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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 8609-8610 OF 2009

Om Prakash Sharma @ O.P. Joshi ...Appellant (s)

Versus

Rajendra Prasad Shewda & Ors. ... Respondent(s)

J U D G M E N T

RANJAN GOGOI, J.

1. The suit property comprises of land and building

covered by holding No. L-395 on the Thana Lane within the

Purulia Municipality, District Purulia, West Bengal.

2. The following genealogical table may be set out for ready

reference and clarity of the facts that will be required to be

noticed.

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Jagannath Joshi = Moni Debi

(Died October 1953) (Died August 1963)

____________________________

│ │

Brijlal Shewda = Gomati Debi Sitaram Joshi=Kishori Debi Joshi

(Daughter) (adopted son-1942) (Original plaintiff)

(Died 1967) (Died 1946) (Married to Sitaram in 1945)

(Since deceased)

│ │

Rajendra Pd. Shewda Om Prakash Sharma @ Joshi

(allegedly adopted son) (adopted son)

(Respondent No.1) (Petitioner No.1)

3.According to the original plaintiff, Kishori Debi Joshi,

(since deceased), the suit property was purchased by

Jagannath Joshi with his funds in the name of his wife Moni

Debi. Moni Debi, according to the plaintiff, was the name

lender though in the Municipal and Land Revenue records the

name of Moni Debi was entered as the owner of the suit

property. The said entries were a mere pretence. The plaintiff

further pleaded that she is the wife of one Sitaram Joshi who

was adopted by Jagannath Joshi and Moni Debi in the year

1942. After the marriage of Sitaram Joshi and the deceased

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plaintiff Kishori Debi Joshi in the year 1945, Sitaram Joshi

died a few months later. According to the plaintiff, Jagannath

Joshi the owner of the suit property died in the year 1953 and

on his death, one half of the suit property devolved on his wife

Moni Debi and the remaining half on the deceased plaintiff as

the widow of the predeceased son. The plaintiff further pleaded

that Moni Debi died in the year 1963 and on her death her

half share in the suit property devolved on her daughter

Gomati Debi. On the death of Gomati Debi in the year 1967

her half share in the property devolved on the

original/deceased plaintiff Kishori Debi Joshi. Accordingly,

the plaintiff became the absolute owner of the entire suit

property. In this regard, the plaintiff further pleaded that

respondent No.1 Rajendra Prasad Shewda who claimed to be

the adopted son of Gomati Debi had no basis to make any

such claim as no such adoption took place.

4.The defendant, in the written statement filed, disputed

the claim of the plaintiff and asserted that though the suit

property was purchased with the funds of Jagannath Joshi the

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said purchase was made for the benefit of Moni Debi in order

to provide her with the necessary security in life as at that

point of time a Hindu widow was not entitled to full ownership

of property owned by a Hindu male following his death. The

defendant also disputed the claim of the original plaintiff that

Sitaram Joshi was the adopted son of Jagannath and Moni

Debi and in this regard had asserted that there was no valid

adoption, as claimed. According to the defendant on the death

of Moni Debi in August 1963 the entire property devolved on

her daughter Gomati Debi and upon the death of Gomati Debi

the property devolved on the defendant No.1 Rajendra Prasad

Shewda who was the adopted son of Gomati Debi. In this

regard the defendant had also pleaded that a gift deed was

executed by Gomati Debi during her life time in favour of her

adopted son i.e. defendant No.1.

5.The learned trial court, on the evidence adduced before

it, took the view that the property belonged to Jagannath and

that the adoption of Sitaram Joshi, predeceased husband of

the original plaintiff, was legal and valid. The learned trial

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court, therefore, held that on the death of Jagannath Joshi in

1953 the suit property devolved in equal proportions on Moni

Debi and the original plaintiff who was the widow of the

predeceased son. Thereafter, according to the learned trial

court, on the death of Moni Debi her half share in the property

devolved on Gomati Debi. The trial court further held that on

the death of Gomati Debi in the year 1967 her half share in

the property devolved on her adopted son defendant No.1.

