Judgment :- This suit has been filed by the plaintiff for a declaration that the plaintiff is the absolute owner of the suit property situate at 4/1, Audiappa Street, Purasawakkam, Madras-84, for a declaration that the sale deeds dated 16-6-95 executed by the first defendant in favour of the defendants 2 and 3 are sham and nominal and not binding on the plaintiff, for a permanent injunction restraining the defendants from altering the physical features of the property or dealing with the suit property without reference to the plaintiff's rights, for recovery of Rs. 20,000/- per month towards damages from the date of plaint till the date of delivery of possession and for costs. 2. Plaint averments are as follows : Plaintiff married the first defendant on 18-11-76 at Jain Bhavan, Madras according to Jain Custom. Two childern viz. M. Pinky and Naresh Kumar were born to them. When the suit property was acquired by the plaintiff out of his own funds, they were living at No. 93, Portughese Church Street, Madras-1 in 1989. Plaintiff was carrying on business under the name and style of M/s. Mahaveer Nylon Ropes Co. Out of his business income, the plaintiff purchased the suit property. He purchased part of the schedule mentioned property measuring 1776 sq. ft. by a registered Sale Deed dated 6-6-89 from Kamaleswari and others for a consideration of Rs. 3,50,000/- while he purchased 519 sq. ft. of property by a deed of sale dated 23-8-89 from Sathyaseelan for a consideration of Rs. 55,000/- He purchased the entire suit property in the name of his wife, the first defendant herein. He drew amounts from his Account No.765 with Indian Bank, Clock Tower Branch, Royapettah, Madras, for the purchase of the property. He also drew money from his account No. 2351, 176/1, 1633 held in Bank of Tamil Nadu, now merged with Indian Overseas Bank, Broadway, Madras. Apart from the above, he also availed overdraft facility from Indian Bank, Clock Tower Branch to the extent of Rs.2,00,000/- The said sale consideration of Rs. 3,50,000/- was paid to the vendors by way of demand draft while Rs.55,000/- was paid by way of cheque. He has been earning substantial income from his business and the first defendant is not the real owner of the suit property. He is the real owner. He obtained approved planning permission from the Corporation of Madras. 3,50,000/- was paid to the vendors by way of demand draft while Rs.55,000/- was paid by way of cheque. He has been earning substantial income from his business and the first defendant is not the real owner of the suit property. He is the real owner. He obtained approved planning permission from the Corporation of Madras. He commenced demolition and reconstruction of the property. After following the usual procedures, he started erecting the new structures in accordance with the sanctioned plan. He engaged the services of Emerald Construction, Anna Nagar, Madras through their architect Mr. Sathnam Singh for the construction work. He completed substantial constructions of the property except plastering, paint washing, mosaic flooring and wooden work, etc. There had been difference of opinion between the plaintiff and the first defendant and she withdrew herself from the company of the plaintiff and moved to her mothers place. The suit property was purchased for the benefit of the family. The first defendant cannot claim any exclusive ownership over the property inasmuch as the plaintiff has contributed the entire sale consideration for the purchase of the suit property. The first defendant has removed all the original title deeds of the suit property and other documents. On enquiry, he was informed pursuant to a sale deed dated 16-6-95. Part of the suit property measuring 1465 sq.ft. in the ground floor was sold in favour of the second defendant for Rs. 6 lakhs. Similarly, the first floor was sold by the first defendant in favour of the third defendant for Rs.6.00 lakhs. After demolition and reconstruction, the property is worth several lakhs as on date. The real sale consideration in respect of the sale effected by the first defendant would be much more than what is stated above. The sales effected by her in favour of the defendants 2 and 3 are sham and nominal. The first defendant is a person of no means and has no independent source of income or any tangible property from and out of which she could purchase the suit property. If the suit property is let out to any third party on a rental basis, it would fetch a monthly rent of Rs. 20,000/- (Rs.10,000/- for each floor). He would have earned a minimum income of Rs.20-25 thousand per month from the property. Hence the suit. 3. If the suit property is let out to any third party on a rental basis, it would fetch a monthly rent of Rs. 20,000/- (Rs.10,000/- for each floor). He would have earned a minimum income of Rs.20-25 thousand per month from the property. Hence the suit. 3. In the written statement filed by the defendants 2 and 3, it is alleged that the suit property was purchased by the first defendant with her own funds. The suit property was not purchased for sentimental reasons by the plaintiff in the name of his wife. The allegation that the plaintiff obtained a draft for Rs. 2,50,000/- in the name of Kamaleswari and that Rs. 3,50,000/- was paid to the vendor is denied. The plaintiff never drew any money of the purchase fot the property. Plaintiff is not the real owner of the suit property. The defendants 2 and 3 made bona fide enquiries and verified the records and found that the 1st defendant was an Income-tax Assessee and that the suit property was declared to be her own property while disclosing the value of the property at Rs. 4,65,065/- in her trial balance. After obtaining declaration in the sale deed that the plaintiff has not contributed any amount either for the purchase of the suit property or for reconstruction of the building, they purchased the property and vacant possession was handed over by the 1st defendant to them. The first defendant also obtained sanction from MMDA in her name on 18-7-1990 for putting up a new construction in the suit property and after sanctioned plan was obtained, the construction was partly carried out. The Municipal assessment was also standing in the name of the first defendant. In all records, the suit property was declared and assessed as the property of the 1st defendant. The property was conveyed to them by two separate sale deeds for a total sale consideration of Rs. 12,00,000/- An Advocate Commissioner was appointed and he has filed a report. On perusal of the bank pass book of the plaintiff, it was noticed that the plaintiff had no sufficient bank balance on 6-6-1989 when the sale consideration was paid to the Vendors when they conveyed the property to the first defendant and there was only a balance of Rs. 618/- as on 2-4-89 and a sum of Rs. 6180/- as on 9-6-89. 