D.K.Seth, J. - (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. 1.1. The defendants No. 1, 2 and 4 had contested the suit by filing a joint written statement. According to them, the defendant No. 1 mother purchased the property out of her stridhan. The father of the defendant No. 1 had contributed funds to her. She had obtained advance from the tenants. She also secured money by selling her share in some property. A suit for eviction was filed by the defendant No. 1 against the plaintiff. The present suit was a counter-blast thereto. 1.2. The plaintiff examined himself and three other witnesses. The defendant examined herself alone. The learned trial Judge after having considered the evidence had decreed the suit ex-parte against the defendant No. 3 and on contest against other defendants declaring 1/5th share of the plaintiff and each of the parties in the suit property. The case and the evidence:
(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. 2.1. The plaintiff had sought to prove that the father had a business from which he had substantial income. The father used to pay sales tax. But the payment of sales tax has not been proved. The exhibits through which payment of sales tax by the firm of which the father of the plaintiff was a partner, however, was admitted by the defendant No. 1. But the same does not seem to have been proved by the evidence of the officer (PW 4) of the Sales Tax Department. The exhibits do not disclose that the partnership firm of the father of the plaintiff was registered dealer or that sales tax was paid by him. The extent of the business and construction of the house was sought to be proved by the plaintiff through the evidence of PW 2 and PW 3. One had claimed himself to be the son of the partner of the father of the plaintiff and the other the son of the contractor, who alleged to have constructed the house. Admittedly, the PW 1, plaintiff, was born on 2nd of September, 1944. He admitted to be a school student in 1958 and as such he had no personal knowledge about the family affairs. Therefore, his evidence cannot have much importance unless supported by other evidences. PW 2 admitted that the firm was established by his father but it was not known to him whether Sridam Bhar (father of the plaintiff) engaged the firm for the construction of the building or Sridam Bhar used to visit the firm when the witness's father was alive. He had no independent knowledge about the contract given by Sridam for construction of the house. Receipts were issued in the name of Smt. Usha Bhar showing payment of construction. However, he wanted to assert that the payments were made by Sridam, though the receipts were issued in the name of the defendant No. 1. The construction was complete in 1943. However, in cross-examination, he admitted that the firm was constituted into a partnership in 1967 and that in the society female members do not come out. He also admitted that it was not possible for him to ascertain wherefrom the money came or whether the money was actually paid by Sridam or the defendant No. 1. However, the file could not be traced. Therefore, relying on this evidence, it is very difficult to prove the case of the plaintiff. The PW 3 was 56 years in 1992. Therefore, it is not possible to state anything in respect of the period up to 1954 when he would be of 18 years. He admitted that the said business continued till 1954-55 when he was a minor. His evidence is simply his personal opinion. Therefore, the evidence of this witness also does not help much in establishing the case of the plaintiff. Benami transaction : The principle:
(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:- (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, 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. 3.1. We may cite Jaydayal Poddar v. Mst. Bibi Hazra & Ors., AIR 1974 SC 171; Amit Mukherjee v. Smt. Bibhabati Dasi, AIR 1979 Cal 344 and Krishnanand Agnihotri v. State of Madhya Pradesh, AIR 1977 SC 796 (1977)1 SCC 816 for the above proposition. 3.2. Mt. Bilas Kunwar v. Desraj Ranjit Singh & Ors., AIR 1915 PC 96, the Privy Council had laid down that where a purchase is made in the name of wife, the natural inference is that the purchase is a benami transaction; a dealing common to Hindus and Mohammadans alike. It has a curious resemblance to the doctrine of English law that the trust of the legal estate results to the man who pays the purchase money, and this again follows the analogy of Common Law, that where a feoffment is made without consideration the use results to the feoffer. The exception in English law by way of advancement in favour of wife or child does not apply in India, but the relationship is a circumstance which is taken into consideration in India in determining whether the transaction is benami or not. The criterion in these cases in India is to consider from what source the money comes with which the purchase money is paid. In this case the decisions in Dhurm Das Pandey v. Mt. Shama Soondari Dibiah, 3 MIA 229 and Gopeekrist Gosain v. Gungapersand Gosain, 6 MIA 53 referred to. 3.3. The observation by the Privy Council has to be tested in the light of the principle as settled by the Supreme Court. All purchases in the name of the wife are not benami. It is only those purchases, which would satisfy the tests laid down above can be treated as benami. 3.4. In the absence of any evidence as to who supplied the consideration money, it cannot be presumed that the consideration money was advanced by the husband. The party asserting has to affirmatively prove that the transaction was not real, (Jawahar v. Askara, 22 CalLJ 27; Mr. Perayya v. P. Venkaryamma, AIR 1924 Mad 770; Gobind Ram v. Sanhai, 12 Bom 270; Nauhi Jan v. Bhuri, 30 All 321 : 5 ALJ 601). In Hindu law, there is no presumption that the transaction standing in the name of the wife is the husband's transaction. There is no presumption one-way or the other, (Chowdrani v. Tarni, 8 Cal 545; Manada Sundari Debi v. Mahananda Sarnakar, 2 CalWN 367; Bengal Coal Co. v. Sitaram Chatterjee, AIR 1935 Cal 666). In the case of property purchased and standing in the name of a Hindu woman when there is no suggestion that the husband of the woman had any creditor, but, on the other hand, there was positive evidence that the woman herself had some means of her own, the onus of proving that it has been purchased with the funds of the husband benami in her name is, in the firs instance, on the person pleading the same. Mere suspicion that the money of the husband might have been utilised for the purchase will not suffice to establish that the purchase was benami. Even in case where there is no positive evidence that the money was contributed by the husband and not the wife, this will not conclude the matter as to his benami, though that is an important criterion (Sitamma v. Sitapati Rao, AIR 1938 Mad, 8 at p. 10-11). There can be no doubt that when a plea of benami is taken, the ostensible title cannot be displaced except on clear and cogent proof of benami character. Several relevant circumstances bear on the question, but the source of the purchase money has always been considered to be of primary importance. The onus of proof is the same in the case of sale deed standing in the name of female. There is no presumption in law that merely because the female had her husband at the time of purchase, the sale deed must be presumed to be benami for the husband (Shiv Kumari v. Subudhi, AIR 1932 Cal 829). The principle and the case:;