Accordingly, the plaintiff as well as respondent No.1 were held

to be entitled to equal shares in the suit property.

6.The defendant No.1 appealed against the said order to

the High Court. The original plaintiff filed cross objections

against the part of the decree which according to her denied

her full share in the suit property. During the pendency of the

appeal, the original plaintiff Kishori Debi Joshi died and she

was substituted by her adopted son Om Prakash Sharma who

is the appellant before us.

7.The High Court, on an exhaustive consideration of the

issues arising for consideration and the facts and materials on

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record, by the impugned judgment and order dated 4.11.2008,

came to the conclusion that the purchase of the property by

Jagannath was not a benami purchase and that Moni Debi for

whose benefit the property was purchased was the real owner

thereof. The High Court further held that the adoption of

Sitaram Joshi was not proved and therefore on the death of

Moni Debi in 1963 the entire suit property had devolved on

her daughter Gomati Debi. The High Court did not consider it

necessary to go into the issue of validity of the adoption of the

defendant No.1 Rajendra Prasad Shewda or the legality of the

gift deed executed in his favour by Gomati Debi inasmuch as

on the death of Gomati Debi in the year 1967 the original

plaintiff had no subsisting right to the property. In this regard

it must be noticed that the said finding was recorded by the

High Court on the basis that though the husband of the

original plaintiff Sitaram Joshi was not the adopted son of

Jagannath Joshi, the said Sitaram Joshi was the nephew of

Jagannath (brother’s son) and as the wife of the nephew of

Jagannath the original plaintiff did not come within the arena

of consideration of being a heir legally entitled to succeed to

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the property of Moni Debi. This was so found as there were

other legal heirs who had a better/preferential right.

Accordingly the appeal filed by the defendant No. 1 was

allowed and the cross-objections filed by the plaintiff were

dismissed. Aggrieved the present appeals have been filed by

the plaintiff.

8.Three questions, delineated below, arise for

consideration in the present appeals -

1) Did the suit property belong to Jagannath Joshi or

his wife Moni Debi?

2) Whether Sitaram Joshi was the legally adopted son

of Jagannath Joshi and Moni Debi.?

3)Whether defendant No.1 Rajendra Prasad Shewda

was the legally adopted son of Gomati Debi and

whether the gift deed executed by Gomati Debi in

favour of defendant No.1 was legal and valid?

9.We have heard Shri Pranab Kumar Mullick, learned

counsel for the appellant and Shri M.N. Krishnamani, learned

senior counsel for the respondents.

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10.The purchase of property by a husband in the name of

his wife is a specie of Benami purchase that had been

prevalent in India since ancient times. Such a practice

appears to have been prevalent on account of the position of

Hindu women to succession until the enactment of the Hindu

Succession Act and the amendments made thereto from time

to time. In a situation where a Hindu widow had a limited

right to the estate of the deceased husband under the Hindu

Women’s Right to Property Act, 1937, the purchase of

immovable property by a husband in the name of the wife in

order to provide the wife with a secured life in the event of the

death of the husband was an acknowledged and accepted

feature of Indian life which even finds recognition in the

explanation clause to Section 3 of the Benami Transactions

(Prohibition) Act, 1988. This is a fundamental feature that

must be kept in mind while determining the nature of a

sale/purchase transaction of immoveable property by a

husband in the name of his wife along with other facts and

circumstances which has to be taken into account in

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determining what essentially is a question of fact, namely,

whether the property has been purchased Benami. The “other”

relevant circumstances that should go into the process of

determination of the nature of transaction can be found in

Jaydayal Poddar (Deceased) through L. Rs. & Anr. vs.

Mst. Bibi Hazra & Ors.