618/- as on 2-4-89 and a sum of Rs. 6180/- as on 9-6-89. The entire sale consideration of Rs .3,50,000/- was paid by the first defendant. The first defendant was having a separate business and having a net income of Rs. 30,000/- for the year ending 31-3-1989 and Rs. 20,500/- for the year ending 31-3-1990. Section 3(2) of Benami Transaction (Prohibition) Act of 1988 provides that unless the contrary is proved, there is a presumption that the property was purchased for the benefit of the person in whose name the property was purchased. There is no benami purchase. After the purchase of the property, the defendants 2 and 3 spent several lakhs of rupees and completed the construction and are now in occupation of the suit property. The application No.4197/95 was dismissed on 2-2-96 and the O.S. Appeal No.165/96 was also dismissed on 13-10-1997. The first defendant was alone in exclusive possession and enjoyment of the suit property. The property after much publicity was sold only on 16-6-95 while the suit was filed in the end of July 1995. The suit is based on imaginary allegations. In order to blackmail the purchasers, the above suit has been filed vexatiously. Hence the suit is liable to be dismissd with exemplary costs. 4. The following issues were framed : 1) Is the plaintiff entitled for a declaration that he is the absolute owner of the suit property ? 2) Is the plaintiff entitled for a declaration that the sale deeds dated 16-6-1995 executed by first defendant in favour of second and third defendants are sham and nominal and not binding on the plaintiff ? 3) Whether the plaintiff is entitled for a permanent injunction restraining the defendants or anyone claiming through them from altering the physical features of the property or dealing with the suit property without reference to the plaintiffe's rights? 4) Whether the plaintiff is entitled for damages at the rate of Rs. 20,000/- per month from the date of the plaint till the date of delivery of possession? 5) Whether the defendants 2 and 3 are bona fide purchasers of the suit property? and 6) To what reliefs the parties are entitled? 5. 4) Whether the plaintiff is entitled for damages at the rate of Rs. 20,000/- per month from the date of the plaint till the date of delivery of possession? 5) Whether the defendants 2 and 3 are bona fide purchasers of the suit property? and 6) To what reliefs the parties are entitled? 5. ISSUES 1 to 6 :- Plaintiff has filed this suit seeking for a declaration that he is the absolute owner of the plaint mentioned property and that the sale deeds executed by the first defendant in favour of the defendants 2 and 3 on 16-6-95 are sham and nominal and not binding on him, for a permanent injunction and for damages. 6. The plaintiff examined himself as P.W.1. He would depose that he was carrying on business by name M/s. Mahaveer Nylon Ropes Company. Exs. P-1 and P-2 are the pass books maintained by the plaintiff in Bank of Tamil Nadu, Broadway Branch. The pass book which stood in the name of Mahaveer Chand in Indian Overseas Bank is marked as Ex. P3 Ex. P4 and P5 are counterfoil of the cheque books. He purchased the suit property from Kamaleswari in the name of Yasodha, the first defendant herein, for Rs.3.50 lakhs. He paid Rs. 1,00,000/- by cash and Rs.2.50 lakhs by pay order. He purchased one portion from Sathiyaseelan for Rs. 52,000/- Ex. P6 is the agreement. Ex. P7 is a receipt issued by the architect. The agreement entered into between P.W.1 and Emarald Construction for constructing the Bungalow is marked as Ex. P8, Ex. P9 is the receipt issued by the said construction company. Ex. P10 is given to him by Emarald Builders which is countersigned by the architect. The receipt for payment of Rs. 50,000/- to Emarald Construction is marked as Ex. P11, Ex. P12 is the another receipt issued to Emarald Construction. Ex. P13 is the Bill given by Emarald Construction. The receipt for the payment made by P.W.1 is marked as Ex. P14. Emarald Construction sent another bill under Ex. P15, Ex. P16 is the receipt for Rs.50,000/-. Exs. P17 and P18 are the xerox copies of the Bills sent by Emarald Construction. The certificate issued by Emarald Construction to the payment made by him is marked as Ex. P19, Ex. P20 is the estimation for the works to be done while Ex. P21 is the sanctioned plan for the construction. P16 is the receipt for Rs.50,000/-. Exs. P17 and P18 are the xerox copies of the Bills sent by Emarald Construction. The certificate issued by Emarald Construction to the payment made by him is marked as Ex. P19, Ex. P20 is the estimation for the works to be done while Ex. P21 is the sanctioned plan for the construction. The registration copy of the sale deed executed by Kamaleswari is marked as Ex. P22, while the registration copy of the sale deeds executed by Sathiyaseelan and the third defendant are marked as Exs. P23 and P24. Ex. P25 is the registration copy of the sale deed executed by the first defendant in favour of the second defendant. He borrowed monies through Exs. P26 to P28. He discharged the debts and received back the promissory notes. Ex. P29 is the letter given by the architect regarding the payment. Ex. P30 is the statement of account relating to his account in Indian Bank, Clock Town Branch, Royapettah. There were offers of purchase to him for Rs. 70 lakhs. First defendant left his house on 1-2-1995 because of difference of opinion between them. He kept the original documents in a locker available with Dadha Secure Lockers Pvt. Ltd. situate at 365 Mint Street, Madras. He used to be on tour. His wife used to operate the locker most of the time. After coming to known to about the sale of the house, he instructed the locker company not to allow his wife operate the locker. On 30-6-1998, the locker was broke open through Godrej Company. He purchased the suit property from and out of his income in the name of his wife. He is an income-tax assessee. His wife is also an income-tax assessee. 7. Mr. Satnam Singh, an Architect was examined by the plaintiff as P.W. 2. His evidence is that the plaintiff approached him for professional services for designing his residence. Ex. P10 is the Bill submitted by the contractor, viz. Emarald Constructions. Ex. P6 is the agreement between himself and the plaintiff. Ex.P7 is the receipt issued by him. Mahaveer Surana has paid the bill. He could not complete the work in full as per Ex. P6, becuase of pausity of funds. He was not present when payments were made for the bills under Exs. P13, 15 and 17. 8. Mr. Ex. P6 is the agreement between himself and the plaintiff. Ex.P7 is the receipt issued by him. Mahaveer Surana has paid the bill. He could not complete the work in full as per Ex. P6, becuase of pausity of funds. He was not present when payments were made for the bills under Exs. P13, 15 and 17. 