G. Pachaiappan v. R. Ramamoorthy — 1998 DIGILAW 600 (MAD)

Judgment :- 1. Plaintiff in O.S.No.7 of 1976 on the file of the District Munsif, Tiruvallur, is the appellant. The suit filed by him was to declare his title of the plaint schedule property and to restrain the defendants and their men and agents from interfering with his possession and also for costs of the suit. 2. Plaintiff has based his case on a registered settlement deed executed by one Ellammal, his mother under Ex.A-1 dated 17.6.1975. According to him, Ellammal was the absolute owner of the property having purchased the same under Ex.A-2 dated 30.3.1932. After the said purchase Ellammal was dealing with the property as the absolute owner till she executed a settlement deed Ex.A-1. After the settlement deed the plaintiff has become the owner and the defendants are interfering with his possession. Second defendant is none other than his elder brother. 3. In the written statement filed by the defendants, it is contended that Ex.A-2 sale deed in favour of Ellammal is a benami one. It is their further case that the sale consideration was paid by their father Govindaswamy Naicker. He was brought up by his aunt Murugammal. Govindaswamy Naicker had another brother and they were not in god terms. Therefore, the property was purchased in the name of his wife. It is also stated that Govindaswamy Naicker was brought up by Murugammal and her husband Vembuli and he has discharged debts borrowed by them. The settlement deed Ex.A-1 is invalid for the reason that Ellammal had no right to bequeath the property. During the relevant time Ellammal was old and infirm and was feeble in health and she was non in sound state of mind. Plaintiff had fraudulently taken the deed from Ellammal in order to defraud and deprive the right of the second defendant for his 3rd share of the property. He prayed for dismissal of the suit. 4. The trial court raised the following issues: (1) whether the sale deed dated 13.3.1932 is taken benami in the name of Ellammal for Govinda Naicker. (2) Whether the settlement deed dated 17.6.1975 is true and valid. (3) whether the suit property belong to the family consisting of the defendant, the plaintiff and their father. (4) Is the plaintiff entitled for injunction. (5) To what other relief are the parties entitled to. 5. (2) Whether the settlement deed dated 17.6.1975 is true and valid. (3) whether the suit property belong to the family consisting of the defendant, the plaintiff and their father. (4) Is the plaintiff entitled for injunction. (5) To what other relief are the parties entitled to. 5. On issue No.1, the trial court held that Ex.A-2 was purchased benami for Govindaswamy Naicker. It came to the conclusion that Govindaswamy Naicker was also dealing with the property and was treating the property as a family property. The consideration might have been paid by the Govindaswamy Naicker though Ellammal also was having some business in vegetables. 6. On issue No.2, the trial court held that Ex.A-1 is not valid. It was of the view that Ellammal was ailing and the plaintiff has not proved the document in accordance with law. 7. On issue No.3, the trial court held that the property belongs to the plaintiff the defendants and their father. 8. On issue No.4, the trial court held that the plaintiff is not entitled to injunction and the suit was dismissed. 9. The plaintiff filed an appeal before the lower appellate court in A.S.No.45 of 1980 on the file of the Subordinate Judge, Tiruvallur. The lower appellate court also confirmed the judgment of the trial court and dismissed the appeal. 10. It is argued that the lower appellate court has not considered the evidence in detail. It held that it agrees with the findings of the trial court as it is, It is as against this concurrent findings, the plaintiff has preferred this second appeal on the following substantial questions of law: “(1) Having framed the issue correctly casting the burden on the defendant to prove the benami transaction, have not the courts below gone wrong by casting the burden of proof on the plaintiff while discussing the evidence. (2) Are not the defendants who claim through Govindaswamy Naicker precluded from claiming the properties in view of Ex.A-21, executed by Govindaswamy Naicker admitting the property to be that of Ellammal. 11. On going by the reasonings of the courts below, I feel that the criticism made by the learned counsel for the appellant against the decisions of the courts below, is justified. 12. 11. On going by the reasonings of the courts below, I feel that the criticism made by the learned counsel for the appellant against the decisions of the courts below, is justified. 12. It is settled law that in a case where a person pleads benami, it is for him to prove that the apparent tenor of the document is not true and the real owner is some other person. It must also be proved by him that the consideration for the same passed not from the purchaser but from another persons who is the beneficial owner. The motive behind the purchase is also a relevant factor. Without considering all these positions of law, the courts below have gone on a tangent. 13. I will first consider the legal position regarding the benami nature of the document and how to prove the same. In Jaydayal Poddar v. Bibi Hazra, A.I.R. 1974 S.C. 171: (1974)1 S.C.C. 3 their Lordships held thus: “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 of the party or parties concerned, and not un often, such intention is shrouded in a thick veil which cannot be 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; not justify the acceptance of mere conjecturers or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the persons expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the persons expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae of acid test, uniformly 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 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. 