O. R. Dhanalakshmi Animal v. O. R. Satyamurthi — 1998 DIGILAW 1260 (MAD)

Judgment : 1. This appeal has arisen out of the judgment and decree dated 20.10.1982 in O.S.No.285 of 1981 on the file of the I Additional Subordinate Judge, Madurai. 2. The suit is for partition of the suit properties into 814 sharefor plaintiff and l/14th share for each of the defendants and for separate possession of 814th share in items 1 and 2. To direct the appointment of aCommissioner for that purpose and to direct the first defendant to pay to the plaintiff his 814th share in the income of items 3 and 4 and for costs, andother reliefs. 3. According to the plaintiff, his father Rama Rao his brother Chandrasekaran and himself were members of the joint family. The second defendant executed a release deed and went away from the family. The suit properties are joint family properties. Father Rama Rao died on 6.8.1978. The plaintiff and his father were carrying on business at Madurai, Nagapattinam, the father started a business under the name and style of “Dhanam Soap Works”. Which was a joint family business, on 30.4.1966, the plaintiffs father purchased the western half of item No. 1 of the suit property in his name and the other half of the suit property benami in the name of the first defendant. On 14.7.1970, the second defendant released his interest in the joint family properties by a registered deed of release after receiving suitable consideration. Thereafter, the father started another business under the name and style of “Lakshmi Chem Dyes” in Madurai. Accounts were opened in Indian Bank and United Commercial Bank, Madurai in the name of the first defendant. There were bank accounts in United Commercial and Lakshmi Vilas Bank at Kancheepuram, in the name of Dhanam Chem Dyes, The funds were joint family funds, The first defendant was only benamidhar. She did not have any independent source for business. The first defendant has not invested any amount for the business. Defendants 3 to 6 were married and the marriage expenses were made by the family. The plaintiff is entitled to 814th share in the suit property. 4. The first defendant filed a written statement. The first defendants parents gave sixty sovereigns of jewels as Sridhana at the time of the marriage. She was having milk vending business and tailoring business also. Rama Rao had no income at all. The plaintiff is entitled to 814th share in the suit property. 4. The first defendant filed a written statement. The first defendants parents gave sixty sovereigns of jewels as Sridhana at the time of the marriage. She was having milk vending business and tailoring business also. Rama Rao had no income at all. He was employed as chemical dyer and got only Rs.80 per month. As there was no sufficient income for maintenance of the family at Madurai, the family was shifted to Nagapattinam. The first defendant sold ten sovereigns of gold jewels for the business to be started at Nagapattinam. But as the business ended in loss, they migrated to Kancheepuram, where Rama Rao was employed in a dyeing factory under meager salary. However, in 1970, the first defendant sold forty sovereigns of gold and started “Dhanam Soap Works”. Then the business was changed to dyes and the name was also changed as “Dhanam Chem Dyes”. There was no capital contribution to the business by Rama Rao. The entire money belonged to the first defendant only. Even though the first defendant has accepted the separation of the second defendant on payment of Rs.4,000 he has denied the execution of the release deed. The properties were purchased from and out of the business. There was no joint family business and the plaintiff is not entitled to claim any share. 5. The first defendant has filed an additional written statement also stating that the vessels and other movable properties belonged to her only and the plaintiff has sold away some of them. The second defendant has also filed a written statement. He has stated that there was no contribution by the father to the business, there was no joint family business. The business was mothers own. He has denied the execution of the release deed also. He has also denied the inducement of the first defendant to claim his share. According to him, the business belongs to the first defendant. He has also stated that he was an unnecessary party. 6. The sixth defendant has also filed a written statement she has also supported the case of the first defendant. 7. On these pleadings, the trial court framed twelve issues, it took up the seventh issue with reference to the release deed dated 14.7.1970 as a first item for consideration and has dealt with elaborately. 6. The sixth defendant has also filed a written statement she has also supported the case of the first defendant. 