Holding

The transaction was not benami; the house was purchased by Bharat Singh with his own money intending plaintiff No. 2 to be the absolute owner.

Summary

The case concerned a suit for possession of a house in Bikaner, claimed by Bhim Singh and Himmat Singh (plaintiffs) on the basis of a patta issued in their names, while the defendant Kan Singh asserted ownership as a surviving coparcener and alleged the transaction was benami. The trial court held the plaintiffs were owners; the Rajasthan High Court reversed, deeming the transaction benami and granting joint possession to the plaintiff. The Supreme Court examined the nature of benami transactions, the burden of proof, and the intention of the purchaser, relying on Section 82 of the Indian Trust Act and Sections 21 and 32(3) of the Indian Evidence Act. Evidence showed that Bharat Singh, who paid for the house, intended plaintiff No. 2 to become the absolute owner, and there was no indication of a benami arrangement. Consequently, the Supreme Court set aside the High Court decree, restored possession to plaintiff No. 2, ordered mesne profits, allowed the plaintiffs' appeal and dismissed the defendant's appeal.

Issues considered

The transaction under which the patta was obtained – whether it was a benami transaction.
Who is the real owner of the suit house – the plaintiffs or the defendant.
The burden of proof and the relevance of the purchaser's intention in benami cases.

Legislation cited

Code of Civil Procedures. Order 20, Rule 12
Indian Evidence Act, 1872s. 21, s. 32(3)
Indian Trust Act, 1882s. 82

Subjects

benami transactionburden of proofintention of purchaserIndian Trust ActIndian Evidence Actpossessionmesne profitscivil appealproperty law

Judgment

628

A BHIM SINGH &.ANR.
v. I -

KAN SINGH
•
(AND VICE VERSA)
December 21, 1979
n
fP. N. SHINGHAL AND E. S. VENKAlARAMIAII, JJ.]
Benanii-What is-Tests for deciding benami transactions.
Plaintiff no. 1 and plaintiff no. 2 were father and son while defendant wa5
the brother of plaintiff no. 1. The plaintiffs in their suit against the defendanl
claimed that the suit house in Which the defendant WM living, belonged to
them by virtue of a patta issued in their names. They alleged that the deceased
brother of plaintiff no. 1, who remain'ed a bar-Jielor till his death, loved plaintiff
no. 2 as bis son and had thought of adopting plaintiff no. 2 but since he· died
all of a sudden it could not be done. The defendant on the other band claimed
that he and his deceased brother lived as m'embers of a joint family after the
partition of their family that as a rellult of the joint efforts of himself and his
D deceased brother the Ma-haraja, of Bikaner sanctioned sale cf the house io
them, that the purchase money v;as paid out of their joint income but that the
patta wa.s granted in the names of the plaintiffs du'e t_g political reasons and
therefore the plaintiffs were at the most benamidars.
The trial court held that the house was acquired by the deceas'ed brother
from the Government of Bikaner for the plaintiffs and the patta was granted in
E favour of the plaintiffs and that they were in its J>0S5csi;ion till 195fj. It rejected
the defendant's claim that it was acquired with the joint funds of him~clf z-nd
his deceased brother.

On appeal the High Court held that the house bad been purchased by the
deceased brother out of his own money in the names of the plaintiffs without
any intention to confer any beneficial interest on them a.nd on his d'eath plain· j
F tiff no. l and the defendant su=eded jointly to the estate as his heirs.

HELD : The transaction under 'Which the· patta was obtained was not a
benami transaction. The house WM w.:quired by the deceased brother with his
money and with the intention of constituting plaintiff no. 2 as the absolute owner
thereof. [648G]
Where a person buys property with his own money but in the name of
another person without any intention to benefit such other person, the transac·
tion is called benami. In that case the ~eree holcb!I the property for the
•
benefit of the person who hali. contributed the purchase money and he is a real
owner. T·he second case which ts looeely termed a benami tr.ansaction is a
~ase where a person, Who is the owner of the property, executes a conveyance
in favour of another without the intention of transferring the title to the pro-
perty thereund'er. In this case the transferor continues to be the real owner.
H The difference between the two kinds of benamj transactions is tha.t whereas in
the former there is an operative tramfer from the tramferor to the transferee,
though the transferee holds the property for tbe benefit of the person who bas ••
BHIM SINGH v. KAN SINGH (Venkataramiah J.) 629

• contributed the purchase mon·ey, in the latter there is no operative transfer at A
-• )
all and the title rests with the transferor notwithstanding the execution of the
conveyance. One common feature in both cases is that the real title is divorced
from the ostensible title and they are vested in different persons. The queition
whether a transaction is a benami transaction'. or not depends upon the intention
of the p'erson who has contributed the purchase money in the former case, and
upon the intention of the person who has executed the conveyance in the latter
case. The principle underlying the former case is statutorily r'ecognized in B
section 82 of the Indian Trust Act, 1882. [638B-E]
Mcenakshi Mills, Madurai v.. The r:ommissioner of Income-Tax, Madras,
(1956] S.C.R. 691 at p. 722; Mohammad Sadiq Ali Khan v. Fakhr Jahan Begam
&: Ors. 59 I.A. 1; Manrnohan Das & Ors. v. Mr. Ramdai & Anr. A.I.R. 1931
P. C. 175; Jaydayal Poddar (deceased) through /iis L.Rs. & Anr. v. Mst. Bibi
• Hazra & Ors. [1974] 2 S.C.R. 90 referred to.
(3
2. The prinlciples governing the determination of the question whether a
transfer is a benami or not are : ( 1) The burden: of showing that a. transfer is
a benami transaction lies on th'e person who asserts that it is such a transaction;
(2) if it is proved that the purchase money came from a person other tha.n the
person in whose fa\.uur the: property is transferred, the purchase is prilna-facie
assumed to b'e for the benefit of the person who supplied the purchase money,
nnle!S there is evidence to the contrary; (3) the true character of the transaction 0
is governed by the intention of the person who has contributed the purchas'e
money and ( 4) the question as to what his intention was, has to be decided
on the basis of the surrounding circumstances, the relationship of th'e parties
• the motives governing their action in bringing about the transaction and their
sui,.eqnent conduct. [6410.E]

