error in not noticing the correct position
in law.
27. As far as the discretionary nature of this court’s jurisdiction,
under Article 136 goes, the respondents are correct in highlighting that
the court would rarely interfere with concurrent findings. However, the
jurisdiction, it has been reiterated is wide, and in exceptiona l cases,
interference is called for. In Collector Singh v. L.M.L. Ltd12 it was held
that:
“9. Jurisdiction under Article 136 of the Constitut ion is
extraordinary and interference with the concurrent findings
of fact recorded by the courts below is permissible only in
exceptional cases and not as a matter of course. Wh ere
the appreciation of evidence is found to be wholly
unsatisfactory or the conclusion drawn from the same is
perverse in nature, in exercise of the jurisdiction under
12 (2015) 2 SCC 410
`
99
Article 136 of the Constitution, this Court may inter fere
with the concurrent findings for doing complete justice in
the case. In the facts and circumstances of the case, in our
view, it is a fit case to exercise the jurisdiction unde r Article
136 of the Constitution to interfere with the conclusion o f
the Labour Court upholding the punishment of dismissal
as affirmed by the High Court.”
28. Likewise, in Nizam v. State of Rajasthan 13 the court held
that:
“20. Normally, this Court will not interfere in the exercise
of its powers under Article 136 of the Constitution of India
with the concurrent findings recorded by the courts below.
But where material aspects have not been taken into
consideration and where the findings of the Court a re
unsupportable from the evidence on record resulting in
miscarriage of justice, this Court will certainly interf ere.”
29. In the opinion of this court, the High Court fell into error, in
ignoring that the circumstances of this case, where the first plaintiff had
proved that the properties had been purchased, with his funds, and the
sons were minors, with no source of income. The second defendant ’s
position- throughout all the proceedings, was that the proper ties were
that of the first plaintiff; in other words, he admitted to the suit averments.
The plaintiff also proved that he had possession of the property, by adducing
positive evidence of tenants, who paid rent to him. In these circumstances,
the elements necessary to establish benami ownership within the meaning
of Section 4 (3) (a) of the Act, in terms of the judgments i n Binapani
Paul and Valliammal (supra) have been satisfied by the first plaintiff.
30. For the foregoing reasons, the appeal is allowed. The suit i s
consequently decreed fully. In the circumstances there shall be no order
on costs.
13 (2016) 1 SCC 550
Divya Pandey and Anurag Bhaskar Appeal allowed.
(Assisted by : Adnan Khan, LCRA)
PUSHPALATA v. VIJAY KUMAR (DEAD) THR. LRS. & ORS.
[S. RAVINDRA BHAT, J.]