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 are 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.” In Thakur Bhim Singh v. Thakur Kan Singh, (1980)3 S.C.C. 72 their Lordship in para 18 have held thus: “The principle governing the determination of the question whether a transfer is a benami transaction or not may be summed up thus: (1) the burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction; (2) if it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facieassumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary; (3) the true character of the transaction is governed by the intention of the person who has contributed the purchase money, and (4) the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motives governing their action in bringing about the transaction and their subsequent conduct, etc.” In Pratap Singh v. Sarojini Devi , (1994)1 S.C.C. (Supp.) 735 at para 41 of the judgment their Lordships have enunciated some principles of Maynes Hindu Law, which reads thus: ‘It has been held in Maynes Hindu Law, 13th Edition, at page 1201 as under: “1. Source of the purchase money; 2. nature and possession of the property and custody of the title deeds; 3. motive; 4. relationship between the parties; 5. conduct of the parties in dealing.‘ In Heirs of Vrajlal J.Ganatra v. Heirs of Parshottam S.Shah Heirs of Vrajlal J.Ganatra v. Heirs of Parshottam S.Shah Heirs of Vrajlal J.Ganatra v. Heirs of Parshottam S.Shah , (1996)4 S.C.C. 490 their Lordships in para 5 of the judgment have held thus: “The question whether a particular sale is benami or not is largely one of fact. Though there is no formula or acid test uniformly applicable it is well-nigh settled that the question depends predominantly upon the intention of the person who paid the purchase money. Though there is no formula or acid test uniformly applicable it is well-nigh settled that the question depends predominantly upon the intention of the person who paid the purchase money. For this, the burden of proof is on the person who asserts that it is a benami transaction. However, if it is proved that the purchase money came from a person other than the recorded owner (ostensible owner) there can be a factual presumption at least in certain cases, depending on facts, that the purchase was for the benefit of the person who supplied purchase money. This is, of course, a rebuttable presumption.” 14. I do not think that the courts below have approached the question on the basis of the above settled legal position. I will first take Ex.A-2 itself. The original title deed is produced by the plaintiff, though in the appendix of the judgment of the trial court, it is stated as copy of document. The total consideration for purchasing the property is Rs.500 out of the same Rs.200 was paid by Ellammal to the vendor on the date of the transaction. The balance Rs.300 was reserved with Ellammal for payment certain creditors mentioned therein. There were two creditors to whom Rs.200 and Rs.100 were to be paid. The stamp paper was also purchased in the name of Ellammal. While describing the address in the document, While describing the address in the document, it is stated that she was having business. In this connection, it may also be noted that the lower appellate court has also found that Ellammal was having vegetable business and thereby she had source of income to purchase the property. 15. The next important document which requires consideration is Ex.B-1. The courts below have given much importance to Ex.B-1 and have come to the conclusion that Govindaswamy Naicker was also dealing with the property. But if only the lower court has thought fit to read the document, it would not have stated so. Ex.B-1 is dated 19.9.1938. It is a simple mortgage executed by Ellammal with her husband Govindaswamy Naicker. While describing the property, Govindaswamy Naicker also states that the property was purchased by Ellammal and the same was her self-acquired property and is unencumbered. This is clear from page 2 of the document. Ex.B-1 is dated 19.9.1938. It is a simple mortgage executed by Ellammal with her husband Govindaswamy Naicker. While describing the property, Govindaswamy Naicker also states that the property was purchased by Ellammal and the same was her self-acquired property and is unencumbered. This is clear from page 2 of the document. The relevant portion of the document reads thus: "TAMIL" It is seen that Ellammal had borrowed certain amounts and it is for the said purpose, the document is executed. The mortgage amount is Rs.200 and she agreed to discharge the debt in 84 instalments. It is further seen that the husband is also made a party only as a guarantor. In para 4 of the document, again the words “the plaint property is self-acquired by Ellammal” is repeated. The relevant wordings read thus: "TAMIL" 16. The courts below have taken a view that when the Govindaswamy Naidu has also joined the document, it must be presumed that it was he who was the beneficial owner. Otherwise, there is no necessity for him to join in Ex.B-1. The lower courts failed to note that among the Hindus when a debt is incurred by a Hindu woman, naturally her husband is also made a party, not because he is the owner of the property, but as a surety. 17. The courts below have not taken the admission of Govindaswamy Naicker when he himself decrees that the property was purchased by the first executant Ellammal itself. That admission was omitted to be considered by both the courts below. 