1

which may be usefully extracted

below :-

“6. It is well settled that the burden of proving

that a particular sale is benami and the apparent

purchaser is not the real owner, always rests on the

person asserting it to be so. This burden has to be

strictly discharged by adducing legal evidence of a

definite character which would either directly prove

the fact of benami or establish circumstances

unerringly and reasonably raising an inference of

that fact. The essence of a benami is the intention of

the party or parties concerned; and not unoften,

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 acceptance of

mere conjectures or surmises, as a substitute for

proof. The reason is that a deed is a solemn

document prepared and executed after considerable

deliberation, and the person expressly shown as the

purchaser or transferee in the deed, starts with the

initial presumption in his favour that the apparent

state of affairs is the real state of affairs. Though the

question, whether a particular sale is benami or not,

is largely one of fact, and for determining this

1

AIR 1974 SC 171 para 6

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question, no absolute formulae or acid test,

uniformly applicable in all situations, 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 from which the purchase money came; ( 2)

the nature and possession of the property, after the

purchase; (3) motive, if any, for giving the

transaction a benami colour; (4) the position of the

parties and the relationship, it 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.

The above indicia are not exhaustive and their

efficacy varies according to the facts of each case.

Nevertheless No. 1 viz. 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” (Emphasis is ours)

11.The reiteration of the aforesaid principles has been made

in Binapani Paul vs. Pratima Ghosh & Ors .

2

. The relevant

part of the views expressed (Paras 26 and 27) may be

profitably recollected at this stage.

“26. The learned counsel for both the parties have

relied on a decision of this Court in Thakur Bhim

Singh v. Thakur Kan Singh wherein it has been held

that the true character of a transaction is governed

by the intention of the person who contributed the

2

2007 (6) SCC 100

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purchase money and the question as to what his

intention was, has to be decided by:

(a) surrounding circumstances,

(b) relationship of the parties,

(c) motives governing their action in bringing about

the transaction, and

(d) their subsequent conduct.

27. All the four factors stated may have to be

considered cumulatively. The relationship between

the parties was husband and wife. Primary motive

of the transaction was security for the wife and

seven minor daughters as they were not protected

by the law as then prevailing. The legal position

obtaining at the relevant time may be considered to

be a relevant factor for proving peculiar

circumstances existing and the conduct of Dr.

Ghosh which is demonstrated by his having signed

the registered power of attorney.”

12.Applying the aforesaid principles to the facts of the

present case we find that the High Court was perfectly justified

in coming to the conclusion that the property though

purchased from the funds of Jagannath was really for the

benefit of his widow Moni Debi and therefore Moni Debi was

the real owner of the property. In this regard the entries of the

name of Moni Debi in Municipal and Land Revenue records;

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the fact that the brothers of Jagannath were no longer alive

(according to the plaintiff the property was purchased by

Jagannath in the name of his wife to protect the same from his

brothers) are relevant facts that have been rightly taken into

account by the High Court. The fact that the property was

managed by Jagannath which fact accords with the practice

prevailing in a Hindu family where the husband normally

looks after and manages the property of the wife, is another

relevant circumstance that was taken note of by the High

Court to come to the conclusion that all the said established

facts are wholly consistent with the ownership of the property

by Moni Debi. In fact the aforesaid view taken by the High

Court finds adequate support from the views expressed by this

Court in Kanakarathanammal vs. S.Loganatha Mudaliar

& Anr.

3

the relevant part of which is extracted below :

“It is true that the actual management of the

property was done by the appellant's father; but

that would inevitably be so having regard to the fact

that in ordinary Hindu families, the property

belonging exclusively to a female member would

also be normally managed by the Manager of the

family; so that the fact that appellant's mother did

not take actual part in the management of the

3

AIR 1965 SC 271

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property would not materially affect the appellant's

case that the property belonged to her mother. The

rent was paid by the tenants and accepted by the

appellant's father; but that, again, would be

consistent with what ordinarily happens in such

matters in an undivided Hindu family. If the

property belongs to the wife and the husband

manages the property on her behalf, it would be idle

to contend that the management by the husband of

the properties is inconsistent with the title of his

wife to the said properties. What we have said about

the management of the properties would be equally

true about the actual possession of the properties,

because even if the wife was the owner of the

properties, possession may continue with the

husband as a matter of convenience. We are

satisfied that the High Court did not correctly

appreciate the effect of the several admissions made

by the appellant's father in respect of the title of his

wife to the property in question. Therefore, we hold

that the property had been purchased by the

appellant's mother in her own name though the

consideration which was paid by her for the said

transaction had been received by her from her

husband.” (Underlining is ours)

13.On the basis of the above, we have no reason to disagree

with the conclusion of the High Court that the property was

owned by Moni Debi although consideration money for the

same may have been made available by her husband,

Jagannath.

