P.R. Gokulakrishnan, J.
1. Defendants 1 to 3 and 5 to 7 are the appellants. The suit was for declaration, possession and damages-
2. The dispute in the suit related to a vacant site measuring 45 x 285 feet, comprised in S. No. 42/4-A of Poovalambedu village. One Shanmugham Pillai purchased the suit site from one Alagusundara Mudali for Rs. 50/- under a registered sale deed dated 5th February, 1914. As Shanmugham Pillai was a permanent resident of Madras, the suit site was under the management of the first defendant, his wife's step-brother. Defendants 2 and 3 are the undivided sons of the first defendant. Defendants 4 and 5 were permitted to put up a hut in a portion of the suit site. On 11th July, 1962, the plaintiff purchased the suit site from the grandsons of Shanmugham Pillai for Rs. 750/- under a registered sale deed. Since the enemies of the plaintiff have set up the sixth defendant to put up resistance to the plaintiff the plaintiff issued a notice to the defendants on 21st December, 1962, to which the latter sent a reply on 14th January, 1963 with false allegations. Defendants 7 to 10 are the heirs and legal representatives of the fourth defendant who died pending the suit. According to the plaintiff, the defendants are liable to deliver possession of the suit property to him and to pay damages for the use and occupation of the property, from nth July 1962 at the rate of Rs. 6 per mensem. On these allegations, the plaintiff came forward with the suit for declaration of his title to the suit property, for possession of the same after removing the huts put up by defendants 4 and 5 therein and for recovery of Rs. 48 towards damages for use and occupation from nth July, 1962 till the date of plaint.
3. Defendants 8 and 9 remained ex parte. The other defendants filed three sets of written statement.
4. The first defendant claimed the suit property as his ancestral property. According to him, his father purchased the same in the name of Shanmugham Pillai, in whom he had great confidence. He took the sale deed in the name of Shanmugham so that his sons through the first wife might not claim the same as joint family property. He paid the consideration of Rs-50 and took possession of the property. Ever since then, he was in possession of the suit property and also the title-deed. Shanmugham Pillai never claimed any right in the suit property. In the family partition, the suit property fell to the share of defendants 1 to 3. The first defendant sold an extent of 45 x 60 feet of the suit property to the sixth defendant about 22 years ago for Rs. 400, and ever since then the sixth defendant has been in possession and enjoyment of that portion by putting up a fence and stocking hay-icks. The first defendant permitted defendants 4 and 5 to occupy portions of the suit property about twenty-five years ago. The first defendant was never managing the suit property on behalf of Shanmugham Pillai or his heirs. He further contended that he has been using the rest of the portion of threshing-floor. He therefore prayed for a dismissal of the suit.
5. Defendants 2 to 6 filed a common written statement adopting the written statement of the first defendant and further contended that the plaintiff's vendors had no title to the suit property and that they were never in possession of the same at any time within twelve years before suit. They further contended that the suit property is the ancestral property defendants 1 to 3 and that it has always been in their possession and enjoyment by virtue of a partition, which took place about twenty-five years ago. The first defendant put up a kiln in the suit site more than fifteen years ago and so defendants 1 to 3 are entitled to it. The first defendant sold an extent of 45 x 60 feet of the suit site to the sixth defendant for Rs. 400 about twenty years ago and ever since 'he has been in exclusive possession of that portion by putting up a fence and stocking hayricks. Defendants 4 and 5 are in possession of a portion of the suit site for the past fifteen years and twenty-five years respectively and therefore the plaintiff has no right to the suit site .
6. Defendants 7 to 10 were brought on record as the legal representatives of the deceased fourth defendant who died, pending suit, and they filed a written statement adopting the written statements filed by defendants 1 to 6.
7. The trial Court, on the issues framed in the suit, held that the sale in favour of the plaintiff is not valid, that he and his predecessors-in-title have not been in possession of the suit property within twelve years before suit, that defendants 4 and 5 were in permissive possession of the suit property only under the first defendant, that the suit property was purchased by the first defendant's father benami in the name of Shanmugham Pillai, that the sixth defendant has not purchased any portion of the suit property from the first defendant, that the suit site property did not fall to the share of defendants 1 to 3 in the family partition, as set up by them and that the plaintiff is not entitled to the reliefs prayed for. The trial Court thus dismissed the suit.