8. Mr. Imdad, and Engineer and Builder was examined as P.W. 3. His evidence is that P.W.2 only entrusted the construction work to him. When the suit property was entrusted to him, it was a vacant land. Before commencement of his work, he entered into an agreement with Mahaveerchand Surana. He could not locate the agreement. As per Ex. P20 he carried out the construction work. He used to prepare the Bill and give it to the architect. As and when he finished the work, it had been certified by P.W.2. He did not complete the construction work in full as per the agreement Ex. P8. About 40 to 50 per cent of the work was completed. 9. Mr. Ramaswamy, an Income-tax Officer was examined as P.W.4. He would depose that he cannot say whether Yasodha was assessed to income-tax or not. On perusal of Ex. Cl-A it is seen that Yasodha was assessed to income tax. Ex.C2 is a notice of demand under S. 156 of the Income-tax Act issued to Yasodha. Ex.C3 is the certificate. Copies of income-tax clearance certificates issued to Yasodha is not available in the office. Two certificates were obtained by Yasodha and the files concerned with those two certificates alone are missing. 10. One Noorjahan was examined as P.W.5. P.W. 5 would say that Exs. C4 and C5 are the copies of the certificates issued by the Income-tax Department to Yasodha. These certificates relate to the sale deeds executed by Yasodha in favour of Usha Kothari and Muni Devi. 11. The husband of the second defendant Gautham Chand Kothari was examined as D.W.1. He would depose that he was negotiating the purchase of the suit property. His neighbour Jain introduced D1 as the owner of the property. He met D1 at Kanchipuram Sababathi St., Thondithope, Chennai. D1 and her brother showed the property. He negotiated and finalised the price for Rs. 12 lakhs. D1 was having original title deeds and he also perused the same. He did not enquire the husband of D1. His neighbour Jain introduced D1 as the owner of the property. He met D1 at Kanchipuram Sababathi St., Thondithope, Chennai. D1 and her brother showed the property. He negotiated and finalised the price for Rs. 12 lakhs. D1 was having original title deeds and he also perused the same. He did not enquire the husband of D1. D1 informed him that she was not in cordial terms with her husband. Before the registration, clearance was obtained. Exs. D3 and D4 are the copies of the certificates. By pay order the amounts were paid with D1. Ex.D1 is the document. Ex D2 also stands in the name of D1. Exs. D5 and D6 are the encumbrance certificates. Ex.D7 is the patta in the name of D1. D1 delivered possession of the property on 16-6-1995. After purchase, he put up construction. He is now occupying the suit property. Plaintiff has no right over the same. 12. Mr. Sajanraj was examined as D.W.2. He would depose that he purchased his property in 1989. Originally door No.4 was divided into 3 portions. One was purchased by Sathiyaseelan, second by Yasoda and the third by Nirmala and Purnima. Within one month from the date of his purchase, D1 purchased her property. Negotiations of his purchase and the purchase by Yasodha were made simultaneously. D1 purchased the property for Rs. 3.50 lakhs. After few months D1 asked him for the sale of the property and negotiated with D2 and D3. After negotiation, the price was finalised at Rs.12.00 lakhs. No agreement was entered into. It was straight transaction. The documents were registered and he was present in the Sub-Registrar's Office. D1 received the sale consideration. D1 brought the title deeds to the Sub-Registrar's Office and she handed over the same to the respective purchases. During the said transaction, he has not seen the plaintiff. 13. Arguing for the plaintiff, the learned counsel would submit that the plaintiff was doing business in supply of nylon ropes in the name and style of M/s. Mahaveer Nylon Ropes Co.; that he married the first defendant on 18-11-1976; that out of his business income he acquired the suit properties in the name of his wife for sentimental reasons and for the benefit of his family and their conveninent enjoyment; that the first property was purchased on 6-7-1989 for a consideration of Rs.3.50 lakhs; that Ex. P22 is the registeration copy of the sale deed executed by the previous owner Kamaleshwari while the second property was purchased for a consideration of Rs. 55,000/- and Ex. P23 is the registration copy of the sale deed executed by the previous owner Sathiyaseelan; that it was the plaintiff who negotiated both the sales and paid the whole sale consideration out of his income; that though the said sale deeds were taken in the name of the first defedant, she was only a name lender; that she did not pay any part of the consideration nor was she possessed of any finance to pay for the consideration; that the plaintiff had an account in the Indian Bank, Clock Tower Branch, Royapettah; that he had also an account with Bank of Tamil Nadu, Broadway Branch in the name of Hindu Undivided Family HUF; that the plaintiff has produced Ex. P1 pass book relating to the account maintained in the Bank of Tamil Nadu, Broadway Branch and Ex. P2 is the pass book relating to the account maintained in Bank of Tamil Nadu, Broadway Branch; that Ex. P3 is the pass book relating to his account in Indian Overseas Bank; that Exs. P4 and P5 are the counterfoils of the cheque books; that the plaintiff has filed Ex.P30 statement of account relating to his account in the Indian Bank which would also show the availability of the funds in the hands of the plaintiff and different payments made by him; that a perusal of the above documents would clearly indicate that it was he who paid the consideration in respect of the sale transactions that the plaintiff took a draft on Bank of Tamil Nadu drawn in favour of Kamaleswari, the vendor under Ex. P22; that out of the sale consideration of Rs.3.50 lakhs, the plaintiff paid a cash of Rs. 1.00 lakhs and gave pay order for Rs.2.50 lakhs; that in respect of the second item of property, the plaintiff has paid the entire consideration of Rs.55,000/- by way of cheque drawn on Indian Bank, Clock Tower Branch, Royapettach, Madras; that the plaintiff has all along been income-tax assessee; that when the plaintiff purchased the property it was an old building and after purchase, he demolished the same and with a view to construct a new building, he entered into Ex.P6 agreement with P.W.2 Satnam Singh, an architect; that Ex. P7 is the receipt issued by the said architect; that the architect has also given Ex. P29 letter stating that all the payments were made by the plaintiff; that for the construction of the bungalow in the suit property, the plaintiff entered into an agreement with Emerald Construction as found under Ex. P8; that Exs. P9 to P16 are the receipts issued by the said Emerald Construction to the plaintiff for the payments which the plaintiff made then and there in respect of the constructions made by them;that Exs. P17 and P18 are xerox copies of