In the instant case the deceased brother was a bachelor. On the death of E
the wife of plaintiff no. 1, plaintiff no. 2 and his younger brother were staying
with the de.ceased brother. Plaintiff no. l was almost in an indigent condition
while d'efendant practised law for some time and later entered into service. The
patta for the house was issued in the name of plaintiffs nos.. l and 2 at the re-
quest of the deceased brother for the benefit of plaintiff no. 2 and was handed
over to him after h'e completed his education. This conduct of the deceased
brothel established that it was his intention that, when he secured the patta from F
the State Government in the names of plaintiffs it was his intentioni that plaintiff
no. 2 whom he loved, should become th~ owner. [641F-H)

3. The declaration made by the deceased, who had contributed the purch..,e
money subsequent to the date of purchase to the effect that the property belong-
ed to plaintiff no. 2 wag admissible in evidence either under section 32(3) or
section 21 of the Indian Evidence Act to prove his intention that he intended G
that plaintiff No. 2 should become its owner. [647E]

SheP.hard & Anr. v. Cartwright & Anr. [1955] A.C. 431, distinguished.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 626 & 629 of
1971.
H
From the Judgment and Order dated 5-8-1970 of the Rajasthan
• -j High Conrt in R.F.A. No. 31/60.
630 SUPREME COURT REPORTS [1980] 2 S.C.R.

A S. T. Desai and Naunit Lal for the Appellant. •
P. R. Mridul, B. P. Sharma, Krishna Bhatt and R. K. Bhatt for the '• .
Respondents.
The Judgment of the Conrt was delivered by

8 VENKATARAMIAH, J.-These two cross appeals by certificate arise
out of a suit for posse6sion of a house situate in Bikaner and for
damages for use and occupation thereof filed in Civil Original Case
No. 17 of 1957 on the file of the District Judge, Bikaner. The plain· .-,.
tiffs in the suit are the appellants in Civil Appeal No. 626 of 1971 and · 't
tl:.e defendant is the appellant in Civil Appeal No. 629 of 1971. The r
c genealogy showing the relationship between the parties is given "·
below:-

Sur lingh

D
Bhar.ltSingh
(Died in
. I.
Bhims1ng h
(P.I.)
Kan~ingh
(Deft.)
Sept. 1955)
•

I
E
I
I
Duley Dhaney Deep
Singh Singh Singh

j
F Himmat Dalip
Singh Singh
(P.2.) (Died in
Sept. 56)

Gad Singh, Bharat Singh, Bhim Singh (plaintiff No. 1) and Kan
G
Singh (defendant) are the sons of Sur Singh. Bharat Singh died un- ...
married in September, 1955. Gad Singh died thereafter leavinfli behind
him three sons, Duley Singh, Dhaney Singh and Deep Singh. Dalip
Singh, the second son of plaintiff No.1 died in September, 1956.
Bharat Singh and the defendant were residing in the house which was
the subject matter of the suit. After the death of Bharat Singh, the
H plaintiffs Bhim Singh and Himmat Singh filed the suit out of which this
appeal arises against Kan Singh, the defendant for recovery of posses-
sion of the suit house and other ancillary reliefs. In the plaint, they +'
BIIIM SINGH v. KAN SINGH (Venkataramia,h !.) 63 I

pleaded that the suit house belonged to them by virtue of a patta dated A
July 12, 1940 issued in their names; that the cloofendant who was the
brother of plaintiff No. 1 and uncle of plaintiff No. 2 was living in a
part of the house with their consent; that plaintiff No. 2 and his
yonhger brother Dalip Singh were also Jiving in th" house till the year
•
1956; that the defendant had refused to receive a notice issued by
them ir. the month of September, 1957 calling npon him to hand over B
possession of the house to the plaintiffs; that the defendant had done
so on account of personal ill will and ·that the plaintiffs were, there-
.... fore, entitled to recover possession of the ~uit house and damages from
the defendant The<e were briefly the allegations made in the plaint.
-. On the above basis, the plaintiffs prayed for a decree for the reliefs
referred to above.
c
lo the written statement, the defendant did not admit the existence
of the patta on the basis of which the plaintiffs claimed title to the suit
house. He denied the allegation that the plaintifls were the owners in
possessicn of the suit house. He claimed that he was the exclusive
owner of the suit house, and in support of the said claim stated as D
followi :--

.. There was a partition amongst the sons of Sur Singh in the year
1929. At 'that partition, Gad Singh and plaintiff No. 1 became sepa-
rated and they were given all the family properties which were situated
in their village, Roda. As Bharat Singh and the defendant J1ad been E
educated at the expense of the family, they weu~ not given any snare
in the properly. Bharat Singh and he settled in Bikaner and lived to-
gather as members of joint Hindu family. Bharat Singh died on Sep-
• tember 2, 1955 leaving the defendant as a survivi'ng coparcener. 011
-~-
his death, the defendant became the owner of the properties of Bh;m:t
Singh 'as a member of joint Hindu family'. He fur:her pleaded that F
from the year 1928, Bharat Singh and he who were working as the
Aid-de-Camp and Private Secretary respectively of the Maharaja of
Bibner were living in the suit house which then belonged to ihc
Mabr.raja. The defendant filed an application for purchasing the
• honse. The proceedings had not terminated when tbe defendant left
G
the service ot the Maharaja and went "' Banaras for higher studies.
On h;~ return from Banaras, he joined the service of the Maharnj1 in
the civil department of Bikaner. After a Jong time on account of the
joint efforts of Bharat Singh and the defendant, the sale of the house
was sanc<ioned. Bharat Singh who was Jiving jointly with him pa;d
the ccnsideration for the sale on November 4, 1939 'out of the jornc
H
income.' Thus according to the defendant, Bharat Singh nnd lie be-
ca111e its owners from the date of payment of the consideration _1_1 ..
3-91SCI/80 '· '
G32 SUPREME COURT REPORTS [1980] 2 S.C.R.

further p;eaded that 'if the patta of the property had been granted in
ti::?. names of the plaintiffs due <o some reasons, political and other
surroundiDg circumstances and for the safety of the property, it cannot
affect the right of the defendant'. It was ~!so itated that Bharat Singh
and the defendant had not executed any sale deed in favour ot the •
plaintiffs and so they could not become owners of the suit house. In
B another part of the written statement, the defendant pleaded thus :
"The pkiintiffs have taken the entire ancestral property of
the viliage. Still they are harassing the defundant due to
avance. The defendant and Thakur Bharat Singh had been
doing Government service. So there was always danger of
c removal or confiscation of the property. Even if Thakur
Bharat Singh might have written or given his consent for
entering the names of the plaintiffs in the patta in this view,
it is not binding. The plaintiffs are at the most 'benami' even
though the patta which is not admitted might be proved."