7. On these pleadings, the trial court framed twelve issues, it took up the seventh issue with reference to the release deed dated 14.7.1970 as a first item for consideration and has dealt with elaborately. It found that the release deed was genuine and the recitals are true and binding the defendants. Then it has taken the issues 1 to 5 about the business, together and found that the business Dhanam Soap works and Dhanam Chem Dyes, Lakshmi Chem Dyes were family business and that the eastern half of the first item and the second item of the properties were purchased benami in the name of the first defendant for the benefit of the family. After holding so, the trial court granted 814th share the first three items of properties, and decree was passedin respect of those items only. 8. Aggrieved by the same, the first defendant has filed the appeal in this Court. It appears that during the pendency of the appeal, the first defendant has died and the second respondent in the appeal is added as the legal representative of the deceased appellant as per order of court dated 28.1.1986 in C.M.P.No.6827 of 1985. 9. In the first instance, Justice C.V.Govardhan, in the absence of the respondents allowed, the appeal on 14.11.1994 and dismissed the suit as against the eastern half of item No.1 and item 2 of the suit properties. Thereafter on 25.8.1995 C.M.P.No. 6327 of 1996 was filed to set aside the ex parte judgment and decree. On 26.4.1996 the ex parte decree was set aside. Hence, it came up for hearing once again. 10. The learned counsel for the appellant Thiru V.Narayanasami, raised the following contentions. The suit itself is not maintainable, since the trial court has found that the eastern half of the first item of the suit property and the second item of the properties were purchased in the name of the first defendant benami for the benefit of the family. Therefore, if we accept the finding, the suit is hit by the provision of Sec.4(1) of the Benami Transactions (Prohibition) Act, 1988. Therefore, if we accept the finding, the suit is hit by the provision of Sec.4(1) of the Benami Transactions (Prohibition) Act, 1988. Secondly, he contended that even assuming that the Benami Transactions (Prohibition) Act, 1988 is not applicable to the case, the business cannot be said to be the joint family business and the eastern half of the first item and the second item of the suit properties are the absolute properties of the first defendant, hence the plaintiff is not entitled to any claim in the same. 11. As regards the first contention, the learned counsel for the respondents Thiru.S.Subbiah, cited the following decision reported in Nand Kishore Mehra v. Sushila Mehra (1995)4 S.C.C. 572 . In the said judgment, the Apex Court has taken the view that after 19.5.1988 the question of benami cannot be raised either by the plaintiff or the defendant. Admittedly, the suit is long prior to the said date i.e., 19.5.1988. Therefore, the prohibition contained in Sec.4(1) of the Benami Transactions (Prohibition) Act, 1988 is not applicable. In the said judgment, the Apex Court has taken the view that after 19.5.1988 the question of benami cannot be raised either by the plaintiff or the defendant. Admittedly, the suit is long prior to the said date i.e., 19.5.1988. Therefore, the prohibition contained in Sec.4(1) of the Benami Transactions (Prohibition) Act, 1988 is not applicable. In paragraph 2, the Apex Court has held as follows: “A three Judge Bench of this Court presided over by one of us (Kuldip Singh, J.) which dealt with the prohibition to file a suit or to take up a defence in respect of a benami transaction imposed by Sec.4 of the Act in the case of R.Rajagopal Reddy v. Padmini Chandrasekharan R.Rajagopal Reddy v. Padmini Chandrasekharan R.Rajagopal Reddy v. Padmini Chandrasekharan (1995)2 S.C.C. 630 has expressed its view that the prohibition imposed by Sub-secs.(1) and (2) of Sec.4 applies only to suits to be filed or defences to be taken, in respect of property held benami i.e., benami transactions, after the coming into force of the Act and not to those suits filed and defences taken in respect of such benami transactions and pending final decision at the time of coming into force of the Act as had been held earlier by a Division Bench of this Court in Mithilesh Kumari v. Prem Behari Khare Mithilesh Kumari v. Prem Behari Khare Mithilesh Kumari v. Prem Behari Khare (1989)2 S.C.C. 95 .” This was approved by the Apex Court in another decision reported in Rebti Devi v. Ram Dutt (1997) 1 S.C.C. 714 wherein the Apex Court has approved the six principles laid down in Mithilesh Kumari v. Prem Behari Khare Mithilesh Kumari v. Prem Behari Khare Mithilesh Kumari v. Prem Behari Khare (1989)2 S.C.C. 95 . In Paragraph 10, the learned Judges of the Supreme Court add two more principles as 7 and 8. The 7th principle is as follows: “Seventhly, if in a suit, claim or action, a plea or defence based on