8. Aggrieved by the judgment and decree of the trial Court, the plaintiff filed an appeal to the Sub Court at Chingleput. The lower appellate Court after elaborately discussing the evidence on record, found that the case of benami set up by the defendants is not true, that Shanmugham Pillai derived valid title under Exhibit B-1 and that therefore his heirs, the vendors of the plaintiff, had valid title to convey under Exhibit A-1.
The lower appellate Court also found that the suit property has not been purchased benami by the first defendant's father in the name of Shanmugham Pillai and that the first defendant and the persons claiming from him have not perfected title to the suit property by adverse possession. In view of the above findings, the lower appellate Court granted the declaration of title and possession, asked for by the plaintiff in the suit. As regards damages, the lower Court left it open to be decided under Order 21, Rule 12, Civil Procedure Code. In the result, the appeal was allowed and the suit was decreed as prayed for.
9. Aggrieved by the judgment and decree of the lower appellate Court, the defendants have preferred the above second appeal.
10. The only question that has to be decided in the second appeal is as to whether the sale in favour of Shanmugham Pillai is benami for the benefit of the first defendant's family, or not. If the case of benami is proved by the first defendant and the other defendants who support his case, the plaintiff cannot derive any title under Exhibit A-1 sale by the grandsons of Shanmugham. We have to see whether the benami nature of Exhibit A-1 set up by the defendants is true.
11. Thiru A. Sundaram Ayyar, the learned Counsel appearing for the appellants-defendants, submitted that this Court has ample power to interfere, at the second appellate stage, under Section 100, Civil Procedure Code, when the question involved is one of a right construction of a document of title, or of a document which forms the foundation of the suit, or of a legal inference from a document; in such cases, the question is one of law and as such the second appellate Court can interfere with the finding on the same. According to Thiru A. Sundaram Ayyar, the inference has to be drawn from the proved facts. Thiru A. Sundaram Ayyar also cited the decision in Thangavi Ammal v. Gurunatha Goundan (1963) 2 M.L.J. 151, where Ramakrishnan J., after discussing about the ingredient to constitute a benami transaction, held that his discussion was sufficient to show that:
The judgment of the lower appellate Court involves an error of law in giving a decision about the benami title after basing its finding only on one aspect of the matter exclusively, and ignoring the fact that all the other tests usually-applied for that purpose are in favour of the plaintiff and against the first defendant.
On such a finding, the learned Judge set aside the finding of the lower appellate Court.
12. Thiru A. Sundaram Ayyar further elaborately argued with regard to the various aspects and ingredients necessary for a 'benami transaction' and submitted that it has been clearly proved that the transaction under Exhibit A-1 is a benami transaction, and that Shanmugham Pillai cannot be held as the real owner of the suit property.
13. Thiru M.S. Venkataramier, the learned Counsel for the respondent-plaintiff, submitted that there cannot be any hard and fast rule as to which ingredient is necessary to constitute a 'benami transaction' and such thing will differ from case to case, depending on facts and circumstances of each case. According to Thiru M.S. Venkataramier, the lower appellate Court has properly drawn the inference from the proved facts and there s absolutely no question of law as such or miscarriage of justice, for this Court to interfere with the finding arrived at by the lower appellate Court.
14. I have been taken though the judgments of the Courts below and also the evidence on record.
15. In Jayadayal Podder v. Bibi Hazra : 2SCR90 , it has been held:
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 on 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. Though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question no absolute formulse or acid test, uniformally 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, 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.
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.
16. Thiru A. Sundaram Ayyar, learned Counsel appearing for the appellants, also cited the decision in A. S. Battacharjee 65 C.W.N. 1175 v. A. K. Roy 65 C.W.N. 1175, for the proposition that motive is one of the elements usually taken into consideration in deciding the question of benami, but it is not such an element that its presence or absence would necessarily be decisive of the matter.