the bills raised by Emerald Constructions; that Emerald Constructions has also given a certificate as found under Ex. P19 stating that all the payments were made by the plaintiff; that Ex. P20 would also indicate the estimation for the works to be done; that it was the plaintiff who sought sanction of the plan for construction and the plan was sanctioned as found under Ex. P21; that apart from the payments that he has made from his bank accounts, the plaintiff for the sake of construction has also borrowed money by executing promissory notes under Exs. P26 to P28; that he got back the promissory notes after discharge of the debts; that the plaintiff kept all the original documents in a locker available with Dadha Secure Lockers Pvt. Ltd., Mint Street; that the first defendant who used to operate the locker, has removed all the documents and records pertaining to the property; that when there was difference of opininon between the plaintiff and his wife, she was living separately; that without the knowledge of the plaintiff who is the real owner of the property, the first defendant, who was only name lender has sold a part of the property to the second defendant under Ex. P24 on 16-6-1995 for a consideration of Rs. 6.00 lakhs and the other part in favour of the third defendant under Ex. P25 sale deed for a consideration of Rs.6.00 lakhs; that the entire property was purchased by the plaintiff exclusively from out of his income in the name of his wife; that the property would originally fetch Rs.30,000/- rent per month, but the plaintiff has claimed damages only at Rs.20,000/- per month for use and occupation from the date of plaint till the date of delivery. Added further the learned counsel that the plaintiff has filed the above documentary evidence to show that both the suit properties were purchased under Exs. P22 and P23 sale deeds from and out of his income; that it was he who applied for the permission for demolition of the old existing structure and applied for the approval and sanction of the plan for a new construction that he entered into an agreement for putting up new construction and P.W. 2 Satnam Singh, architect was engaged in the construction work; that though the property was purchased and it stands in the name of the first defendant, she has been holding the property as trustee or in fiduciary capacity; that the first defendant is a person of no means and she had no independent source of income or any tangible property from and out of which she could purchase the suit property and as such she cannot claim any exclusive ownership over the property, since it was the plaintiff who has actually paid the entire sale consideration for the purchase of the suit property; that though the plaintiff has been in custody of the original documents, the first defendant has removed all of them viz. sale deeds and other documents pertaining to the suit property, tax receipt, building plan and other papers pertaining to the suit property; that subsequent to the sale by the first defendant, to the defendants 2 and 3, the plaintiff came to know about the same; that the property was purchased in the year 1989 and after demolition and reconstruction, the property is worth several lakhs and thus the first defendant in collusion and connivance with her parents and the second and third defendants has sold the property for Rs. 6.00 lakhs each under Exs. P24 and P25; that the real consideration or value of the property was much more than what is found in the sale deeds; that since the property belonged to the plaintiff, the first defendant did not have any right, interest or title to execute a sale deed or convey the same to the defendants 2 and 3 and thus the sale deeds executed by the first defendant in favour of the defendants 2 and 3 are only sham and nominal and it can be even stated as non est in law. Advancing his further arguments, the learned counsel would add that the apart from producing sufficient documentary evidence, the plaintiff has examined himself to speak of his rights and title in the property and has also examined P.W. 2 Satnam Singh and P.W.3 Imdad from whose evidence it would be clear that it was he who entered into the agreement for construction of a new building in the property and by whom the payments were made to them; that the plaintiff has sought for a declaration that the sale deeds executed by the first defendant is not valid in law on the ground that she did not have any right, title or interest in the property; that she has neither appeared before the Court nor filed any written statement denying the case of the plaintiff; that though the defendants 2 and 3 have filed written statement, they have not been examined either to deny the case of the plaintiff or to speak out their defence; that D.Ws.1 and 2 were utter strangers to all the sale transactions and they were not competent to speak about any material facts in the case; that in order to prove that after the purchase of the suit property with old construction, the plaintiff has entrusted the same for construction of a new bungalow, the plaintiff has examined P.Ws. 2 and 3;that P.W.2 an architect has deposed that he entered into an agreement with the plaintiff as found under Ex. P6 which contained the nature of the work to be done by him for completing the construction; that he has also issued Ex. P7 receipt in respect of the payment made by the plaintiff, that he has also issued Exs. P13, 15 and 17 bills for receipt of the payments from the plaintiff; that Ex.P21 was the plan drawn by him; that P.W.3 a builder with whom the suit property was entrusted as a vacant land for the purpose of construction of a new bungalow has clearly spoken to the fact that Ex. P8 is the agreement entered into with the plaintiff, containing the nature of the work to be executed by him and the mutual obligation between the parties; that he carried out the construction work as per Ex. P8 is the agreement entered into with the plaintiff, containing the nature of the work to be executed by him and the mutual obligation between the parties; that he carried out the construction work as per Ex. P20, that he prepared the bills and used to give the same to the said architect and after the verification, the plaintiff was making payments; that Exs. P9, P11, P12, P14 and P16 were the receipts issued by the said contractor for the payments made by the plaintiff ; that Ex. P19 is the letter issued by the said witness; that the witness has further added that he could not complete the construction in full as per the agreement in view of the request by the plaintiff not to proceed further with the construction work due to shortage of funds; that the plaintiff has examined P.W. 4 Mr. Ramaswamy, an Income-tax Officer Special Ward-IV, Chennai from whose evidence it would be clear that the first defendant was asesseed to income-tax in the status of individual; that