JAYDAYAL PODDAR (DECEASED) THROUGH HIS LRS AND ANOTHER versus MST. BIBI HAZRA AND ORS.

Citation: [1974] 2 S.C.R. 90 · Decided: 19-10-1973 · Supreme Court of India · Bench: V.R. KRISHNA IYER · Disposal: Dismissed

Cited by 4 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

90 
JAYDAYAL PODDAR (DECEASED) THROUGH HIS L.RS AND 
A 
ANOTHER 
v. 
MST. BIBI HAZRA AND ORS. 
October 19, 1973 
[V, R. KRISHNA IYER AND R. S. SARKAR!A, JJ.] 
8enami Transaction-Burden of proving that a particulur transaction U 
benami /lies on the verson who asserts it-This burden has to be discharged by 
definite uroof--Essence of benami is the intention of parties-Circumstances to 
be takl!tJ into con.~ideration for determinin11 whether a transaction is benami Dr 
real-Source of purchase money if the most iniportant test. 
8 
The burden of proving tftat a particular sale is benaml and the apparent pur· 
C 
chaser is not the real owner, always rests on the person asserting it to be 110. 
This burden has to be strictly discharged by adducing legal evidence of a deft.. 
nite character which would either directly prove the fact of Benami or establish 
Circumstances unerringly raising an inference of that fact. 
The essence of a 
benqmi is the intention of the party or parties concerned; and not unoften1 such 
intention is shrouded in a thick veil which cannot be easily pierced through. But 
Such difficulties do not relieve the person asserting the transaction to be benami, 
of' any part of the serious onus that rests on him; nor justify the ncceptunee of 
D 
'mere conjectures or surmises, as a substitute for proof. Though the question, 
whether a particular sale is Benami or not, is largely one of fact, and for deter• 
mining this question, no absolute.formulae or acid tests, uniformally applicable 
in ·all situations, can be laid down; yet in weighing the probabilities· and for 
aathering .the relevant indicia, the Courts are usually guided by these circum-
stances : ( 1) the source from which the purchase money came; (2) the nature 
and possession of the property, after the purchasej (3) motive, if any, for giving 
the transaction a benami colour; ( 4) the position of the parties and the relation-
ship if any, between the claimant and the alleged benamidar; (S) the custody 
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of th: title-deeds after the sale and (6) the conduct of the parties concerned In 
dealing with the property after the sale. 
These indicia are not exhaustive and th~ir efficacy varirs according to the 
facts of each case. 
Nevertheless the source whence the purchase money came, is 
by far, the most important test for determining whether the sale standing in the 
name of one person, is in reality for the benefit of another. 
[91H-92EJ 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1759 of 1967. 
F 
From the· judgment and Decree dated the 31st October, 1962 of 
the Patna High Court in First Appeal No. 619 of 1958. 
V. S. [)esai and R. C. Pra, for the appellant. 
L. M. Singhvi, U.P. Singh and A. T. Patra, for respondent No. 1. 
The Judgment of the Court was delivered by 
SARKARIA, J.-This appeal by certificate is directed against the ap-
pellate judgment and decree, dated the 31st October, 1962, of the High 
Court of Judicature at Patna. 
The plaintiffs-appellants 
instituted a suit on 30-6-1956, in the 
Court of Subordinate Judge, Samastipur for a declaration Of title 
and possession in resi;>ect o.f a pucca house in Plot No. 216, Ward m 
of Samastipur Municipality. It was alleged that Abdul Karim (Def, 
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H 
A 
B 
c 
D 
E 
F 
H 
JAYDAYAL (Dead) v. BIBI HAZRA (Sarkaria, J.) 
91 
No. 1) had out of his own funds purchased this house in the name of' 
his wife Mst. Hakimunnissa by a registered sale-deed dated 10-5-1941, 
from one Abdul Motilib. After the purchase, Defendant No.1, wh<> 
was in possession of tbe house, executed two mortgage deeds, dated 
6-1-1948 and 28-7-1948, in favour of his son-in-law, Abdul Latif 
(Defendent No. 3), husband of Mst. Bibi Hazra (Defendant No. 2). 
Abdulkarim (Defendant No. 1), in order to clear the mortgage dues and. 
for meeting other necessities, agreed to sell the house to Plaintiff No. 1 
for a consideration of Rs. 20,000/-. 
Pursuant to this agreement of 
sale, Plaintiff No; 1 paid a sum of Rs. 10,209-4-0, by instalments to 
Defendant No. 1. 
Another sum of Rs. 2,990-12-0 was left with Plain-
tiff No. 2, for payment of the mortgage debts of Defendant No. 3, 
Rs. 6,800/-, the balance of the price, was paid in cash to the vendor at 
the time of the registration of the sale-deed on 25-5-1951. 
Thereafter 
Plaintiff No. 2 got this house mutuated in the Municipal records in her 
favour. 
Despite the sale, defendants Nos. 1 to 3, acting in collusion, 
continued to be illegal possession of the house. 
Defendant No

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