benami is raised even after 19.5.1988 and the purchase is in the name of a wife or unmarried daughter, such a plea of benami is permissible and (1995)2 S.C.C. 630 will not come in the way merely because the plea is raised after 19.5.1988. Such a plea if raised, will however have to be decided taking into account the statutory presumption laid down in Sec.3(2). Such a plea if raised, will however have to be decided taking into account the statutory presumption laid down in Sec.3(2). This is because the Act says that if the purchase is in the name of the wife or unmarried daughter, the prohibition in Sec.3(1) will not apply. Sec.3(2) is enacted as an exception to the provisions in the Act and does not depend for its interpretation on the question as to what extent Secs.4(1) and 4(2) are retrospective.” From the aforesaid decision, the plea of benami raised in this case can be gone into, but it has to be done so taking note of the specific presumption that the purchased property is of the benefit of the wife or unmarried daughter unless the contrary is proved. 12. In view of the aforesaid principle set out by the Apex Court, the burden is heavily upon the plaintiff/first respondent to show that the properties, namely, the eastern part of items 1 and 2 of the properties were purchased for the benefit of the joint family and not for the benefit of the first defendant. Therefore, the first contention of the learned counsel for the appellant has to be rejected. 13. Coming to the question of benami, the learned counsel for the appellant mainly defendant Ex.A-1 dated 14.2.1970. The second defendant executed a release deed in favour of his father and mother, namely, Rama Rao and Dhanalakshmi Ammal and his brother the plaintiff. In the said release deed, the following statement is there: "TAMIL" The Profession of the father, mother and the brother Satyamurthy are described as “Varthakam” and having their residence at 14 A, B Balaji Street,Kancheepuram and the profession of the releaser Chandrasekaran is also described as “Varthakam jeevanam "TAMIL" There is also a description that all of them belong to Hindu Avibaktha family, so this document clearly indicates that there was a joint family business and properties were purchased in the name of the father of the first defendant from the income of the joint family business and they were being enjoyed by the members of the family, Then there is a further statement, which is as follows: "TAMIL" The properties described are 14 A, B, Town Survey No. 1692, the land and building including the walls on western and eastern sides. The release is in respect of the business and the properties including the eastern half of the house property bearing door No. 14A Therefore, this document clearly prove that the eastern half of first item purchaser under the name of the first defendant was also enjoyed by the members of the joint family and that is why, the release deed was taken in respect of eastern half standing in the name of the first defendant. 14. It may be true that the first defendant would have contributed money for the business. But the business was actually carried on by her husband Rama Rao only. Merely because, she contributed money that cannot mean that the business was her own. It is also to be noticed that Rama Rao has good experience in the business. In Madurai, he was employed and gained experience in the dyeing factory. Then in Nagapattinam, he got experience as a partner and thereafter he was employed in Padappai near Kancheepuram. With this experience only he was able to carry on the business practically at Kancheepuram and started Dhanam Soap Works. She has also admitted that her sons were at Athur helping the business. It is also noticed that in her evidence she has admitted that the business at Kancheepuram was stopped only after the death of her husband. She has admitted that Lakshmi Chem Dyes was started when the husband was alive and he was writing the accounts. A reading of her evidence though shows that she alone started the business and she alone carried on the business, she had to admit the main part in the business was played by her husband. After executing the release deed Ex.A-1, in the evidence she has stated that her husband did not tell anything about the execution of the release deed. She has further stated in her evidence that she did not ask her husband to take the release deed from the second defendant. From her admission itself, we are able to see that she was not actually incharge of the business, but on the other hand, the husband alone was incharge of the business. That is why she has taken care to take a release deed. 15. Another statement of her has to be taken note of. She has stated that the suit properties were purchased by her and even her husband had no share in it. That is why she has taken care to take a release deed. 