the first defendant had applied for the income-tax clearance certificate for the assessement year 1995-96 and his predecessor has issued the same; that Ex. C2 is the notice of demand issued under S. 156 of the Income- tax Act to the first defendant; that a clearance certificate has been obtained by suppressing the facts, since it would be clear from the evidence of Income-tax Officer that while applying for the certificate it might have been stated that she is not assessed to income-tax; that the said witness has also deposed to the fact that the two certificates were obtained by the first defendant but the files concerned in respect of those two certificates were also found to be missing; that a scrutiny of the whole evidence of D.Ws. 1 and 2 would clearly reveal that despite the knowledge as to the strained relationship between the plaintiff and his wife the first defendant, D2 and D3 have purchased the property; that they have admitted that the purchases were made without making any enquiry and thus it would be clear that ths sale transactions found under Exs. 1 and 2 would clearly reveal that despite the knowledge as to the strained relationship between the plaintiff and his wife the first defendant, D2 and D3 have purchased the property; that they have admitted that the purchases were made without making any enquiry and thus it would be clear that ths sale transactions found under Exs. P24 and P25 are outcome of the collusion and connivance between the first defendant on the one side and the defendants 2 and 3 on the other and hence from the available evidence, it would be very clear that it was the plaintiff, who purchased the property and not the first defendant and hence all the aforestated reliefs have got to be granted in favour of the plaintiff. 14. Vehemently opposing each and every one of the contentions of the plaintiff's side, the learned counsel appearing for the defendants 2 and 3 would submit that the contention of the plaintiff that he purchased the suit property in the name of his wife out of the income from his business is false; that it is also equally false that the plaintiff obtained a draft for Rs. 2.50 lakhs drawn on Bank of Tamil Nadu in the name of the vendor Kamaleshwari; that it is also not correct that he paid the sale considerations for the second sale that took place on 23-8-1989; that on account of the misunderstanding between the plaintiff and the first defendant, the first defendant was in exclusive possession and enjoyment of the suit property during the relevant period, and at the time of her separate living she negotiated for the sale of the suit property representing that the suit property was purchased out of her own funds and no other person including the plaintiff had any manner of right, title or interest in the property; that the defendants 2 and 3 made bona fide enquiries and verified the records pertaining to the property apart from scrutinising the sale deeds in favour of the first defendant; that the defendants 2 and 3 came to know that the first defendant was assessed to income-tax even long prior to her purchase; that the first defendant was in possession and custody of all the title deeds and all the records pertaining to the suit property; at the time of the sale deeds under challenge; that the defendants 2 and 3 purchased the property after making a thorough enquiry and satisfied with the title of the first defendant and thus they are the bona fide purchasers for the valuable consideration; that the vacant possession of the property was handed over by the first defendant to the defendants 2 and 3; that the patta in respect of the property which stood in the name of the first defendant was also handed over to the defendants 2 and 3; that it was the first defendant who obtained sanction from the MMDA in her name on 18-7-1990 for putting up new construction in the suit property and after obtaining the sanctioned plan, the construction was partly carried out; at the time of the purchase made by the defendants 2 and 3 from the first defendant; that the municipal assessment was also standing in the name of the first defendant and thus the property was under the exclusive possession and enjoyment of the first defendant at the time of the sale in favour of D2 and D3; that these defendants purchased the property from the first defendant under Exs.P24 and P25 sale deeds for a total consideration of Rs. 12.00 lakhs which was more than the market value of the property at that time; that the plaintiff has filed the documents to make it appear that the amounts were drawn from his bank account and payments were made to the vendors under Exs.P22 and P23 and the said architect; (sic) that a perusal of the bank pass books, it would be very clear that the plaintiff had no sufficient bank balance on 6-6-1989 when the consideration was paid to the vendor for the first sale and that there was only Rs.618/- in his account as on 2-4-1989 and a sum of Rs. 6180/- as on 9-6-1989 and thus there was no bank balance enabling the plaintiff to purchase the suit property in the name of the first defendant; that the entire consideration of Rs. 3.50 lakhs was paid only by the first defendant and the documents filed by the plaintiff would clearly indicate that he had no funds in the bank accounts and he could not have provided any amounts for the purchase of the suit property; that the first defendant was doing a separate business and was having sufficient income; that she was an income-tax assessee and hence it cannot be stated that it was a benami purchase by the plaintiff in the name of the first defendant. Added further, the learned counsel (sic) that S. 3(2) of Benami Transaction (Prohibition) Act 1988 provides that unless the contrary is proved, there is a presumption that the property was purchased for the benefit of the person in whose name the property was purchased; that it is admitted by the plaintiff in the plaint that he purchased the property for the benefit of his family including the first defendant and hence there could not be a benami purchase on the basis of the allegations in the plaint; that the defendants 2 and 3 after making the bona fide purchase of the suit property for a consideration of Rs. 12 lakhs under two sale deeds have spent several lakhs of rupees and completed the construction and they are now in possession of the suit property; that it is pertinent to note that on the date of the sale, the first defendant was in actual and exclusive possession and enjoyment of the property, who handed over the same and the custody of all the original documents and records pertaining to the property; that the first defendant handed over actual possession of the property along with the title deeds to the defendants 2 and 3 and hence it would be futile on the part of the plaintiff to contend that he was negotiating the property for sale and there was a demand for