18. Ex.A-19 is another mortgage deed executed by Ellammal herself with the consent of her husband wherein it was declared that the property belonged to her. It is also in evidence that patta of the property stands in her name and sit was also paid by her. Admittedly, Ellammal was dealing with the properties belonging to her. Her husband who claims to have advanced the amount or who is alleged to have advanced the amount has also admitted that Ellammal paid Rs.500 and acquired the property, under Ex.B-1. The title deed was admittedly with Ellammal and the same was handed over by Ellammal to plaintiff after he executed Ex.A-1. The various revenue receipts are also produced before the court by the plaintiff. The title deed was admittedly with Ellammal and the same was handed over by Ellammal to plaintiff after he executed Ex.A-1. The various revenue receipts are also produced before the court by the plaintiff. In this case possession may not be a material factor, since Govindaswamy Naicker and Ellammal were husband and wife, and are residing together. 19. In Ex.A-2 the reasons for selling the property are also stated. Murugammals husband died a few days before Ex.A-2. It is the case of the defendants that Murugammal and her husband has brought up Govindaswamy Naicker as their son since they had no issues. If that be so, and if Govindaswamy Naicker, had any income and had been treated as son, there was no necessity for selling the property for the expenses incurred for the death ceremony. Rs.200 was paid by Ellammal for the expenses incurred by Murugammal for the death ceremony of her husband. Even, without the sale of the property, Govindaswamy Naicker would have incurred this expense, if the case of the defendants is accepted. 20. The motive behind the purchase of the property benami is alleged by the defendants is that Govindaswamy Naicker had brothers who were not in good terms with him. He apprehended that they will put forward a claim over the property. Except this statement by the defendants, no evidence has been let in, in this case. There is also no evidence to show that Govindaswamy Naicker had any broth-ers, nor about their alleged strained relationship with Govindaswamy Naicker. Apart from all these, the evidence also discloses that even on the date of the suit and even while the defendants were, being examined, Govindaswamy Naicker was alive. The best evidence in this case would have been the evidence of Govindaswamy Naicker to prove the real state of affairs. It is the case of the defendant that he was living with them. What prevented the defendants from examining him, is not stated anywhere. 21. While purchasing the property benami in the name of his wife, whether that could be shielded from the brothers of Govindaswamy Naicker is also doubtful. The contention now raised by the defendants could also be raised by the brothers that the property was purchased by Govindaswamy Naicker alone with his funds. The allegation of motive stands as allegation alone without any proof. 22. The contention now raised by the defendants could also be raised by the brothers that the property was purchased by Govindaswamy Naicker alone with his funds. The allegation of motive stands as allegation alone without any proof. 22. Taking into consideration these facts, I do not think that the courts below have approached the question with the correct legal perspective. The trial court approached the question as if the entire burden is on the plaintiff, and has held that the plaintiff has filed to prove that Ellammal paid the consideration and about her source of income. 23. The trial court has relied on certain circumstances to hold that the debts incurred by mortgaging the property were discharged either by Govindaswamy Naicker or by the defendants. That according to this court shows that Ellammal was never the owner of the property. In this case, the examination of Govindaswamy Naicker alone would help, and that evidence is not before the court. Even otherwise the evidence conclusively shows that Ellammal was the owner and she alone was dealing with the property. 24. The trial court has also discarded Ex.A-20 the receipt executed by mortgage under Ex.A-19 which evidences the discharge of the mortgage debt. The trial court was of the view that Ex.A-20 is not properly proved by examining the attestors. 25. I fail to understand the logic behind the said finding. It is not the case of the defendants that Ex.A-19 is still outstanding. Having failed to prove that Ex.A-19 is still outstanding, finding fault with the plaintiff is not legal. Since the courts below have not considered the question in the way it ought to have been done as decided by the Supreme Court in various decisions cited supra, I feel that this Court will be right in interfere with the findings of the courts below under Sec. 100 of the Code of Civil Procedure. 26. The lower appellate court did not even think of discussing the evidence which it ought to have done as final court of facts. Both the courts have not taken into consideration the admission of Govindaswamy Naicker in Ex.B-1, which in my view, is a material factor in this case. The admission if it is done intentionally, it amounts to estoppel. That is the best piece of evidence which the plaintiff can rely on. Both the courts have not taken into consideration the admission of Govindaswamy Naicker in Ex.B-1, which in my view, is a material factor in this case. The admission if it is done intentionally, it amounts to estoppel. That is the best piece of evidence which the plaintiff can rely on. But, if no attempt is made to explain the same, it is binding on all persons. 