D It is thus seen that the defendant put forward a two-fold claim to
the suit house-one on the basis of the right of survivorship and an-
other on the basis of a joint purchase along with Bharat Singh. Even
thou~h in one part of the written statement, he declined to admit the
existence of the patta, in paragraph 13 of the written statement which
..
is extracted above, he put forward the plea that the plaintiffs were al
• the most holding the property as benamdars. He, however, did not
claim that he was entitled to the property as an heir of Bharat Singh
alongwith plaintiff No. 1 .and Gad Singh who would have inherited the
estate of Bharat Si'ngh on his death being his nearest heirs.

In t11e reply, the plaintiffs denied that the defc;ndant was entitled
to the suit house as a surviving coparcener on the death of Bharat
Singh. They, however, pleaded that plaintiff No. l had purchased the
suit house out of his income; that Bharat Singh used to love plaintiff
No. 2 'a, his son' and was thinking of adopting him but he died all of
a sudde'n and that the defendanl' had not disclosed in his written state-
ment the special political circumstances under which the names of the •
G plaintiffs were entered in the patta. They denied that the defeililan~
had any interest in the suit house.
Or. the basis of the Oflll and documentary evidence produced be-
fore him, the learned District Judge who tried the suit held that Bharat
Singh had secured the house from the Government of Bikaner for the
ff plaintiffs with their money; that the patta of the house had been grant-
ed by the Patta Court in favour of the plaintiffs; that the plaintiffs
were in possession of the suit hoiase till September, 1956 and that the
BJIIM SINGH 1'. KAN SINGH (Venkataramidlz, J.) 633

defendant being their close relative was living ;n the house not on his A
<Jwn account but with the plaintiffs' permission. The learned District
Judge also held that the defendant had failed to prove that the suit
house had been acquired by him and Bharat Singh with their joint
fund. Accordingly he decreed the suit for possession of the house
in favour of the plaintiffs and further directed that the defendant should
pay damages for use and occupation at the rate of Rs. 50 per month B
from September 20, 1956 till the possession of the house was restor-
~- ed to them. Aggrieved by the decree of the trial court, the defendant
filed an appeal before the High Court of Rajasthan in Ci'Vil First
,fi.ppeal No. 31 of 1960. The High Court rejected the case of the
plaintiffs that the consideration for the house had been paid by Bharat
Singh out of the funds belonging to them and also the case of the
c
defendant that the house had been purchased by Bharat
Singh with the aid of joint family funds belonging to himself and the
defendant. The High Court held that the house had been purchased
by Bharat Singh out of his own money in the names of the plaintiffs
without any intention to confer any beneficial interest on them. It D
further held that the suit house belonged to Bharat Singh and on his
death, Gad Singh, ,plaintiff No. 1 and the defendant succeeded to bis
' estate which included the suit house in equal shares. Accordingly in
substitution of the decree passed by the trial court, the High Court
made a decree for joint possession in favour of plaintiff No. 1. The
rest of the claim of the plaintiffs was rejected. Dissatisfied with the E
decree of the High Court, the plaintiffs and the defendant have filed
these two appeals as mentioned above.

The principal issue which arises for consideration relates to the
ownership of the suit house. It is admitted on all hands that though
Bharat Singh and the defendant were living in the suit house from F
the year 1928, it continued to be the property of the Maharaja of
Bikaner till the date on which the patta (Exh. 4) was issued by the
Patta Court of Bikaner and that on the issua of the patta, the State
Government ceased to be its owner. It is also not di~puted that the
patta constituted the title deed in respect of the suit house and it was
G
issued in the names of the plaintiffs on receipt of a sum of Rs. 5,000.
On January 11, 1930, the defendant had made an application, a
cer~fied copy of which is marked as Exhibit A-116 to the Revenue
Minister of the State of Bikaner making enquiry about the price
of the suit honse on coming to know that the State Government in-
tended to sell it. After the above application was made, the. defen- R
dant left the service of the State of Bikaner and went to Banaras for
studies. Bharat Singh who was also an employee of the State Gov-
634 SUPREME cou:n REPORTS [19801 2 s.c. (.

A ernment was working as the Aid-de-Camp of the Maharaja in 1939.
At the request of Bharat Singh, an order was made by the Maharaja I -
on May 4, 1939 sanctioning the !Lale of the suit house for a sum o[
Rs. 5,000. Exhibit A-118 is the certified copy of the said order.
Exhibit A-120 is a certified copy of the order of Tehsil Mahnandi
showing that a sum of Rs. 5,000 bad been deposited on behalf of
B Bharat Singh towards the price of the suit house. It also shows that
Bharat Singh was asked to intimate the name of the person in whose
favour the patta should be prepared. Presumably, the patta was
issued in the names of the plaintiffs as desired by Bharat Singh and
Exhibit A-121 shows that it was handed over on September 30, 1940.
The patta was produced before the trial court by the plaintiffs.
c Y

By the time the patta was issued in the names of the plaintiffs,
the mother of plaintiff No. 2 had died. He was about eight years of
age in 1940 and he and his younger brother, Dalip Singh were under
the protection of Bharat Singh who was a bachelor. They were stay-
D ing with him in the suit house. The defendant also was residing in
it. Th~ plaintiffs who claimed title to the property under the patta
in the course of the trial attempted to prove that the sum of Rs. 5,000
which was paid by way of consideration for the patta by Bharat Singh
came out of the jewels of the mother of plaintiff No. 2 which had
come into the possession of Bharat Singh on her death. The plain-
E tiff No. 2 who gave evidence in the trial court stated that he had not
~iven any money to Bharat Singh for the purchase of the house but
he had come to know from his father, plaintiff No. 1 that it had been
purchased with his money. Jaswant Singh (P.W. 2) and Kesri Singh
(P.W. 3) to whose evidence we will make a reference in some detail
at a later stage also stated that they had heard from Bharat Singh
that the jewejs of the mother of plaintiff No. 2 were with him suggest-
ing that they could have been the source of the price house. Plaintiff
No. 1 who could have given evidence on the above question did not
enter the witness box. It is stated that he was a person of weak mind
and after the death of Bharat Singh was behaving almost like a mad
G man. The defendant stated in the course of his evidence that the •
mother of plaintiff No. 2 had gold jewels weighing about 3-4 tolas
only. In this state of evidence, it is difficult to hold that the plaintiffs
have established that the consideration for the suit house was paid by
-¥
them. The finding of the trial court that the house had been purchas-
ed by Bharat Singh for the plaintiffs with their money cannot be up-
H held. The case of the defendant that the price of the suit house was
paid out of the funds belonging to him and Bharat Singh bas been
rejected both by the trial court and the High Court. On going
BHIM SINGH v. KAN SINGH (Venkataramiah, J.) 635