Rs. 17.00 lakhs; that a Commissioner appointed by the Court has filed a report with regard to the condition of the property; that the first defendant alone was the real owner of the property and exercising right of ownership by keeping the custody of the documents; that it was she who applied for demolition of the old building and obtained a new plan for reconstruction and also carried out the reconstruction partly; that from the available evidence it would be clear that the first defendant has no resources and funds to purchase the suit property and that she had no means to purchase the suit property and hence the plaintiff has come forward with this vexatious and frivolous suit in order to blackmail the defendants 2 and 3 and make illegal gain and thus he is not entitled for the relief of declaration in respect of the sale deeds in favour of D2 and D3 and that he is also not entitled for declaration that he is the absolute owner of the suit property, for permanent injunction and for damages as asked for and hence the suit has got to be dismissed. 15. Admittedly, the first defendant is the wife of the plaintiff. The suit property was purchased under two sale deeds Exs. P22 and P23 on 6-7-1989 and 23-8-1989 respectively for a consideration of Rs.3.50 lakhs and Rs.55,000/-. It is also not in controversy that the first defendant has executed two sale deeds as found under Exs. P24 and P25 in favour of the defendants 2 and 3 on 16-6-1995 in respect of the suit properties for a consideration of Rs.6.00 lakhs each. It is also not in controversy that the first defendant has executed two sale deeds as found under Exs. P24 and P25 in favour of the defendants 2 and 3 on 16-6-1995 in respect of the suit properties for a consideration of Rs.6.00 lakhs each. The plaintiff has challenged the two sale deeds executed by his wife, the first defendant herein in favour of defendants 2 and 3 alleging that the subject-matter of these two sale deeds Exs. P24 and P25 viz. the suit property was originally purchased by him in the name of his wife on sentimental reasons, but out of his funds and business income and thus he was the real owner thereof; that the first defendant who had no means to purchase was holding the property as trustee or in fiduciary capacity and as such she had no right to convey the same to the defendants 2 and 3 and thus the sale deeds executed by his wife are sham and nominal and would not be binding on him. The defence of the contesting second and third defendants who are the purchasers of the suit property from the first defendant under Exs. P24 and P25 sale deeds is two- fold. Factually the plaintiff did not possess either means or source or funds to pay for the consideration in order to make the purchase under Exs. P24 and P25 sale deeds. Legally the plaintiff cannot maintain a suit like this in view of the provisions under the Benami Transaction (Prohibition) Act 1998. 16. The plaintiff has come out with a specific case that out of his own business income, he acquired a part of the property measuring 1776 sq. ft. on 6-6-1989 for a consideration of Rs.3.50 lakhs from one Kamaleswari and subsequently acquired an extent of 519 sq.ft. from one Sathiyaseelan by sale deed dated 23-8-1989. In order to prove the sufficiency of funds and payment of consideration for the said sale deeds, Exs. P1 to P5 were filed. Ex.P1 is the pass book relating to the account maintained at Bank of Tamil Nadu, Braodway Branch by Mahaveer Nylon Ropes Company. Ex. P2 is the pass book relating to Mahaveer Chand in Bank of Tamil Nadu, Broadway Branch. Ex.P3 is the pass book which stood in the name of Mahaveer Chand in Indian Overseas Bank. Exs. P4 and P5 are the counterfoils of the cheque books. Ex. P2 is the pass book relating to Mahaveer Chand in Bank of Tamil Nadu, Broadway Branch. Ex.P3 is the pass book which stood in the name of Mahaveer Chand in Indian Overseas Bank. Exs. P4 and P5 are the counterfoils of the cheque books. The plaintiff examined as P.W.1 has deposed that he purchased a part of the suit property from Kamaleswari for a consideration of Rs.3.50 lakhs and the other portion from Sathiyaseelan for Rs.55,000/-. According to him he finalised the transaction through an Advocate Mr. Sundaram who has not been examined. It is further stated by the witness that he took a draft on Bank of Tamil Nadu in favour of Kamleswari; that out of the sale consideration of Rs.3.50 lakhs he paid cash of Rs.1.00 lakh and the rest of Rs. 2.50 lakhs by a pay order; that insofar as the second sale from Sathiyaseelan is concerned, he paid Rs.55,000/- by way of cheque drawn on Indian Bank, Clock Tower Branch, Madras and thus he paid the entire consideration for the purchases. 2.50 lakhs by a pay order; that insofar as the second sale from Sathiyaseelan is concerned, he paid Rs.55,000/- by way of cheque drawn on Indian Bank, Clock Tower Branch, Madras and thus he paid the entire consideration for the purchases. Contrary to the above, he has stated in the cross-examination that the property was purchased in the name of the first defendant on 6-6-1989; that he paid Rs.1.00 lakh to Kamaleswari through an Advocate by cash; that on 6-7-1989 he paid Rs.2.50 lakhs by way of pay order obtained from Bank of Tamil Nadu, where the first defendant has S.B. Account; that there was no ther account in the name of the first defendant in the Indian Bank, Clock Tower Branch; that he did not know whether she had any other account apart from those accounts; that it is denied that it is recited in Ex.P22 that Rs.1.00 lakh was paid by cheque dated 5-5-1989 drawn on Bank of Tamil Nadu; that the cheque was issued for loyal amount from the first defendant's account, but he had deposited money in her account; that he had a receipt for deposit of the amount in the first defendant's account, but she had taken away the receipt; that he had referred account No.765 in the Indian Bank, Clock Tower Branch, that in the plaint the account is shown as the account of Mahaveer Nylon Ropes Company; that Ex.P30 relates to that account; that with reference to Ex.P30, without making a calculation, he could not tell that what was the amount available on 5-5-1989; that the account was an overdraft account; that it showed the debit balance; that as per Ex. P30 his liability to the Indian Bank was Rs.6.26 lakhs; that he did not repay the amount to the Bank; that he closed down the business relating to Ex.P30 about three years ago; that the bank has filed a suit against him for the recovery of the amount; that Ex.P2 is his personal account and the said account was closed about two years ago; that as per Ex.P2 on 22-5-1989, the balance available was Rs.78837/- that Ex.P3 account was opened after the purchae of the property; that as per Ex.P2 on 21-6-1989 he has drawn and gave Rs.35,000/- to the first defendant and Ex.P2-A is the entry therefor; that he had deposited that amount in the first defendant's account to obtain pay order from the Bank for purchasing the property; that he obtained the pay order from and out of the amount available in the first defendant's account; that in para 5 of the plaint he had stated that he had withdrawn money from his account to pay the sale consideration; that there is nothing to indicate that it related to his account because cover page is missing; that the property was purchased under two sale deeds; that the first defendant had account with Indian Bank, Clock Tower Branch, that payment for P.W.3 was made by first defendant's cheque; that the first defendant was an income tax assessee from the date of the marriage; that the first defendant's income tax number was G1 No. 8707-Y-III (8); that up to 1988, the plaintiff was filing the income tax returns relating to the first defendant; and he did not know whether she had submitted returns for the subsequent years. 