Minor Balamurugan vs T. Selvaraj

R.S. Ramanathan, J.—The First Defendant in O.S. No. 454 of 1985 on the file of the Sub-Court, Sankari is the Appellant in A.S. No.908 of 1993 and the 4th Defendant in the same Suit is the Appellant in A.S. No.880 of 1995. The Respondents 1 to 5 filed the above Suit for Partition of ? share in the Suit property. The Suit was decreed as prayed for and aggrieved by the same these two Appeals are filed by the respective Appellants.

The case of the Respondents 1 to 5/Plaintiffs as seen from the Plaint is as follows:

The Respondents 1 to 5/Plaintiffs are the children of the First Defendant namely the Appellant in A.S. No.908 of 1993 through his wife Dhanabakkiam Ammal. At the time of marriage of Dhanabakkiam Ammal with the 1st Defendant lot of seer were given and from and out of the presents given at the time of marriage the said Dhanabakkiam Ammal purchased the first item of the Suit property on 26.4.1965 and purchased the second item on 6.3.1967. She also installed a rice mill in the second item of the Suit property and for that purpose she executed a mortgage in favour of the Second Defendant on 29.6.1969 and after the death of Dhanabakkiam Ammal, the 1st Defendant her husband leased out the same to the 3rd Defendant. The Plaintiff''s mother Dhanabakkiam Ammal died on 12.5.1982 and the Plaintiffs and the 1st Defendant are her Legal Representatives and therefore the Plaintiffs are entitled to ? shares. The First Defendant married one Babysaroja on 10.2.1987 and the 4th Defendant was born to the 1st Defendant through Babysaroja and as the 4th Defendant claimed to be the son of the 1st Defendant, the 4th Defendant is also impleaded as one of the parties and no marriage took place between the First Plaintiff and Babysaroj a and as the Plaintiffs being the Legal Representatives of the 1st Defendant, the Suit was filed for partition of ? share.

The First Defendant filed statement stating that the 1st Defendant was doing business in cotton seeds and even at the time of marriage with Dhanabakkiam Ammal, he was doing business and at the time of marriage no seer or gold jewels were presented to his wife Dhanabakkiam Ammal and Dhanabakkiam came from a poor family and her parents did not have the money to provide the seer and jewels as stated in the Plaint and the first and the second item of the properties were purchased from the out of his savings and Dhanabakkiam Ammal did not have any separate income.

The 1st Defendant stated that Dhanabakkiam Ammal was not the owner of those properties and those properties were purchased from the income earned by the 1st Defendant and he installed the rice mill and at that time she was living alone with her brother. The properties were purchased in the name of his wife Dhanabakkiam Ammal and after the death of Dhanabakkiam Ammal, the license of the rice mill was transferred in his name. He further stated that he also repaid the mortgage debts and the mortgage in favour of 2nd Defendant was not true and without consideration. The 2nd Defendant is none other than the 1st Defendants'' sisters husband and 1st Defendant incurred debt of Rs.8,000/- for performing the marriage of his daughters and the properties are the properties of the 1st Defendant and therefore, the Plaintiff cannot claim any share over the same.

The Second Defendant filed a statement stating that the Plaintiff''s mother mortgaged the second item of the property with him on 29.6.1969 and he filed O.S. No.141 of 1985 before the Sub-Court, Sankari to release the mortgage and therefore the Suit is not maintainable.

The 3rd Defendant filed a statement stating that he is living as Tenant in the second item of the property and he made some improvements by spending Rs.20,000/- and that he had taken the property on lease for a period from 15.9.1983 to 15.9.1989 and he is paying rent to the 1st Defendant from whom he has taken the property on lease and therefore, the Suit is liable to be dismissed against the 4th Defendant. The 4th Defendant filed a statement denying the allegation that at the time of marriage of Dhanabakkiam Ammal with the 1st Defendant she was presented with gold jewels and seer and Dhanabakkiam Ammal came from a poor family and she did not have any means to purchase the properties in Item Nos.1 & 2 and the 1st Defendant purchased the properties from and out of his joint family income in the name Dhanabakkiam Ammal and the properties were purchased in the name of Dhanabakkiam Ammal only to defeat the claims of the brothers of the 1st Defendant and the mortgage in favour of the Second Defendant was not true and the properties were treated as a joint family of 1st Defendant and therefore, the Plaintiffs are not entitled for the relief prayed for.

The 1st Defendant filed additional statement stating that the 4th Defendant has no right over the Suit properties and he is an unnecessary party and therefore the Suit is liable to be dismissed for misjoinder of parties.

On the basis of the above pleadings the Trial Court formulated the following issues:

Whether the Plaintiffs are entitled to ? share in the Suit properties ?