17. In Krishna v. Ganapathi : AIR1955Mad648 , a Bench of this Court has held:
In order to find out whether a transaction is benami one must have regard to the following facts, viz., (i) the source from which the purchase money was derived ; (ii) the possession of the property, i.e., (a) the party in possession, and the nature and character of his possession ; (b) whether possession Was taken after the alleged gift or purchase--if not taken, why not; (iii) the petition of the parties and their relation to one another, (iv) the circumstances, pecuniary or otherwise, of the alleged transfer, (v) his motive in making the alleged transfer ; (vi) the custody and production of the title deed ; and (vii) the previous and subsequent conduct of the parties. But it must be noted that each of these circumstances taken by itself is of no particular value and affords no conclusive proof of the intention to transfer the ownership from one person to the other. But a combination of some or all of them and a proper weighing and appreciation of their value would go a great way towards indicating whether the ownership has been really transferred, or where the real title lies.
18. Thus, it is clear that in order to find whether a transaction is benami or not all the various circumstances have to be cumulatively taken into consideration instead of relying on one or two of the circumstances necessary in holding that a transaction is benami.
19. The lower appellate Court, after properly discussing the evidence and the circumstances of the case and also adverting to the fact that Exhibit B-1 was written by Krishnaswami, one of the sons of the first wife of the first defendant, came to the conclusion that the motive alleged for the benami transaction is not true. The lower appellate Court has also rightly observed that the fact that the suit site was the subject-matter of the partition, is a circumstance against the case of the first defendant. As regards possession the lower appellate Court elaborately discussed the close relationship between the parties , i.e., the first defendant and Shanmugham Pillai and the fact that Shanmugham Pillai was permanently residing at Madras, and found that possession by the first defendant and his father cannot be considered as a circumstance against the case put forward by the plaintiff. Even as regards the possession of the original title deeds with the first defendant's family, the lower appellate Court discussed the same and has come to the conclusion that mere possession of the title deeds, considering the close relationship between the parties and the management of the suit property by the first defendant and his father, will not in any way advance the case of benami set up by the first defendant. On the question of consideration for the sale, the lower appellate Court on a discussion of the evidence of D. W. 1 that his father paid the consideration, cannot be accepted, as true, as it is interested and the same is not supported by independent evidence. The main points relied on by the first defendant Were that the suit property was not included in the will executed by Shanmugham Pillai and that the suit property was made the subject-matter of the partition in the first defendant's family. The lower appellate Court has rightly observed that no particular importance can be attached to the omission of this property in the Will of Shanmugham Pillai but that, on the other hand, the inclusion of the property in the deed of partition in the first defendant's family falsifies the case of the first defendant that this property was intended to benefit the second wife's son of the first defendant's father. Thus, the lower appellate Court, after properly discussing all the evidence on record and the attendant circumstances of the case, drew the inference that the case of benami set up by the first defendant is not true. In Jayadayal Podder v. Bibi Hazra : 2SCR90 , already noticed, the Supreme Court, while enumerating the indicia for the purpose of finding out whether a certain transaction is benami, also pointed out that those indicia are not exhaustive and their efficacy varies according to the facts of each case. Thus, it is clear whether a particular circumstance is the important one, has to depend upon the facts and circumstances of a given case. There cannot be any generalised theory as to whether one particular circumstance is important or not. Taking into consideration the cumulative effect of all the facts and circumstances of the present case, the lower appellate Court has come to the conclusion that Exhibit B-1 is not a benami transaction, that Shanmugham Pillai got the right in the suit property under the said purchase and that the plaintiff has validly purchased the right, title and interest from the heirs of Shanmugham Pillai. I am in complete agreement with the findings arrived at by the lower appellate Court. There is absolutely no question of law, as such, involved in this second appeal for me to interfere with the said findings of fact, arrived at by the lower appellate Court on a proper appreciation of the evidence on record.
20. In these circumstance, the second appeal is dismissed. There will be no-order as to costs. No leave.