17. A perusal of Ex. P2 would clearly show that the balance that was available on 22-5-1989 was Rs.788.37 p. and as per Ex.P2-A entry in Ex.P.2 on 21-6-1989 the plaintiff has drawn Rs.35,000/- in favour of Yasoda, the first defendant. It is the case of the plaintiff that a sum of Rs.1.00 lakh was paid by cash on 6-6-1989 and on 6-7-1989 he paid Rs.2.50 lakhs by way of pay order. But the perusal of any one of the documents filed by the plaintiff from Exs. P1 to P5 or Ex. P30 would go to show that he had only minimum amounts to his credit. But the perusal of any one of the documents filed by the plaintiff from Exs. P1 to P5 or Ex. P30 would go to show that he had only minimum amounts to his credit. In respect of entry under Ex.P2-A, the plaintiff himself has admitted that he obtained pay order from and out of the amount available in the first defendant's account. Though it has been specifically pleaded by him that he withdrew money from his account to pay the sale consideration, there is no proof to accept the same. The plaintiff has also admitted that payment for Ex.P23 sale deed was made by the first defendant's cheque. Thus a careful scrutiny of the abovemenioned documents would clearly indicate that he could not have paid the said sale considerations. 18. Though it is admitted by the plaintiff that he was maintaining accounts regarding his business, those accounts are not produced before the Court to prove that he had got sufficient income from his business enabling him to pay for the consideration of the sale deeds or to prove the respective entries of payments in those accounts. The expalanation given by the plaintiff that all those books were taken away by the first defendant is a vainful attempt made by the plaintiff at the time of evidence. The learned counsel for the plaintiff Mr. R. Thiagrajan brought to the notice of the Court that the plaintiff was constrained to borrow monies from the third parties by executing promissory notes, as evidenced by Exs. P26 to P28 for putting up the construction. According to the plaintiff Exs.P26 to P28 were the discharged promissory notes, returned by the promisees. A perusal of Exs. P26 to P28 would clearly indicate that there is no endorsement regarding discharge or cancellation. The plaintiff has not examined any one of the alleged creditors. Thus Exs. P26 to P28 are only self serving documents which could be created at any time to suit the convenience, and they do not have any evidentiary value or consideration. 19. Much reliance was placed on the evidence of P.Ws. 2 and 3. The Court is of the view that their oral evidence and the documents filed through those witnesses would neither advance nor strengthen the case of the plaintiff. 19. Much reliance was placed on the evidence of P.Ws. 2 and 3. The Court is of the view that their oral evidence and the documents filed through those witnesses would neither advance nor strengthen the case of the plaintiff. According to P.W.3, Ex.P8 is the agreement, which he entered into with the plaintiff at the time when the suit property was entrusted to him for the purpose of construction and Exs. P9, P11, P12, P14 and P16 were the receipts issued by him for the receipt of the amounts. P.W.3 has admitted that he was asked to do the work as per the sanctioned plan wherein the first defendant has signed as its owner, but he did not enter into any contract with the owner; that the first defendant used to go to the site and see the work; that he received five or six payments, which were monthly by way of cash and cheque; that he was maintaining accounts; that he did not remeber how much he received by cash and how much received by cheque; that the plaintiff approached him in the year 1994 to give him a letter; that he gave Ex. P19 letter without asking any reason. P.W.3 contractor knowing fully well that the plan for construction was approved and sanctioned in favour of the first defendant, could not have entered into an agreement; with the plaintiff as found under Ex.P8. According to the plaintiff, all the receipts were issued for the payments made and he has not stated any where that those payments were made by issuing cheques. P.W.3 has stated that some payments were made by cash and some other by cheques. But he could not give any details whatsoever. The plaintiff could not correlate any one of those receipts with any entries found in Exs. P1 to P5. 20. According to P.W.2, an architect, an agreement was entered into between him and the plaintiff as found under Ex.P6 which contained the nature of work to be done by him for completing the construction and that he issued Ex. P7 receipt; that Exs. P13, P15, and P17 are also the bills passed by him for payment. But he has admitted that all the building plan applications were filed by the first defendant; that he verified the documents and found that the first defendant was the owner of the property; that Ex. P7 receipt; that Exs. P13, P15, and P17 are also the bills passed by him for payment. But he has admitted that all the building plan applications were filed by the first defendant; that he verified the documents and found that the first defendant was the owner of the property; that Ex. P21 plan is also signed by the owner of the property, the first defendant, but he has not entered into any agreement with the owner; that though he received some payment under Ex. P6, no such mention is made in that regard in Ex.P6; that the said Emerald Construction is his contractor, but he did not have any agreement with the contractor and he did not remember as to how many payments were made to him, but he did not remember when the plaintiff stopped the payment either, or when the work was stopped and he could not say the exact amount received by him from the plaintiff. Thus from the evidence of P.Ws. 2 and 3 it would be clear that even according to them they enered into the agreement with the plaintiff despite the fact that they knew that the first defendant was the owner, and they could not correctly state the amount received by them or any accounts in that regard. Even assuming the payments were made by the plaintiff to P.Ws.2 and 3 as found in the receipts filed by them, all these payments have to be taken as payments made by the plaintiff on behalf of the first defendant, the owner of the property and at no stretch of imagination these payments would indicate that they were made by the plaintiff to P.Ws.2 and 3 as owner of the property. A careful scrutiny of the available evidence adduced by the plaintiff both oral and documentary would clearly indicate that the plaintiff has not proved that it was he who paid the consideration for the purchase of the suit property under Exs. P22 and P23. 