Whether the Suit properties were owned by the Plaintiff''s mother or by the 1st Defendant and whether the Plaintiff''s mother was only a benamidar ?

Whether the Defendants 2 & 3 are necessary parties to the Suit ?

To what relief the Plaintiffs are entitled to ?

An additional issue was framed as to whether the 4th Defendants is a necessary party ?

On the side of the Plaintiffs PWD 1 to PWD 3 were examined and 57 Exhibits were marked. On the side of the Defendant, the 1st Defendant himself examined as DW1. The mother of the 1st Defendant examined herself as DW2 and marked 36 documents.

The Trial Court tried Issue No.2 and held that the Suit properties were the properties of Dhanabakkiam Ammal and she was not the benamidar and the 1st Defendant was not the owner of those properties. Issue No.3 was answered holding that the Second Defendant was a necessary party and the 3rd Defendant was not a necessary party and the 3rd Defendant was not the lessee.

Issue No.1 was answered in favour of the Plaintiff and held that the Plaintiffs are entitled to ? shares as the property was owned by their mother Dhanabakkiam Ammal. The Additional Issue No.1 was answered holding that the 4th Defendant was not a necessary party. In the result the Suit was decreed as prayed for subject to the mortgage in favour of the Second Defendant. Aggrieved by the same these two Appeals were filed.

The learned Counsel for the Appellants in both the Appeals submitted that the Trial Court without properly appreciating the evidence of DW1 erred in holding that Dhanabakkiam Ammal was the owner of the properties. The learned Counsel submitted that no acceptable evidence was let in on the side of the Plaintiff to prove that Dhanabakkiam Ammal purchased the properties and PW1 evidence would also prove that Dhanabakkiam Ammal came from a poor family and she would not have been given lot of seer and jewels as claimed by the Plaintiffs and though her brother was examined as PW3, he also failed to produce any documents to substantiate the case of the Plaintiff that his family provided Dhanabakkiam Ammal with seer and jewels at the time of marriage and admittedly, the property was dealt by 1st Defendant as his separate property and after the death of Dhanabakkiam Ammal he transferred the license of the rice mill in his name and let out the property to the 3rd Defendant and this would prove that the properties were treated as properties of the 1st Defendant and Dhanabakkiam Ammal was only a benamidar of the properties and this was not properly appreciated by the Court below. The learned Counsel for the Appellant further submitted that at the time of purchase of the suit properties Dhanabakkiam Ammal was not having funds to purchase those properties and to install a rice mill and she was only a housewife and DW1 has also spoken about his avocation and those were not properly appreciated by the Trial Court.

Mr. Manoharan learned Counsel for the 9th Respondent submitted that the 9th Respondent was impleaded in the Appeal as he purchased the shares of the Plaintiffs 3, 4 and the 1st Defendant and therefore, he is entitled to � share in the property. The learned Counsel further submitted that admittedly the properties were purchased in the name of Dhanabakkiam Ammal and when the husband claims that the wife is only a benamidar and he is the owner, the burden is on him to prove the same relying upon the Judgment of a Division Bench of the Hon''ble Supreme Court in Valliammal (D) by L.Rs. v. Subramaniam and others, 2004 (5) CTC 60 (SC) : 2004 (7) SCC 233, in support of his contention.

He further submitted that PW3 the brother of Dhanabakkiam Ammal gave evidence about the presents made to Dhanabakkiam Ammal at the time of marriage and the subsequent events of treatment of properties would also prove that the properties were dealt with by Dhanabakkiam Ammal as an absolute owner.

Mr. Manohanran learned Counsel for the 9th Respondent submitted that after the purchase of the Suit properties, Dhanabakkiam Ammal mortgaged the properties under Ex.B3 and discharged the same under Ex.B4. He also brought to my notice about the endorsement under Ex.B4 wherein it is clearly stated that the Mortgage Deed was discharged by Dhanabakkiam Ammal. Further the license of the rice mill was in the name of Dhanabakkiam Ammal and only after the death it was transferred in the name of the 1st Defendant and the 1st Defendant also admitted his ? share and sold his share in favour of the 9th Respondent and it was also proved that the properties were owned by Dhanabakkiam Ammal.

He therefore submitted that having regard to the Judgment referred to above the 1st Defendant failed to prove that he provided the consideration for the properties purchased in the name of his wife and in the absence of such evidence the Court has presumed that the properties stood in the name of his wife belonged to her and the Trial Court has considered all these aspects and rightly decreed the Suit.

