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Judgment
N.V. Balasubramanian,J.
This appeal is directed against the judgment and decree passed in a suit for partition in O.S.No.51 of 1986 on the file of learned Subordinate
Judge, Namakkal.
The appeal is preferred by the first appellant/first defendant in the suit and she died during the pendency of the appeal and her legal
representative has been brought on record as the second appellant. As far as the respondents/plaintiffs are concerned, the first respondent is
reported to be dead and the second respondent who is already on record is treated as her legal representative.
The plaintiffs instituted the suit claiming partition of the plaint schedule properties and the suit has been dismissed in respect of movable
properties which are shown as item Nos.4 to 7 in the plaint schedule. The plaintiffs have not preferred any independent appeal or cross appeal in
so far as the dismissal of the suit with reference to items Nos.4 to 7 in the plaint schedule is concerned.
The suit has been filed by the respondents on the basis that the first plaintiff is the wife of one Krishna Padayachi who died on 3.11.1985 and
the second plaintiff is their daughter. The deceased first defendant, the first appellant herein, is the second wife of Krishna Padayachi. The suit was
filed on the basis that the plaint schedule properties are the separate properties of Krishna Padayachi and in so far as item No.2 of the suit
properties is concerned, it was purchased in the name of the first appellant by Krishna Padayachi as benami from and out of the retirement benefits
received on retirement from service. The suit has been filed claiming that the plaintiffs would be entitled to 2/3rd share in all items of suit properties.
The first defendant/first appellant in her written statement raised several defenses and it is not necessary to consider various defenses raised by
the first defendant for the purpose of considering the appeal. The trial Court has found that the first plaintiff is the first wife and the first defendant is
the second wife of Krishna Padayachi and the second plaintiff is the daughter of Krishna Padayachi through the first plaintiff. The trial Court
noticed the prenuptial settlement deed executed by Krishna Padayachi and his father in favour of the first defendant dated 12.2.1944 (Ex.B-1) and
under the terms of the settlement, the first defendant was given the right to enjoy the properties covered in the settlement during her life time without
the power of alienation. The settlement also provides for the mode of devolution on the death of first defendant. Learned trial Judge found that all
the properties except those properties against which the suit has been dismissed were separate properties of Krishna Padayachi and held that the
plaintiffs would be entitled to 2/3rd share in0 item Nos.2 and 3AA of the plaint schedule and accordingly granted preliminary decree. In so far as
suit properties in item Nos.1 and 3A are concerned, the trial Court held that the plaintiffs would be entitled to claim partition only after the life-time
of the first defendant. Learned trial Judge granted decree as prayed for in so far as item No.2 of the plaint schedule properties is concerned on the
basis that the said property was purchased benami in the name of the first defendant by Krishna Padayachi and the first defendant was the
benamidar and Krishna Padayachi was the beneficial owner of the property and hence, that property is also available for partition. It is against the
judgment and decree of the learned trial Judge, the present appeal has been preferred.
Mr. B.T. Seshadri, learned counsel for the appellant submitted that the first defendant, who was the sole appellant, died during the pendency of
the appeal. He submitted that on the basis of the prenuptial settlement deed dated 12.2.1944 (Ex.B-1) the properties of Krishna Padayachi
devolved on the first defendant. Learned counsel has stated that the view of the trial Court that the limited right of the first defendant would not
become her absolute right u/s 14 of the Hindu Succession Act is also legally sustainable as the said properties were settled in favour of the first
defendant even before her marriage and there was no pre-existing right of maintenance at the time of settlement.
The only point raised by Mr.B.T.Seshadri, learned counsel was that the trial Court was not correct in holding that item No.2 of the suit
properties was held by the first defendant as binomial of her husband Krishna Padayachi. He also submitted that the trial Court has arrived at the
conclusion regarding benami nature of the property by placing the burden of proof on the first defendant. Learned counsel referred to the
averments made in the plaint as well as the evidence of the first plaintiff who was examined as P.W.1 and also the sale deed dated 1.10.1973
(Ex.B-2) and the receipts for the payment of sale consideration and the recitals in the deed of sale and the passing of consideration under the said
deed of sale, and submitted that the first defendant had sufficient means to purchase the property as her deceased husband and her father-in-law
had settled valuable items of properties in her favour to be enjoyed by her during her lifetime. Learned counsel submitted that the case pleaded by
the plaintiff that the property was purchased out of the retirement benefits received by Krishna Padayachi is not correct as the evidence of P.W.1
shows that Krishna Padayachi had retired from service in the year 1982, but whereas the property was purchased on 1.10.1973 by the first
defendant prior to his retirement. Learned counsel submitted that the first defendant has produced the original document of sale before the Court
and there is absolutely no evidence from the plaintiffs to establish that item No.2 of the suit properties was purchased benami in the name of the
first defendant by Krishna Padayachi. Learned counsel in support of his submissions relied upon the following decisions:- (1) PONNUSWAMY
NADAR v. NARAYANAN NADAR 1976 I MLJ 1, (2) KISTAPPA NAICKER v. ELUMALAI NAICKER 89 L.W. 471, (3) Sundaram
Nadar Vs. Sukumaran,
Mr.R.Subramanian, learned counsel for the respondent, in his fairness, has not disputed the proposition of law canvassed by the learned counsel
for the appellant. We also find that learned trial Judge has committed a serious mistake in his view on the benami nature of the transaction. We find
that he committed the mistake by placing the onus of proof on the first defendant to establish that the transaction is not benami as it is well settled
that the onus of proof to establish the benami nature of a transaction is on the person who pleads the same. We find that the plaintiffs have not let in
any evidence to establish the benami transaction. Learned trial Judge has drawn his own conclusion without any evidence in support of his
conclusion that the property was purchased benami by Krishna Padayachi in favour of his wife, first defendant. We find that the case of the plaintiff
was that the Krishna Padayachi purchased the property in the name of the first defendant out of the money received at the time of his retirement.
