Thangayi Ammal v. Gurunatha Goundan — 1962 DIGILAW 355 (MAD)

JUDGMENT Thangayi Ammal, the plaintiff in O.S. No. 725 of 1956 on the file of the District Munsif's Court, Sankaridrug at Salem, filed a suit for declaration of her title to the suit property and for recovery of mesne profits and for costs. The main plea of the contesting defendants, which alone requires to be considered for the purpose of this Second Appeal, is the plea raised by D-1 Gurunatha Goundan (who kept the plaintiff as a concubine for many years) that the purchase of the property under the sale deed Exhibit A-2 dated 6th March, 1941, for Rs. 200, in the name of the plaintiff, was benami for D-1. The trial Court found that the plaintiff paid the consideration for the sale deed, that she was in possession of the property and that the allegation made by D-1 regarding motive for the benami transaction was not proved. Therefore the suit was decreed in favour of the plaintiff. The defendants appealed. The learned Subordinate Judge who heard the appeal upheld the finding of the trial Court regarding the possession of the property with the plaintiff and regarding the failure of the first defendant to establish an adequate motive for taking a benami purchase. He also found that possession of the title deeds were also with the plaintiff and that she had been paying kist for the property after the transfer of patta in her name. However he differed from the finding of the trial Court regarding the payment of consideration, and after accepting the evidence of D.W. 1 and D.W. 2 and rejecting the evidence of P.W. 2, which was accepted by the trial Court, he came to the conclusion that consideration lor the sale was paid by the first defendant. Then he observed that there was no plea or evidence in the present case to show that when D-1 advanced the consideration for the sale he intended to make a gift of the property to the plaintiff. After stating the position thus the learned Subordinate Judge expressed the view that on a consideration of the entire evidence, and the circumstances and probabilities of the case, the sale under Exhibit A-2 was benami for D-1 and allowed the appeal and dismissed the suit with costs. This Second Appeal is filed by the plaintiff. Learned counsel Mr. After stating the position thus the learned Subordinate Judge expressed the view that on a consideration of the entire evidence, and the circumstances and probabilities of the case, the sale under Exhibit A-2 was benami for D-1 and allowed the appeal and dismissed the suit with costs. This Second Appeal is filed by the plaintiff. Learned counsel Mr. M. S. Venkatarama Iyer, who appeared for the appellant before me, urged that after giving a finding in favour of the plaintiff regarding the several circumstances which have to be taken into account for deciding whether a person is benami or not, viz., motive for a benami transfer, possession of the property, possession of the documents and title deeds, the Lower Appellate Court held that the payment of consideration by D-1 for the sale, in the absence of evidence to prove that he intended to benefit the plaintiff, was sufficient to support a finding about the benami nature of the transaction. Learned counsel for the appellant referred to me a series of decisions which have laid down that the source of the consideration, though no doubt an important test for the finding about the benami, is not the sole test, and urged that a decision which proceeds on the footing of treating it as the sole test, without taking into consideration the surrounding circumstances, must be considered to be bad in law. Thus in Ram Narain v. Muhammad Hadi1, the Privy Council has stated: “The first Court had attributed too much to the fact that the plaintiff had supplied the purchase money, an important fact in most of the cases raising the question of benami, or not benami, but not the only test of ownership.” In Tulasi Ammal v. Official Receiver, Coimbatore2, Venkatasubba Rao, J., has expressed the view that in deciding the question whether or not a particular transaction is benami, the source from which the money comes is no doubt a valuable test, but to regard it as a sole and conclusive criterion is clearly wrong. In Sitamma v. Sitapatirao3 a Bench consisting of Varadachariar and King, JJ., at page 10 observed: “It is true that in the Indian law the English rule as to presumption of advancement has not been adopted, but section 82, Trusts Act, as well as the observations of the Judicial Committee in Mt. In Sitamma v. Sitapatirao3 a Bench consisting of Varadachariar and King, JJ., at page 10 observed: “It is true that in the Indian law the English rule as to presumption of advancement has not been adopted, but section 82, Trusts Act, as well as the observations of the Judicial Committee in Mt. Bilas Kunwar v. Desraj Ranjit Singh4, recognise that money may have been contributed by another towards a purchase with the intention of giving a beneficial interest to the person in whose name the purchase is made. The relationship of husband and wife between the person who contributes the money and the person in whose name the sale is taken will be a very important factor in determining whether the transaction was really meant for the benefit of the wife or not.” In Thirumal Nadar v. Pichai Ammal5, a Bench of this Court consisting of Chief Justice Gentle and Justice Rajamannar expressed the view that the consideration for a purchase has been found by the husband is not conclusive against the wife in whose name the property had been purchased. It is only when the purchase is unexplained by other proved or admitted facts that the conclusion should follow that the transaction is benami for the husband. In Khatoon Bee v. Ammena Bi6, the same view is reiterated that payment of consideration is not conclusive but is only a vital test for the purpose of establishing the benami nature of a transaction. In the present case, as I mentioned above, the Lower Appellate Court has given a finding that patta for the property is with the plaintiff, that she has been paying the kist, that the title deeds were with her and the motive alleged by the first defendant that he wanted to screen the property from his sons was found not proved. The only finding that remained for the Lower Appellate Court to base its conclusion was the payment of consideration by D-1. Learned Counsel for the respondents urged that the contention of the plaintiff throughout had been that she paid the consideration and that this has not been upheld by the Lower Appellate Court. But that will still make it necessary for the Lower Appellate Court, to go into the question whether the case about benami can be determined solely on the finding about payment of consideration, without paying proper heed to the surrounding circumstances. But that will still make it necessary for the Lower Appellate Court, to go into the question whether the case about benami can be determined solely on the finding about payment of consideration, without paying proper heed to the surrounding circumstances. If these surrounding circumstances indicate that the payment of consideration, though by the husband or as in this case by paramour; was with the intention of benefiting the wife or concubine as the case may be, surely that will justify a finding of title in favour of the plaintiff even if the plaintiff's plea that she paid the consideration has not been proved. The above discussion is 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. Therefore the finding is one which has got to be set aside. The learned counsel for the respondents urged that the case might be remanded and a fresh finding called for, but there is adequate material in the record for the purpose of arriving at a conclusion even on this point that the consideration was paid by the first defendant with the intention to benefit the concubine. In paragraph 14 of the judgment of the Lower Appellate Court the learned Subordinate Judge has observed that the plaintiff had been in possession of the property within 12 years of the suit. In fact the finding in the earlier paragraphs is that she was throughout in possession of the property and that this was made possible probably because she was the concubine of the first defendant with whom she was living amicably until 2½ years ago. It is obvious that D-1, who advanced the consideration, permitted the plaintiff, who was his concubine and with whom he was living amicably till 2½ years ago, to enjoy the property at all material times ever since the purchase in 1941. This -will constitute a clear intention on his part to benefit the plaintiff in whose name the property was purchased. This -will constitute a clear intention on his part to benefit the plaintiff in whose name the property was purchased. Because of this, I do not think it necessary to call for a fresh finding from the Lower Appellate Court about the benami nature of the transaction. I am satisfied, in these circumstances, that the finding of the trial Court is right and that the finding of the Lower Appellate Court should be set aside. The Second Appeal is allowed. The decree of the Lower Appellate Court is set aside. ‘The decree of the Trial Court is restored. The appellant will get her costs in this Court as well as in the Lower Appellate Court. K.S.-----Appeal allowed.