On the basis of the above submissions the following points for consideration arises in this Appeal:

Whether the Suit properties were the properties of Dhanabakkiam Ammal or the absolute properties of the 1st Defendant/Appellant in A.S. No. 908 of 1993 ?

Admittedly, the properties were purchased in the name of Dhanabakkiam under Exs.A1 & A2. The case of the Plaintiff is that at the time of the marriage of Dhanabakkiam, she was presented with jewels and other seer and from and out of that she purchased the Suit properties. It is the contention of the Appellants that PW1 evidence did not support the case of the Plaintiff and therefore the Court below ought to have decreed the Suit. According to me PW1 was not competent to give any evidence regarding the source of income of Dhanabakkiam as admittedly he was only 12 years old at the time of purchase of those properties by his mother.

On the other hand PW3 the brother of Dhanabakkiam gave evidence and his evidence was not at all shattered in cross-examination, Further when the properties are purchased in the name of wife and the husband claims that his wife is only a benamidar and he is the real owner of the property, then the onus lies on the husband to prove the same. This has been laid down by the Hon''ble Supreme Court in Valliammal (D) by L.Rs. v. Subramaniam and others, 2004 (5) CTC 60 (SC) : 2004 (7) SCC 233. In that Judgment the Hon''ble Supreme Court held as follows:

"12. There is a presumption in law that the person, who purchases the property is the owner of the same. This presumption can be displaced by successfully pleading and providing that the document was taken benami in the name of another person for some reason, and the person whose name appears in the document is not the real owner, but only a benami. Heavy burden lies on the person who pleads that the recorded owner is a benami-holder.

This Court in a number of Judgments has held that it is well established that burden of providing that a particular sale is benami lies on the person, who alleges the transaction to be a benami. The essence of a benami transaction is the intention of the party or parties concerned and often, 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. Refer to Jaydayal Poddar v. Bibi Hazra 1974 (1) SCC 3; Krishnanand Agnihotri v. State of M.P., 1977 (1) SCC 816; Thakur Bhim Singh v. Thakur Kan Singh, 1980 (3) SCC 72; Pratap Singh v. Sarojini Devi, 1994 Supp (1) SCC 734; Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S. Shah, 1996 (4) SCC 490. It has been held in the Judgments referred to above that the question whether a particular sale is a benami or not, is largely one of fact, and for determining the question no absolute formulas or acid test, uniformly applicable in all situations can be laid. After saying so, this Court spelt out the following six circumstances which can be taken as a guide to determine the nature of the transaction:

(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."

As per the Guidelines given by the Hon''ble Supreme Court to determine the nature of transaction in this case it has been proved by the Plaintiffs that the properties were treated as a separate property of Dhanabakkiam as evidence by Ex.B3 Mortgage Deed and Ex.A5. Ex.B4 would also prove that Dhanabakkiam was the owner as she discharged the mortgage by making the payment due under Mortgage Deed Ex.B3. The license of the Rice Mill was in her name. The reasons stated by the 1st Defendant for purchasing the Suit properties in the name of his wife cannot also be accepted and not evidence was produced by him to prove that he and his brothers lived as joint family members. Even assuming that the 1st Defendant and his brothers were members of joint family, admittedly they partitioned their properties in the year 1976 and even thereafter, no attempt was made by the 1st Defendant to transfer the license or the properties in his name and the properties were enjoyed by Dhanabakkiam till she died in the year 1982. PW3 the brother of Dhanabakkiam also gave evidence regarding the source for purchase of the property. Therefore having regard to the possession of the property and the way in which the mortgages were created by Dhanabakkiam and the source for the purchase of the properties as spoken to by PW3, the Trial Court rightly held that the properties are the absolute properties of Dhanabakkiam and the 1st Defendant failed to prove that it was purchased in benami name of Dhanabakkiam.

In the Judgment U. Bhaskaran v. Bank of India and others, 2004 (1) CTC 488 (DB), the Hon''ble Division Bench relied upon the Judgment of the Supreme Court in Nand Kishore Mehra v. Sushila Mehra, 1995 (2) CTC 356 (SC), and held that when the properties are purchased in the name of wife or unmarried daughter a presumption can be raised that the properties are purchased for the benefit of wife or unmarried daughter as the case may be and such presumption is rebuttable and when any other person claims absolute right, he has to establish that the persons name in the documents is not the real owner he is only a benamidar.

As stated supra in this case the 1st Defendant failed to discharge the onus on him. Hence, the point for consideration is answered against the Appellant and I hold that the Trial Court rightly held that the properties were owned by Dhanabakkiam and she was not benamidar for the 1st Defendant.

In the result, the Judgment and Decree of the Trial Court are confirmed and the Appeals are dismissed. No cost.