15. Another statement of her has to be taken note of. She has stated that the suit properties were purchased by her and even her husband had no share in it. When the western part of the first item stands in the name of her husband when she was giving evidence in 1982, she has made such a statement. In the cross-examination, she has gone even to the extent of denying of her presence in the group photo taken at the time of the marriage of the second defendant. She has also admitted that her husband was having good skill in dyeing work and only on knowing about his skill Govindaraja Pillai took him to Nagapattinam. This again adds strength to the case that the husband was actively participating in the dyeing business. He has also admitted that he was employed in Padappai factory and started dyeing business after a year after his joining in the padappai factory. In the cross-examination she says that after reading the book on industry, she developed interest in starting the business to manufacture soap oil. She has admitted that she had no previous experience in the soap oil manufacture. In the chief-examination, she has stated that she has also admitted that he does know to read and write accounts. So, her statement that after reading a book on industry she developed interest in starting an industry appears to be artificial. She has stated so only in her enthusiasm to exclude the prominent part played by her husband in starting and running the business. Again she has admitted that even the sales tax accounts relating to Lakshmi Chem Dye is in the name of her husband. Another admission is that after the death of the husband, the plaintiff started writing accounts. A reading of her evidence shows that the mother and son were carrying the business smoothly till some trouble started between them when the plaintiff refused to handover the collections made at Kancheepuram. She has also admitted that when there was a panchayat, he agreed only to submit the accounts and not to return the amounts collected by him. This also gives an indication that the business was continued jointly even after the death of Rama Rao. She has also admitted that when there was a panchayat, he agreed only to submit the accounts and not to return the amounts collected by him. This also gives an indication that the business was continued jointly even after the death of Rama Rao. If the business was exclusive to the first defendant, in the panchayat he would have agreed to return the amounts and not agreed to render accounts. When the first defendant has not admitted that Rama Rao was helping her in the business, D.W.2 goes to the extent of saying that he did not see Rama Rao at all in the business at Kancheepuram and he was continuing to work at padappai even after the business was started. There is no such statement by D.W.I 16. D.W.3 is a close relation to the first defendant and her husband. He was not examined with reference to the business at all. A close relation aged 77, when he gave evidence must have stated about the family and the family business and yet he was not examined by the defendant on those aspects. But she has examined him only for the purpose of panchayat. D.W.4 is the second defendant. He has joined hands with the first defendant after the dispute arose between the plaintiff and the first defendant. We have seen that this witness has filed a separate written statement. He went to the extent of denying the knowledge about these things and states that the father has misrepresented the facts to him and obtained the signature. He further states that he never executed the release deed as alleged in the plaint. Therefore, this witness cannot be relied upon to any extent. As against this, we have P.W.2, a close relation of the family of the plaintiff, P.W.2 was aged 80 years when he gave evidence. In fact, he has stated that he settled the marriage of the first defendant with Rama Rao. He stated that only 12 sovereigns of jewels were presented. He has also stated that apart “from 12 sovereigns, no other jewels were presented. He has also denied the suggestion of sixty sovereigns of jewels were given to D.W. 1 at the time of the marriage. P.W.3 is an important witness because he is the consanguine brother of the first defendants husband. He has also stated that apart “from 12 sovereigns, no other jewels were presented. He has also denied the suggestion of sixty sovereigns of jewels were given to D.W. 1 at the time of the marriage. P.W.3 is an important witness because he is the consanguine brother of the first defendants husband. He has stated that the first defendant and the plaintiff and his brother Rama Rao were in joint family till Rama Raos death. He has stated that the business at Kancheepuram was joint family business. He has also stated that when the business was started at Madurai, he was present. He has