The evidence of P.W.1 discloses that Krishna Padayachi retired in the year 1982, but the first defendant purchased the property much prior to his
retirement in the year 1973. She has produced the original sale deed. There is absolutely no evidence to show that Krishna Padayachi was in
beneficial possession and enjoyment of the property. On the other hand, the first defendant has proved that she had the necessary resources to
purchase the property and she was in beneficial possession and enjoyment of the property. We also find that there was no issue framed on the
question of benami and we find no difficulty in setting aside the finding of the learned trial Judge regarding item No.2 of the suit properties and hold
that there is no evidence to show that it was purchased benami by Krishna Padayachi in favour of his wife, first defendant in the suit and it was her
absolute property.
Mr.R.Subramanian, learned counsel for the respondent submitted that the decree granted by the trial Court has to be modified in view of the
fact that a portion of the properties covered in item No.2 of the plaint schedule forms part of the properties covered in item No.1 of plaint
schedule. We find that the submission of Mr.R.Subramanian, learned counsel for the respondent is acceptable. We find from a conjoint reading of
the properties described in item Nos.1 and 2 of plaint schedule, in so far as lands are concerned, the survey numbers are same and in item No.1,
2/3rd of the same are claimed to be the properties belonging to Krishna Padayachi and in item No.2, 1/3rd of the same are claimed to be the
properties of Krishna Padayachi. But the plaintiffs have claimed item No.2 separately as the first defendant purchased 1/3rd share in the lands in
Survey Nos.330/3, 330/4 and 330/5 by the deed of sale dated 1.10.1973 (Ex.B-2). The first defendant has also produced, during the course of
cross-examination, the deed of partition dated 30.3.1981 between Krishna Padayachi and his wife, first defendant and Krishna Padayachi''s
brother''s son Manoharan and in the said deed of partition, Manoharan who is the son of Veerappa Padayachi, one of the brothers of Krishna
Padayachi was allotted certain properties. He was allotted lands in Survey No.330/5 of an extent of 10 cents and in survey No.330/3 33 cents out
of 51 cents. In so far as Krishna Padayachi and Govindammal are concerned, they were allotted jointly the lands in survey No.330/3 and they
were allotted 18 cents in survey No.330/4 after excluding one cent for common enjoyment in survey No.330/5. We have already referred to the
prenuptial settlement dated 12.2.1944 wherein Krishna Padayachi and his father Venkatachala Padayachi settled 1/3rd interest of Krishna
Padayachi in the lands in survey Nos.330/3, 330/4 and 330/5. The first defendant Govindammal has purchased 1/3rd interest of Narayanasami
Padayachi, brother of Krishna Padayachi in the said lands. However, in the deed of partition effected between Krishna Padayachi and his
brother''s son Manoharan in which the first defendant Govindammal was also a party both Krishna Padayachi and Govindammal were allotted
properties in the ratio mentioned earlier. Since the partition deed has not been challenged and a portion of the properties has been allotted in favour
of another family member, who is not a party in the suit, it would not be permissible for the plaintiffs to claim the entire property described in Item
No.1 and part of item No.2 of plaint schedule as if they belonged to Krishna padayachi. Since Krishna Padayachi and Govindammal were allotted
properties and Govindammal died issueless leaving behind a will in favour of the second appellant, the share of Krishna Padayachi in item No.1
and part of item No.2 of the plaint schedule which devolved on Govindammal would go to the second appellant. In so far as the house property
which is described in item No.2 of the plaint schedule is concerned, it was not the subject matter of partition and since it was the property of the
first defendant Govindammal, it would go to the second appellant. Since the first defendant Govindammal is now dead, the decree granted by the
trial Court is modified as under:- (1) In item No.1 and in the lands described in item No.2 in survey Nos.330/3, 330/4 and 330/5 the plaintiffs
would be entitled to half share in the said properties. (2) The house property described in item No.2 is not available for partition on the ground that
it was the absolute property of the first defendant Govindammal. (3) In so far as the properties covered in item Nos.3A and 3AA are concerned,
the plaintiffs would be entitled to 2/3rd share. Consequently, the appeal stands allowed, but the judgment and decree of the trial Court stands
modified as indicated above. No costs.