- .) through the evidence adduced by the defendant, we feel that there is A
no reason for us to disturb the c<Jncurrent findings arrived at by the
trial court and the High Court on the above question. We shall,
therefore, proceed to decide the question of title on the basis that the
considera1ion for the purchase of the house was paid by Bharat Singh
out of his own funds.
II
It was contended by the learned counsel for the defendant that
since the plaintiffs had failed to establish that they had contributed the
, price paid for the suit house, the suit should be dismissed without
going into the question whether Bharat Singh had purchased the suit
house with his money in the names of the plaintiffs for the benefit of c
plaintiff No. 2. The plaint does not disclose the name of the person
or persons who paid the sale price of the suit house. The suit i~
based on the patta standing in the names of the plaintiffs. In the
written statement of the defendant, there was an allegation to the
effect that even though the patta was standing in the names of the
plaintiffs, they were only benamidars and the real .title was with D
Bharat Singh and the defendant. The particulars of the circumstances
which compelled Bharat Singh or the defendant to take the patta
in the names of the plaintiffs were not disclosed although it was stated
that it had been done owing to some political and other surrounding
circumstances and for the safety of the property. From the evidence
led by the parties, we are satisfied that they knew during the trial E
of the suit that the question whether the transfer effected under the
patta was a benami transaction or not arose for consideration in the
case. Even in the appeal before the High Court, the main question
on which arguments were addressed was whether the transaction was
a benami transaction or not. Merely because the plaintiffs attempted
F
lo prove in the trial court that the money paid for purchasing the
honse came out of their funds, they cannot in the circumstances of
this case b_e prevented from claiming title to the property on the basis
that even though Bharat Singh had paid the consideration therefor,
•
plaintiff No. 2 alone was entitled to the suit house. Reference mav
be made here to the decision of this Court in Bhagwati Prasad v. Shri G
Clwndramau/(1) where the Court observed as follows : -

"There can be no doubt that if a party asks for a relief
on a clear and specific grounds, and in the issues or at the
trial, no other ground is covered ei1her directly or by neces-
sary implication, it would not be open to the said party to H

(I) [196<>1 2 S,C.R.286.
636 SUPREME C!JURT REPORTS [1980] Z S.C.R.

A attempt to sustain the same claim on a ground which is I -
entirely new. . . . . . . . . . But in considering the application
of this doctrine to the facts of the present ca~e, it is neces-
sary to bear in mind the other principle that considerations of '
form cannot over-ride the legitimate considerations of subs-
tance. If a plea is not specifically made and yet it is covered
B by an issue by implication, and the parties knew that the
said plea was involved in the trial, then the mere fact that
the plea was not expressly taken in the pleadings would not
necessarily disentitle a party from relying upon it if it is
satisfactorily proved by evidence. The general rule no doubt
is that the relief should be founded on pleadinga made by
the parties. Bnt where the substantial matters relating to
the title of both parties to the suit arc touched, though in-
directly or even obscurely in the issues, <ind evidence has
been led about them, then the argument that a particular
matter was not expressly taken in the pleadings would be
D purely formal and technical and cannot succeed in every
case. What the Court has to consider in dealing with such
an objection is: did the parties know that the matter in
question was involved in the trial, and did they lead evidence
about it?"

After holding that the parties to the said case were not taken by
E
surprise, the Court granted the relief prayed for by the plaintiff on
the basis that defendant was a licensee even though the plaintiff had
pleaded in his plaint that the defendant was tenant. In the above
case, the Court distinguished the decision in Tro;an & Co. Ltd. v.
RM. N. N. Hagappa Chettiar(l) on which much reliance was placed
F by the learned counsel for the defendant before us. In the case of
Trojan & Co. Ltd. (supra), this Court came to the conclusion that
the alternative claim on which relief was sought was not at all within
the knowledge of the parties in the course of the trial. The case
before us is not of the nature.
•
In Ismail Mussa;ee Mookerdum v. Hafi;:, Boo(') the plaintiff laid
G
claim to a property which had been transferred in her name by her
mother alleging that she had paid the purchase money to her mother.
The court came to the couclusion that she had failed to prove 11hat
she had paid the consideration. Still a decree was made in her favour
holding that she had become the owner of the property by virtue of
the transfer in her favour even though consideration had not been
(I) [1953] S.C.R. 789. r •
(2) 33 I.A. 86.
BHJM SINGH v. KAN SINGH (Venkatarami"h. J.) 63 7

paid by her since it had been establi•hed in the case that her mother A
-• ) intended to transfer the beneficial interest in the property in her
favour. This is borne out from the following passage at page 95
"Jn her evidence, which was very confused, she tried to
say that she paid that purchase-money to her mother. This
was clearly untrue : as both Courts have found. The fact, 8
therefore, remains that the properties purchased by the
sale proceeds were purchased no doubt in Hafiz Boo's name,
but were purchased out of funds emanating from her mother's
estate. This circumstance no doubt, if taken alone, affords
evidence that the transaction was benami, but there is, in
their Lordships' opinion, enough in the facts of the case to c
negative any such inference."
Moreover no plea was raised on behalf of the defendant before the
High Court in this case contending that the High Court should not go
into the queotion whether the transfer under the patta was a benami
transaction or not. We, therefore, reject the above contention and D
proceed to examine whether the High Court was right in arriving at
the ooneksion that the plaintiffs were only benamidars holding the
property for the benefit of its real owner, Bharat Singh as the con-
sideration therefor had emanated from him.

Under the English law, when real or personal property is pur-
chased in the name of a stranger, a resulting trust will be presumed
in favour of the person who is proved to have paid the purchase
money in the character of the purchaser. It is, however, open to the
transferee to rebut that presumption by showing that the intention of
the person who contributed the purchase money was that the trans-
feree shm1lJ himself acquire the beneficial interest in the property. I'
There is, however, an exception to the above rule of presumption
made by the Engli•h law when the person who gets the legal title
under the conveyance is either a child or the wife of the person who
contributes the purchase money or his grand child, whose father is
• dead. The rule applicable in such cases is known as the doctrine of G
advancement which requires the court to presume that the purchase
is for the benefit of the person in whose favour the legal title is trans-
ferred even though the purchase money may have been contributed
by the father or the husband or the grandfather, as the case may be,
unless such presumption is rebutted by evidence showing that it was
the intention of the person who paid the purchase money that the H
transferee should not become 1he real owner of the property in
question. The doctrine of advancement is not in vogue in India.
638 SUPREME COURT REPORTS (1980] 2 SC.R.