contributed some amount to the business as gift and he has entered the amount when the new account was opened at the time of the starting of the business. RW.4 is also an elderly person aged about 74 years and he is the close friend of the family. He has stated that the first defendants father was not alive at the time of the marriage of the first defendant with Rama Rao. It was false to state that the first defendant was given 60 sovereigns of jewel. He has categorically stated that the marriage was conducted in difficult circumstances. He is also one of the panchayatdars. RW.5 is another important witness. He is the vendor of the suit premises Nos.14-A and 14-B. He has stated that Rama Rao started the business under the name and style of “Sri Dhanam Soap Works”. The entire consideration of the sale was paid by him. He has stated that he has purchased the property in his name and in the name of his wife. RW.6 is the vendor of the third item of the property No.203, Mosque Street, Madurai. He has stated that Rama Rao negotiated for the sale. Rama Rao paid Rs. 13,000. He alone paid the advance. 17. From the oral evidence, we are above to see that evidence of D.W. 1 is exaggerated and artificial. Close relations and aged persons have spoken to the status of the first defendant at the time of her marriage, the presentation of jewels (sic). Even from the evidence of D.W. 1, one can infer that Ram Rao was having good experience in the business. Close relations and aged persons have spoken to the status of the first defendant at the time of her marriage, the presentation of jewels (sic). Even from the evidence of D.W. 1, one can infer that Ram Rao was having good experience in the business. Therefore, we have to come to the conclusion that the business was started only by Rama Rao, the father of the plaintiff and the husband of the first defendant. The theory that the business was started by the first defendant alone and she alone contributed the money for the business by selling her jewels is unbelievable. Rama Rao was doing partnership business at Nagapattinam, then he shifted to Kancheepuram. In Kancheepuram, he was employed at Padappai. He was getting some income then. The business was started by him with the experience he gained earlier. From the business started at Kancheepuram, he purchased the properties in his name and in the name of his wife, the first defendant It is abundantly clear that even though the eastern portion of item No. 1 was purchased in the name of the first defendant, it was enjoyed jointly by the members of the family. When the second defendant separated himself, the said property was treated as joint family property enjoyed by all the members of the joint family. As it was treated as joint family property and enjoyed by all the members of the family, including the first defendant, the share of the second defendant in the property was released a release deed. The property was treated as the joint family property and not for the benefit of the first defendant is clear from the recitals in Ex.A-1. Therefore, as far as the eastern half of the first item of properties are concerned, it has to be necessarily concluded that it formed part of the joint family property purchased from out of the joint family business, which the plaintiff was a member. It is true that the first defendant cannot be coparcener and she cannot be a member of the joint family. But at the same time, evidence in this case discloses that she has also played significant role in starting and running the business, But, however, from the evidence available, it is clear that the property was not purchased for the benefit of the first defendant alone. But at the same time, evidence in this case discloses that she has also played significant role in starting and running the business, But, however, from the evidence available, it is clear that the property was not purchased for the benefit of the first defendant alone. Hence, the said item is available for partition and the plaintiff is entitled to claim a share in it. 18. When we come to the second item also, one has to conclude that this was also purchased by Rama Rao from the income of the family. But whether this property was treated and enjoyed as common property has to be found from the totality of the circumstances. In Ex. A-4 document, the first defendant has been described as "TAMIL" P.W.5 the vendor of this property has categorically stated that it is Rama Rao, who paid advance and the balance amount. The first defendant has not taken any part in the sale deed. D.W.I has asserted that she started the business at Kancheepuram and then at Madurai. She has also stated that she was doing milk vending business in the beginning. RW.1 has stated that Indian Bank account was in the name of the first defendant and the amounts in the bank belonged to the family and it does not belong to the mother alone. He has also stated further that during the life time of the father, they were living in the second item of property. He has also claimed that he is also entitled to a share in all the properties of the family. He has not stated that D.W.1 has no right, P.W.1 has also admitted that savings Bank account was in the name of the father and mother. 