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14.The next question to be decided is the legality/validity of

the adoption of Sitaram, the husband of the original plaintiff,

as claimed by the plaintiff in the suit. This Court, almost over

5 decades back, had sounded a note of caution to be followed

by courts while deciding a claim of adoption in the following

terms :

“As an adoption results in changing the course

of succession, depriving wives and daughters of

their rights and transferring properties to

comparative strangers or more remote relations it is

necessary that the evidence to support it should be

such that it is free from all suspicion of fraud and

so consistent and probable as to leave no occasion

for doubting its truth.”

4

15.Reiterating the above view in Rahasa Pandiani by L.

Rs. & Ors. vs. Gokulananda Panda & Ors.

5

, this Court

went on to further dilate on the matter in the following terms :

“When the plaintiff relies on oral evidence in

support of the claim that he was adopted by the

adoptive father in accordance with the Hindu rites,

and it is not supported by any registered document

to establish that such an adoption had really and as

a matter of fact taken place, the court has to act

with a great deal of caution and circumspection. Be

it realized that setting up a spurious adoption is not

less frequent than concocting a spurious will, and

4

AIR 1959 SC 504 [Kishori Lal Vs. Mst. Chaltibai]

5

AIR 1987 SC 962

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equally, if not more difficult to unmask. And the

court has to be extremely alert and vigilant to guard

against being ensnared by schemers who indulge in

unscrupulous practices out of their lust for

property. If there are any suspicious circumstances,

just as the propounder of the will is obliged to dispel

the cloud of suspicion, the burden is on one who

claims to have been adopted to dispel the same

beyond reasonable doubt. In the case of an adoption

which is not supported by a registered document or

any other evidence of a clinching nature if there

exist suspicious circumstances, the same must be

explained to the satisfaction of the conscience of the

court by the party contending that there was such

an adoption. Such is the position as an adoption

would divert the normal and natural course of

succession. Experience of life shows that just as

there have been spurious claims about execution of

a will, there have been spurious claims about

adoption having taken place. And the court has

therefore to be aware of the risk involved in

upholding the claim of adoption if there are

circumstances which arouse the suspicion of the

court and the conscience of the court is not satisfied

that the evidence preferred to support such an

adoption is beyond reproach.”

16.It is keeping in mind the above principles that we will

have to proceed in the present matter.

17.The plaintiff herself alongwith one Rukmini Joshi (PW 2)

are the witnesses who have testified in support of the claim of

adoption of Sitaram by Jagannath. The testimony of the

aforesaid two witnesses are sought to be corroborated by the

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statements of three other persons (since deceased) who had

deposed on the subject in another suit being R.S.

No.206/1967 filed by defendant No.1 against one of the

tenants in occupation of a part of the suit property. The

aforesaid three witnesses i.e. Neth Ram Khedia, Sib Prasad

Rajgoria and Sadayee Devi have deposed in the aforesaid suit

that Sitaram had been adopted by Jagannath.

18.Besides the above evidence there is a letter dated

20.7.1945 written on the letterhead of M/s. Bisandayal

Ramjiwan (Exb.2) by one Jagannath Sitaram. It is urged on

behalf of the plaintiff that the said letter sent from Purulia

shows that Sitaram was the adopted son of Jagannath as the

sender of the letter has been described as Jagannath Sitaram.