A The counterpart of the English law of resulting trust referred to
above is the Indian law of benami transactions. Two kinds of be-
nami transactions are generally recognized in India. Where a person
buys a property with his own money but in the name of another per-
son without any intention to benefit such other person, the transac-
tion is called benami. In that case, the transferee holds the property
B for the benefit of the person who has contributed the purchase money,
and he is the real owner. The second case which is loosely termed
as a benami transaction is a case where a person who is the mmer
of the property executes a conveyance in favour of another without
the intention of transferring the title to the property therennder. In /1'

c this case, the transferor continues to be the real owner. The difference
between the two kinds of benami transactions referred to above lies
in the fact that whereas in the former case, there is an operative trans-
fer from the transferor to the transferee though the transferee holds
the property for the benefit of the person who has contributed the pur-
chase money, in the latter case, there is no operative ~ransfer at all
D and the title rests with the transferor notwithstanding the execution of
the conveyance. One common feature, however, in both these cases
is that the real title is divorced from the ostensible title and they are
vested in different persons. The question whether a transaction is a
benami transaction or not mainly depends upon the intention of the
person who has contributed the purchase money in the former case
E and upon the intention of the person who has executed the conveyance
in the latter case. The principle underlying the former case is also
statutorily recognized in section 82 of the Indian Trusts Act, 1882
which provides that where property is transferred to one person fer a
consideration paid or provided by another person and it appears that
such other person did not 1ntend to pay or provide such consideration
for the benefit of the transferee, the transferee must hold the property
for the benefit of the person paying or providing the consideration.
This view is in accord with the following observations made by thiS
Court in Meenakshi Mills. Madurai v. The Commissioner of Income-
Tax, Madras(') : -
"In this connection, it is necessary to note that the word
'benami' is used to denote two classes of transactions which
differ from each other in their legal character and incidents.
In one sense, it signifies a transaction which is real, as for
example when A sells properties to B but the sale deed men-
H tions X as the purchaser. Here the sale itself is genuine.
but the real purchaser is B, X being his benamidar. This is I •

(1) [1956] S.C.R. 691 at p. 722.
!!HIM SINGH v. KAN SINGH (Venkataramid,h, J.) 639

) the class of transactions which is usually termed as benami. A
But the word 'benami' is also occasionally used, perhaps not
quite accurately, to refer to a sham transaction, as for
example, when A purports to sell bis property to B with-
out intending that his title should cease or pass to B. The
fnndamental difference between these two classes of trans-
B
actions is that whereas in the former there is an operative
~· transfer resulting in the vesting of title in the transferee, in the
latter there is none such, the transferor continuing to retain
r the title notwithstanding the execution of the transfer deed.
It is only in the former class of cases that it would be neces-
"' sary, when a dispute arises as to whether the person named
in the deed is the real transferee or B, to enquire into the
c
quest;on as to who paid the consideration for the transfer,
X or B. But in the latter class of cases, when the question
is whether the transfer is genuine or sham, the point for
decision would be, not who paid the consideration but
whether any consideration was paid."_ D

In Mohammad Sadiq Ali Khan v. Fakhr lahan Begum & Ors.(')
the facts were these : A Mahemmodan bought an immovable property
taking the conveyance in the name of his daughter who was five years
of age. The income was credited to a separate account, but it was
in part applied to purposes with which she had uo concern. Upon E
her marriage, the deed was sent for the inspection of her father-in-
law. After the death of the donor it was contended that the property
was part of his estate, the purchase being benami. The Judicial Com-
mittee of the Privy Connell held that there was a valid gift to the
daughter because there was proof of a bona fide intention to give,
F
and that intention was established. In the conrse of the above de-
cision, it was observed thus : -

"The purchase of this property was a very natural pro-
vision by Baqar Ali for the daughter of his favourite wife,
and though there may be no presumption of advancement in G
such cases in India, very little evidence of intention would be
sufficient to turn the scale. The sending of the deed for the
inspection of the lady's father-in-law, which the Chief Court
held to be established, was clea-rly a representation that the
property was hers, and their Lordships agree with the learn-
ed Judges in the conclusion to which they came." H
(I) 59 I.A. I.
640 SUPREME COURT REPORTS [1980] 2 s.c.R.

A In Manmohan Dass & On. v. Mr. Ramdei & Anr.(') Lord Mac- (
mman speaking for the Judicial Committee observed :

In order to determine the question of the validity or •
invalidity of the deed of gift in question it is of assistance to
consider .
B
'the surrounding circumstances, the position of the parties
and their relation to one another, the motives which could
govern their actions and their rnbsequent conduct.' Da/ip
Singh v. Nawal Kanwar 35 I.A. 104 (P.C.) always remem-
bering th•at the onus of proof rests upon the party impeach-
c ing the deed.

The principle enunciated by Lord Macmillan in the case of
· Manmohan Dass & Ors. (supra) has been followed by this Court in
Jayadayal Poddar (deceased) through his L. Rs. & Anr. v. Mst. Bibt
Hazara & Ors. Cl where Sarkaria, J. observed thus :
D
"It is well settled that the burden of proving that a parti-
cular 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
E prove the fact of benami or establish circumstances uner-
ringly and reasonably rai,ing 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 transac-
F tion to be bcnami of any )l'art 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
G
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 question, no absolute formulae or acid
tests, uniformly applicable in all situations, can be laid
ff down; yet in weighing the probabilities and for gathering
(1) A.LR. 1931 P.C 175. I
(2) [1974] 2S.C.R.90.
BHIM SINGH v. KAN SINGH (Venkataramiah, J.) 641

the relevant indicia, the courts are usually guided by these
j circumstances: (1) the source from which the purchase
money came; (2) the nature and possesion of the property,
after the purchase; (3) motive, if any, for giving the transac-
tion a benami colour; ( 4) the position of the parties and the
relationship, if- any between the claimant oand the alleged
benamidar; (5) the custody of the title deeds after the sale B
and (6) the conduct of the parties concerned in dealing with
the property after the sale."