19. From the assertion of D.W.1 that she started the business and from the admission by P.W.1 that the bank accounts was in the name of D.W.1 and the father and from the evidence of D.W.2 that business was conducted by D.W.1, we have to come to the conclusion that D.W.1 also played a prominent part in the business. After the death of the father in 1978, till the dispute arose, the business was continued by the first defendant and the plaintiff. Another significant admission by P.W.1 is that he was ready to render accounts to the first defendant (D.W.1) regarding the Kancheepuram collection of debits and not the amount. After the death of the father in 1978, till the dispute arose, the business was continued by the first defendant and the plaintiff. Another significant admission by P.W.1 is that he was ready to render accounts to the first defendant (D.W.1) regarding the Kancheepuram collection of debits and not the amount. In the circumstances, the necessary inference, that we have to draw is that though the properties were purchased in the name of the first defendant, the properties including the second item were purchased for the benefit of the family in the sense, that was for the benefit of the father, sons and the mother. The second son has separated from the family after receiving his shares from the business and from the first item of the property before the purchase of the second item of the property. Hence, he cannot claim any right, at the same time, plaintiff is entitled to make a claim for the same. Therefore; in my view, the finding of the trial court that the plaintiff is entitled to his share in the third item of properties is correct. But as stated above, the first defendant also has a share in it. Merely because she happened to be a woman, she cannot be excluded from partition. Her claim that she was the exclusive proprietor of the business alone has to be rejected. In Ex.A-1 she is described as having "TAMIL" From the evidence, we can infer that she might have given some of her jewels for starting the business. From the circumstances of the case it has to be concluded that she must be treated as one of the partners of the business. Therefore, she must be treated as a co-sharer of the properties though cannot be said to be a coparcener in a joint family. Hence during the life time of the father Rama Rao, she must be treated as partner along with the husband and the son. After the death, she must be deemed to be a partner with the son. Hence, along with the plaintiff, she will be entitled to l/3rd share in the business and in the properties purchased from the earnings of the business. After the death, she must be deemed to be a partner with the son. Hence, along with the plaintiff, she will be entitled to l/3rd share in the business and in the properties purchased from the earnings of the business. As there is no claim from the daughters, and as the second defendant has separated himself from the family and went away after receiving his share from the business and from the property acquired till his separation. They cannot claim any share in the business and the properties. Therefore, after the second defendants separation from the business and family, there were three partners, the husband, wife and the son. After the death of the husband, the mother and the son carried the business till the misunderstanding developed. 20. After the death of the father his l/3rd share has to be divided and shared not only by the plaintiff and the first defendant, but also the legal heirs, including the daughters and the plaintiff and the defendants 1 and 2. Therefore, the division has to be made as follows: The plaintiff will have l/3rd share and the first defendant will have another l/3rd share in items 1 to 3 of the suit properties. From the other l/3rd share belonging to the husband, which has to be divided into seven shares; the plaintiff and the first defendant will be entitled to get l/7th share each. Therefore, the share to which the plaintiff will be entitled is 821th. Hence, he will have a decree for821th share in items 1 to 3. Item No.4 has been excluded by the trial court. There is no cross-appeal. As the appeal itself is limited to only to items 1 to 3 alone, the plaintiff is not entitled to any share in the fourth item. 21. In the above circumstances, the judgment and decree of the trial court is modified as mentioned above, The appeal is partly allowed. However, there will be no order as to costs.