27. I take support of the decision in Avadh Kishore Das v. Ram Gopal , (1979)4 S.C.C. 790 wherein their Lordships have held thus: “If, however, the admission is made by the predecessor consciously and not inadvertently and, far from explaining it, the successor-in-interest affirms it, the admission would be a relevant evidence raising the estoppel.” In this case, in spite of the admission in Ex.B-1, it is not considered by the courts below. The material piece of evidence was omitted to be considered. 28. In Sitaramacharya v. Gururajacharya, (1997)2 S.C.C. 548 at para 6 of the judgment their Lordships held thus: “An admission in the written statement in the earlier proceedings, though not conclusive for the absence of reasonable and acceptable explanation, it is a telling evidence heavily loaded against the respondents.” Since the first appellate court and the High Court did not consider the evidentiary value of the admission, their Lordships held that it is a ground for interference. Similar, is the case in Kochukkada Aboobacker v. Allah Kasim , (1996)7 S.C.C. 389 wherein their Lordships justified the interference under Sec. 100 of the Code of Civil Procedure. 29. In D.S.Thimmappa v. Siddaramakka D.S.Thimmappa v. Siddaramakka D.S.Thimmappa v. Siddaramakka , (1996)8 S.C.C. 365 at para 6 of the judgment their Lordships held that the first appellate court has failed in law to draw proper inference from proved facts and non-application of law in the proper perspective. 30. Reliance is also placed under Ex. A-21, by learned counsel for the appellant to hold that Govindaswamy Naicker is precluded from claiming any right over the plaint schedule property. Ex.A-21 is executed by Govindaswamy Naicker, whereby he has agreed that Ellammal has executed a settlement deed in favour of the plaintiff. When the plaintiff has proved Ex.A-21, the best person to speak about the non-execution is the executor. Ex.A-21 is executed by Govindaswamy Naicker, whereby he has agreed that Ellammal has executed a settlement deed in favour of the plaintiff. When the plaintiff has proved Ex.A-21, the best person to speak about the non-execution is the executor. Ex.A-21 is more or less an admission on the part of Govindaswamy Naicker that the property belonging to his wife and he has no objection in executing a deed. The courts below have discarded Ex.A-21 for the reason that if the property absolutely belonged to Ellammal, there was no necessity for taking a consent. 31. I do not think that the approach made by the courts below is correct. Even though the property belonged to his wife, naturally every transaction is done only with the consent of the husband. Moreover, Ellammal is giving preference to one of the sons; naturally consent of the husband is required so that future mis-understanding could be avoided. Ex.A.21 also was not properly considered by the courts below. These facts alone are sufficient to upset the findings of the courts below. 32. Learned counsel for the respondents submitted that even if the property is not held to be benami, unless the plaintiff proves the settlement deed, he is not entitled to succeed. According to him, if there is no settlement deed, he will also a legal heir along with Govindaswamy Naicker. 33. The courts below have also discarded Ex.A-1. Before going into the evidence, the contention raised in the written statement can also be considered. There is no denial of execution anywhere in the written statement. In para 3 it is only stated as “Ellammal had no right to bequeath the property and the defendant denied the deed dated 17.6.1975. The plaintiff should prove and establish the same.” In para 8 it is further stated that “Ellammal was old and infirm and feeble in health and she died on the date of the suit. Even on the date of alleged settlement she had no sound disposing state of mind. The plaintiff’ has fraudulently taken the deed from Ellammal in order to defraud and deprive of the right of the second defendant for his 1/3rd share in the suit property.” From the above statement, it is clear that the respondents admit that the document is executed by Ellammal, but the same is not valid is their argument. 34. The plaintiff’ has fraudulently taken the deed from Ellammal in order to defraud and deprive of the right of the second defendant for his 1/3rd share in the suit property.” From the above statement, it is clear that the respondents admit that the document is executed by Ellammal, but the same is not valid is their argument. 34. Regarding prosecutions, the evidence of P.W.3 who is one of the attestors to Ex.A-1 is clear, and cogent. He speaks about the execution of Ex.A-1 and the circumstances under which he became the attestors. From his evidence it is clear that Ex.A-1 was executed by deceased Ellammal after fully knowing the contents of the document. It was read over to her; she understood the contents and thereafter she signed the same in the presence of the attestors. D.W.1 who is the second defendant has not stated anything about the illness while he was examined. If she was not ailing and the execution is also proved, 1 do not think that the approach made by the courts below in disbelieving Ex.A-1 is proper. 35. In my view, the courts below have not approached the question rightly. Ex.A-1 is a gift and not a testamentary disposition. Evidence also need not be as if it is a will. The evidence adduced to prove execution show that Ex.A-1 was executed voluntarily by deceased Ellammal, making the plaintiff the absolute owner of the property. 36. In the result, I set aside the judgments of the courts below. The second appeal is allowed. There will be a decree as prayed for with costs in all the courts.