The principle governing the determination of the question whether
a tronsfer is a benami transaction or not may be summed up thus :
" ( 1) The burden of showing that a transfer is a benami transaction lies
c
on the person who asserts that it is such a transaction; (2) if it is
proved that the purchase money came from a person other than the
person in whose favour the property is transferred, the purchase is
prima facie a.sumed to be for the benefit of the person who supplied
the purchase money, unless there is evidence to the contrary; (3) the D
true character of the transaction is governed by the intention cf the
person who has contributed the purchase money and ( 4) the question
as to what his intention was has to be decided on the basis of the sur-
rounding circumstances, the relationship of the parties, the motives
governing their action in bringing about the transaction and their snb-
sequent conduct etc. E

Now we shall refer to the facts of the present case. When the
suit house was purchased from the Maharaja of l3ikaner, Bharat Singh
was a bachelor and he did not marry till his death in the year 1955.
The wife of Bhim Singh had died before 1939 leaving behind her two
young children. Plaintiff No. 2 was about eight years old in the ye11r F
• 1939 and his younger brother Dalip Singh was about two years old .
These two childre.n were living with Bharat Singh. Bhim Singh, plain-
tiff No. 1 was almosl in indigent conditi'on. The defendant had by
then acquired a degree in law and also had practised as a lawyer for
some time. It is stated that the defendant had again been employed
G
in the service of the State of Bikaner. The patta was issued in the names
of plaintiffs 1 and 2 at the request of l3harat Singh. Even though the
defendant stated in the written statement that the patl'a had been taken
in the names of the plaintiffs owing to certain political circumstances,.
he had not disclosed in the course, of his evidence those circnmstances
which compelled Bharat Singh to secure the patta in the names of the H
plaintiffs, though at one stage, he sl'ated that it was under his advice
that Bharat Singh got the patta in the names of the plaintiffs. Bharat
642 SUPREME COURT REPORTS .(1980] 2 S.C.R.

A Singh had no motive to suppress from the knowledge of the public that 1,
he had acquired the property. It was suggested in the course of the
a.rguments that he had taken the patta in the names of the plaintifl'>
because he was in the service of the State. We do not find any subs-
tance in this submission because the property was being purchased
from the State Government itself and there was no need for him to
shield his title from the knowledge of the State Government. It ap-
pears that Bharat Singh acquired the suit house for the benefit of plain-
tiff No. 2 for the following circumstances : The first circumstance is
that the original patta had been handed over by Bharat Singh to plain-
tiff No. 2 on his passing B.Sc. Examination. This fact is proved by
the evidence of plaintiff No. 2 and it is corrobomted by the fact tbat
the patta was produced by the plaintiffs before the Court. In the
course of bis evidence, the defendant no doubt stated that tbe patt:i
had been stolen by plaintiff No. 2 from the suit bouse during tl:e
twelve days following the deatb of Bharat Singh when the keys •Jf
Bharat Singh's residence had been h•anded over to plaintiff No. 2 by
the defendant. It is difficult to believe the above statement of foe
defendant because of two circumstances-(i) that the defendant did
not state in the written statement that the patta had been stolen by
plaintiff No. 2 and (ii) that within a month or two after the death of
Bharat Singh, plaintiff No. 2 wrote a letter which is marked as Exhibit
A-124 to the defendant stating that the rumour which the defenda,1t
was spreading that plaintiff No. 2 had stolen some articles from the
suit house was not true since whenever plaintiff No. 2 opened room
or any of the almirahs of Bharat Singh in the suit house, Devi Singh.
lhe son of the defendant was keeping watch over him. That letter hos
been produced by the defendant and there is no reference in it to a
false rumour being spread about the theft of the patta by plaintiff
F No. 2. Pl'aintiff No. 2 however, while asserting his claim to the suit
house in the course of that letter stated that he had seen that the patta
had been executed in his favour; and that the patta c·ontained his name.
The defendant does not appear to have sent any reply to Exhibit
A. 124 nor did he cull upon the plaintiffs to return the patta to him.
·G He did not also file a complaint stating that the patta had been stolen
by plaintiff No. 2. We are of the view that there; is no reason to di>-
believe the evidence of plaintiff No. 2 that the patta had been handed
over to him by Bharat Singh on his passing the B.Sc. examination.
This conduct of Bharat Singh establishes that it was the intention of
Bharat Singh when he secured the patta from the State Government
in the names of the plaintiffs that plaintiff No. 2 whom he loved should
become the owner. It is no doubt trne that the name of plaintiff No.
1 is also included in the P'atla. It may have been so included by way
BllIM SINGH v. KAN SINGH (Venkataramia;/z, !.) 643

of abundant caution as plaintiff No. 2 was a minor when the patta A·
) was issued. The above circumstance is similar to the one which persu-
aded their Lordships of the Privy Council in the case of Mohammad
Sadiq Ali Khan (supra) to hold that the property involved in that
case belonged to the person in whose favour the conveyance had been
executed.
B
The second circumstance which supports the view that Bharat Singh
intended that plaintiff No. 2 should become the owner of the suit house
is proved by the declarations made by Bharat Singh regarding the title
to the suit house. Jaswant Singh (P.W. 2) was a former Prime Minis-
ter of the State of Bikaner. His wife was a cousin of plaintiff No. 1,
Bharat Singh and the defendant. Being a close relative of Bharat Singh c
who was also the Aid-de-Camp of the Mahamja of Bikaner, he was
quite intimate with Bharat Singh who used to discuss with him about
his personal affairs. P.W. 2 has stated in the course of his evidence
that Bharat Singh thought it proper to purchase the house i11 !he name
of plaintiff No. 2 and that he intended to make plaintiff No. 2 his heir
and successor. · He has also stated that Bharat Singh had expressed
his desire to give all his property to plaintiff No. 2 by a will and that
he bad told Kesri Singh (P.W. 3) just a day prior to his (Bharat
Singh's) death that a will was to be executed. This statement of
Jaswant Singh (PW. 2) is corroborated by the evidence of Kesri Sing.-i
(P.W. 3) whose wife was also a cousin of Bharat Singh, plaintiff No.
1 and the defendant. The relevant portion of the deposition of Kesri E
Singh (P.W. 3) reads thus:
"I came from Jaipur to Bikaner by train one day before
the death of Blrarat Singh and when I was returning after a
walk I found Bharat Singh standing at the gate of his house. I
' asked Bharat Singh to accompany me to my house to have F
tea etc. Bharat Singh came with me to my house. Bharat
Singh told me at my house that he was not quite all right and
that he might die at any time .. He wanted to execute a will.
He further told me that his house really belonged to Himmat
Singh. It has been purchased in his name. He wanted to
give even other property to Himmal Singh. . . . . By other G
property which Bhamt Singh wanted to give to Himmat Singh
was meant Motor car, bank balance and the presents which
he had. The house regarding which my talk took place with
Bharat Singh at my honse was the house in dispute."
There is no reason to disbelieve the evidence of these two wil- H
nesses. Their evidence is corroborated by the deposition of Dr.
Himmat Singh (D.W. 6) who was the Secretary of a Club in Bikaner
644 SUPREME COUl<T REPOR'I S [1980] 2 S.C.R.