19.A consideration of the evidence of PW-2 Rukmini Joshi as

a whole leaves us satisfied that in view of certain inherent

inconsistencies therein the testimony of the said witness is not

worthy of acceptance. Specifically, PW-2 though had stated

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that the adoption of Sitaram took place 40 years back she

could not recollect her own age; she had no recollection of

number of years prior to the adoption when she got married

and was unable to recall when her sons got married and most

surprisingly the age of her elder son at the time of his

marriage; the present age of the elder son or even the present

calendar year. The evidence of the three witnesses examined in

R.S. No. 206/1967 (Ext. 17, 17A and 17C) would be

inadmissible under Section 32(5) & (6) of the Evidence Act

inasmuch as on the date when the said evidence was recorded

the controversy with regard to the adoption of Sitaram had

already occurred. The aforesaid question i.e. admissibility of

the evidence in question would stand concluded by views

expressed by this Court in Kalindindi Venkata Subbaraju

& Ors. Vs. Chintalapati Subbaraju & Ors.

6

wherein in Para

12 (quoted below), it has been clearly laid down that, “in order

to be admissible the statement relied on must be made ante

litem motam by persons who are dead i.e. before the

commencement of any controversy actual or legal upon the

6

AIR 1968 SC 947

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same point.” In the same backdrop the principle of ante litem

motam as stated in Halsbury’s Laws of England, 3

rd

Edn.

Vol.15 p.308 has also been noticed.

“12. As regards the written statement of

Surayamma the position of her declaration therein

is somewhat different. Both sub-sections 5 and 6 of

Section 32, as aforesaid, declare that in order to be

admissible the statement relied on must be made

ante litem motam by persons who are dead i.e.

before the commencement of any controversy actual

or legal upon the same point. The words “before the

question in issue was raised” do not necessarily

mean before it was raised in the particular litigation

in which such a statement is sought to be adduced

in evidence. The principle on which this restriction

is based is succinctly stated in Halsbury's Laws of

England, 3rd Ed. Vol. 15, p. 308 in these words:

“To obviate bias the declarations are required

to have been made ante litem motam which means

not merely before the commencement of legal

proceedings but before even the existence of any

actual controversy concerning the subject-matter of

the declarations”.

20.The letter dated 20.7.1945 (Exb.2) does not lead to any

clear/firm conclusion with regard to the adoption of Sitaram

and had been rightly discarded by the High Court. In the

above conspectus of facts the evidence of the plaintiff

regarding the adoption of her husband stands isolated and

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cannot, on its own, sustain a positive conclusion that her

husband Sitaram was adopted by Jagannath. If the suit

property was owned by Moni Debi and not by Jagannath and

Sitaram was not the adopted son of Moni Debi and Jagannath

it must be held that the suit property devolved on Gomati on

the death of Moni Debi. The claim of the defendant No.1 to be

the adopted son of Gomati could have been challenged only by

such legal heirs on whom the property would have devolved

following the death of Gomati in the event the adoption of the

defendant No. 1 is to be held to be invalid. In this context, the

next legal heir who would have been entitled to succeed to the

property of Gomati Debi if the adoption of defendant No.1 is to

be treated as invalid would not be the original plaintiff

inasmuch there was another heir who could have claimed a

better title in such a situation, namely, one Chouthamal

Sharma, the son of one of the brother’s of Sitaram. No such

challenge was made by the aforesaid legal heir who had a

better/preferential claim.

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21.In view of the above position demonstrated by the

evidence on record the High Court was fully justified in not

entering into the issue of validity of the adoption of defendant

No.1 or the gift deed executed in his favour by Gomati as the

said issues had become redundant/inconsequential for the

reasons noted above.

22.For all the aforesaid reasons and in the light of what has

been found and stated as above, we have to hold that these

appeals are without any merit. Accordingly, the order of the

High Court is affirmed and the present appeals are dismissed.

However, there will be no order as to costs.

..……..……......................J.

(RANJAN GOGOI)

….……..…….....................J.

(N.V. RAMANA)

NEW DELHI

OCTOBER 9, 2015.