A of which Bharat Singh was a member. He was examined by the
(
defendant himself as his witness. Jn the course of his cross-examina- •
tion, Dr. Himmat Singh (D.W. 6) rc!errcd to what Bharat Singh had
told him a few months prior to his death. The substance of his de-
position is found in the judgment of the trial court, the relevant portion
of which reads thus :
B
"D.W. 6 Dr. Hinunat Singh is the Secretary of the Sardul
Club, Bikancr. He is the Senior Eye-Surgeon in the Gov-
ernment Hospital, Bikancr. He has stated that Bharat Singh
was the member of Sardul Club. A sum of Rs. 42516/ ..
remained outstanding against him till the year 1955. This
amount was received on 28-10-1955. He has said that he
does not know who deposited this amount. On the merits
of the case, he has stated that he intimately knew Bharat
Singh and members of his family. Bhim Singh and his sons
Himmat Singh and Dalip Singh used to live in this house.
Bharat Singh took this house for Bhim Singh and Himmat
D Singh. Four months before his death, Bharnt Singh told the
witness that he had already taken the house for Bhim Singh
and Himmat Singh and that whatever else would remain with
him shall go to them. Dr. Himmat Singh refutes the defen-
dant's stand and supports the plaintiff's case."
It was argued on behalf of the defendant that there is some varia.-
tion between the deposition of Dr. Himmat Singh (D.W. 6) and the
above passage found in the judgment of the trial court and that the
evidence of D.W. 6 should not be believed as he had turned hostile.
The deposition of Dr. Himmat Singh (D.W. 6) was read out to us. )
It was also brought to our notice that an application had been made
by the defendant to treat D.W. 6 as hostile and that it had not been
granted by the trial court. Even though there is a slight ,·ariation
between what is stated by D.W. 6 and what is contained in the judg-
ment of the trial court with regard to certain det·ails, we do not feel
that the said variation is of any substantial nature. The evidence of
D.W. 6 suggests that Bharat Singh was of the view even during his
life time that the suit house bolonged to plaintiffs and not to himself.
Even though an application had been made by the defendant to treat
D.W. 6 as hostile, we feel that this part of the evidence of
D.W. 6 cannot be rejected on that ground since it is consistent with
the evidence of Jaswant Singh (P.W. 2) and Kesri Singh (P.W. 3).
II
It is seen from the judgment of the High Court that the effect of
the statement of Kesri Singh (P.W.3) in his deposition that Bharat Singh
BIHM SINGII v. KAN S!NGJI (Ve11kataramia/1. J.) 64b

•had told him that the suit house was the property of pla,intiff No. 2 A
"has not been considered. The High Court while dealing with the evi·
-dencc of Jaswant Singh (P.W. 2) and Kesri Singh (P.W. 3) laid more
emphasis on those parts of their evidence where there was a reference
' to the alleged utilisation of the jewels or moneys belonging to th~
,plaintiffs by Bharat Singh for the ,urpose of acquiring the suit house.
The High Court has also observed in the course of its judgment that B
neither of them had stated that Bhamt Singh had told them that he
was purchasing or had purchased the suit house as a gift to Bhim Singh·
and Himmat Singh. The above observation does not appear to be
consistent with the evidence of Kesri Singh (P.W. 3) discussed above.
't.
It was, however, contended on behalf of the defendant that the c
statement made by Bharat Singh in the year 1955 could not be accepted
as evidence in proof of the nature of the transaction which had taken
place in the year 1940. It was contended that the question whether
a transaction was of a benami nature or not should be decided on the
basis of evidence about facts which had taken place at or about the
D
time of the transaction and not by statements made several years after
the date of the transaction. In support of the ·above contention, the
learned counsel for the defendant relied on the decision of the House
' of Lords in Shephard & Anr. v. Cartwright & Anr.('). The facts of
~:\that case were these: In 1929, a father, with an assii(;'ate, promoted
" several private companies and caused a large part of the shares, for E
which he subscribed, to be allotted in varying proportions to his three
children, one of them being then an infant. There was no evidence
as to the circumstances in which the allotments were made. The com-
panies were successful and in 1934 the father and his associate pro·
moted a public company which acquired the shares of all the com-
panies. The children signed the requisite documents at the request of F
their father without understanding what they were doing. He receiv-
ed a cash consideration and at ~mious times sold, and received the
proceeds of sale of, their shares in the new company. He subse-
quently placed to the credit of the children respectively in separate
deposit accounts the exact amount of the· cash consideration for the
Qld shares and round sums in each case equivalent to proceeds of sale G
of the new shares. Later he obtained the children's signatures to
documents, of the contents of which they were ignorant, authorising
him to withdraw money from these accounts and without their know-
ledge he drew on the accounts, which were by the end of 1936 exhaust-
ed, part of the sums withdrawn being dealt with for the benefit of the H
children but a large part remaining unaccounted for. He died in
(1) [1955] A.C. 431.
646 SUPREl\iIE COURT REPORTS [1980] ~ s.c.R.

A 1949. ln the action filed against his executors, it was contended by
them that the subsequent conduct of the father showed that when
the shares were got allotted by him in the names of the children
in 1929, he did not intend to make them the real owners of the shares
and that the presumption of advancement had been rebutted. This •
contention was met by the plea that the subsequent conduct of the
B father in dealing with the shares as if they were his own could not be '
relied upon either in his favour or in favour of his representa.tives,
executors and administrators to prove that he had no intention to
create any beneficial interest in his children in the shares in question
when they were obtained. On these facts, the House of Lords held that
the subsequent acts and declarations of the father could not be relied y
c upon in his favour or in favour of his executors to rebut the presl!lllp-
tion of ad\'ancement. Viscount Simonds in the course of his judg-
ment observed thus :

"1\ly Lords, I do not distinguish between the purchase of
D shares and the acquisition of shares upon allotment, and l
think that the law is clear that on the one hand where a man
purchases shares and they arc registered in the nume of "
stranger there is a resulting trust in favour of the purchaser;
on the other hand, if they are registered in the name of a
child or one to whom the purchaser then stood in loco
E parentis, there is no such resulting trust but a presumption
of advancement. Equally it is clear that the presumption •
may be rebutted but should not, a.s Lord Eldon said, give
way to slight circumstances : Finch v. Finch ( 1808) 15 Ves.
43.
F It must then be asked by what evidence can the presump-
tion be rebutted, and it would, I think, be very unfortunate
if any doubt were cast (as I think it has been by certain
passages in the judgments under review) upon the well-
settled law on this subject. It is, I think, correctly stated in
G substantially the same terms in every text book that I have
consulted and supported by authority extending over a Jong
period of time. I will take, as an example, a passage from
Snell's Equity, 24th ed., p. 153, which is as follows :

"The acts and declarations of the parties before or at the
B time of the purchase, or so immediately after it as to consti-
tute a part of the transaction, are admissible in evidence
either for or against the party who did the act or made the
BHIM Sll\GH v. KAN SINGH (Venkataramiah, J.) 64 7

declaration. . .. But subsequent declarations are admissi- A
ble as evidence only against the party who made them, and
not in his favour."

The above passage, we are of the view, does not really assist the
defendant in this case. What was held by the House of Lords iri
the case of Shephard & Anr. (supra) was that the presumption of B
advancement could be displaced only by a statement or conduct
anterior to or contemporaneous to the purchase nor could any conduct
of the children operate against them as admissions against their in-
" terest as they acted without the knowledge of the facts. In the instant
case, we are concerned with the conduct and declarations of Bharat
Singh subsequent to the transaction which were against his interest. c
The evidence regarding such conduct and declarations is not
being used in his favour but against the legal representative of
Bharat Singh i.e. the defendant who would have become entitled to
claim a share in the suit house if it had formed part of his estate.
Such conduct or declaration would be admissible even according to D
the above decision of the House of Lords in which the statement of
law in Snell's Equity to the effect 'but subsequent declarations ar'1
admissible as evidence only against the party who made them, and
not in his favour' is quoted with approval. The declarations made
by Bharat Singh would be admissible as admissions under the provi-
sions of the Indian Evidence Act being statements made by him E
against his proprietary interest under section 21 and section 32(3)
of the Indian Evidence Act.

The defendant cannot also derive any assistance from the deci-
sion of this Court in Bibi Saddiqa Fatima v. Saiyed. M"Ohammad
Mahmood Hasan('). The question before the Court in the case of F
Bibi Siddiqa Fatima (supra) was whether a property which had
• been purchased by a husband in !Ji's wife's name out of the fund
belonging to a waqf of which he was a Mutawalli could be claimed
by the wife as her own property. This Court held that the wife who
was the ostensible owner could not be treated as a real owner having
regard to the fact that the purchase money had come out of a fund G
belonging to a waqf over which her husband who was the Mutawalli
had no uncontrolled or absolute interest. Jn reaching the aoove
conclusion. this Court observed thus :

"We may again emphasize that im a case of this
nature. all the aspects of the benami law including the 8
(1) [1978] 3 S.C.R. 886.
4-91SCij80
648 SUPREME COORT REPORTS [1980] 2 S.C.R.

A question of burden of proof cannot justifiably be applied
fully. Once it is found, as it has been consistently found,
that the property was acquired with the money of the waqf,
a presumption would mise that the property is a waqf
property irrespective of the fact as to in whose name 11
was acquired. The Mutawalli by transgressing the limits
B of his power and showing undue fdvour to one of the
beneficiaries in disregard to a large number of other bene-
ficiaries could not be and should not be permitted to gain
advantage by this method for one beneficiary which in
substance would be gaining advantage for himself. In such
a situation it will not be unreasonable to say-rather it
c would be quite legitimate to infer, that it was for the plain-
tiff to establish that the property acquired was her personal
property and not the property of the waqf."

It was next contended that the defendant had spent money on
the repairs and reconstruction of the building subsequent to the
D
date of the patta and that therefore, he must be held to have acquir-
ed some interest in it. We have gone through the evidence bearing
on the above question. We are satisfied that the defendant has not
established that he had spent any money at all for construction and
repairs. Even if he has spent some money in that way with the
knowledge of the actual state of affairs, it would not in law confer
on the defendant any proprietary interest in the property.

It is also significant that neither Gad Singh during his life time
nor his children after his death have laid any claim to a share in
the suit hou~e which they were entitled to claim alongwith the /

f1 defendant if it was in fact a part of the estate of Bharat Singh.
Their conduct also probabalises, the case of the plaintiffs1 that Bharat
Singh did not intend to retain for himself any interest in the suit
house.

On the material placed before us, we are satisfied that the
transaction under which the patta was obtained was not a benami
transaction end that Bharat Singh had acquired the suit house with
his money with the intention of constituting plaintiff No. 2 as the
absolute owner thereof. Plaintiff No. 2 is, therefore, entitled to a
decree for possession of the suit house.

H The trial court passed a decree directing the defendant to pay
damage~ for use and occupation in respect of the suit house at the
rate of Rs. 50/- per month from September 20, 1956 fr]] the
DHIM SINGH v. KAN SINGH (Venkataramiah, !.) 649

possession of the house was delivered to the plaintiffs. The opera- A
' lion of the decree of the trial court was stayed by the High Court
during the pendency of the appeal before it. In view of the decree
passed by the High Court, the defendant has continued to be in
possession of the suit house till now. Nearly twenty years have
elapsed from the date of the institution of the suit. Jn the circums-
tances, we are of the view that the defendant should be directed to B
pay mesnc profits at the rate of Rs. 50/- per month till today and
that an enquiry should be made by the trial court under Ordoc 20,
"- Rule 12 of the Code of Civil Procedure to determine the mesne
r profits payable by the defendant hereafter till the date of delivery of
'Possession.
c
In the result, the decree passed by the High Court is set aside
and a decree is passed directing the defendant to deliver possession
of the suit house to plaintiff No. 2 and to pay mesne profits to him
at the rate of Rs. 50/- per month from September 20, 1956 till
today and also to pay future mesne profits as per decree to be
passed by the trial court under Order 20, Rule 12 of the Code of D
Civil Procedure.
For the foregoing reasons, Civil Appeal No. 626 of 197! Is
accordingly allowed with costs throughout. Civil Appeal No. 629
of 1971 is dismissed but without costs.
E
C.A. 626/71 allowed.
P.B.R. C.A. 629/71 dismissed.

•