21. A careful scrutiny of the available evidence adduced by the plaintiff both oral and documentary would clearly indicate that the plaintiff has not proved that it was he who paid the consideration for the purchase of the suit property under Exs. P22 and P23. 21. It is well settled position of law that the person in whose name the property is purchased is presumed to be the real owner of the property and the onus of proving that the transaction is benami is on the claimant who urges that the property was purchased out of his funds, and in the instant case the plaintiff has miserably failed to prove that it was he who paid the considerations for the purchase of the property. As evident from Exs. P22 and P23 that the consideration for those purchases by the first defendant were paid by her directly to the vendors viz. Kamaleswari and Sathiyaseelan and hence the first defendant in whose name the properties were purchased has to be presumed to be the real owner of the properties. As stated above, the plaintiff has not proved by any documentary evidence that for the purchase of the suit property, he paid the consideration to the vendors. Had it been true, if the contention of the plaintiff that it was he who negotiated the sale with the previous owners and made payment of consideration, he would have well examined the vendors under the two sale deeds under Exs.P22 and P23 viz. Kamleswari and Sathiyaseelan, but he has neither made any attempt nor given any explanation for non-examination of those persons. In a case like this the law would expect the plaintiff who claims to be the real owner and not the first defendant in whose name both the sale deeds stand, to discharge the onus strictly by adducing acceptable and convincing legal evidence of definite character. If this test has to be applied, the Court has to necessarily state that the plaintiff has not done so. 22. If this test has to be applied, the Court has to necessarily state that the plaintiff has not done so. 22. A Division Bench of this Court had an occasion to consider the nature of the burden of proof required in benami transactions in First Income Tax Officer, City Circle V, Madras v. M.R. Dhanalakshmi Ammal (1978) 91 Mad LW 91 SN : 1978 TaxLR 408) wherein it is held as follows : "Held, Bench of this Court consisting of both of us in Ponnuswami Nadar v. Narayana Nadar (1976) 1 Mad LJ 1 : 1977 AIR(Madras) 19), had the opportunity of examining the burden of proof to be discharged by the party who sets up the case of benami nature of transaction. We, in that case, pointed out that the burden would be discharged by satisfying the following well known criteria, viz. (1) the source of purchase relating to the transaction, (2) possession of the property, (3) position of the parties and their relationship to one another, (4) circumstances, pecuniary or otherwise, of the alleged transfer, (5) the motive for the transaction, (6) the custody and production of the title deeds, and (7) the previous and subsequent conduct of the parties, and that each of the above said circumstances taken by itself is of, no particular value and affords no conclusive proof of the intention to transfer the ownership from one person to the other; but a combination of some or all of them and a proper weighing and appreciation of their value would go a long way towards indicating whether the ownership has been really transferred or where the real title lies. We have also held that in every benami transaction the intention of the parties is the essence, that is to say, the true test to determine whether the transaction is benami or not is to look into the intention of the parties, viz., whether it was intended to operate as such or whether it was meant to be colorable; if colourable, the transaction is benami, otherwise the transaction is not benami, and that this issue cannot be displaced by mere conjecture or suspicion as to the various circumstances surrounding the transaction since the very object of a benami transaction is secrecy." 23. When the above test is applied to decide whether the palintiff who sets up the case of benami nature of the transaction, has satisfactorily discharged the burden of proof, the following remains to be stated : (1) A part of the suit property has been purchased under two sale deeds-Exs. P22 and P23 for a consideration of Rs.3.50 lakhs and Rs.55,000/- respectively. The plaintiff has not proved that he had necessary funds or source for the purchase of the properties, when those sale transactions took place. Exs. P2, P4 and P5 do not disclose that he had necessary funds during the relevant time, but on the contrary they would show that he had meagre funds that time. The plaintiff has admitted that Ex. P3 account was opened subsequent to the above transactions. Ex. P30 relates to his Mahaveer Nylon Ropes Company. With regard to Ex. P30 the plaintiff himself has candidly admitted that it was an overdraft account; that it shows the debit balance according to which his liability to the Indian Bank was Rs.6.26 lakhs; that he has not repaid the amount and hence the Bank has filed a suit against him for recovery of the said amount and he has closed his business three years back. In short, it can be well stated that there is no proof that the plaintiff had either funds or source to fund the said transactions. (2) From the available evidence, it would be very clear that the first defendant who obtained possession under Exs. P22 and P23 two sale deeds, continued to be in possession and enjoyment of the property till she delivered the same to the defendants 2 and 3 at the time of execution of the respective sale deeds under Exs. P24 and P25 in their favour. (3) The first defendant has all along been in the custody of the original title deeds of the property, which she has handed over to the defendants 2 and 3, who purchased the property from her. (4) Admittedly, the first defendant is the wife of the plaintiff. The plaintiff has also averred in the plaint that the property was purchased for the benefit of the family and their convenient enjoyment. (4) Admittedly, the first defendant is the wife of the plaintiff. The plaintiff has also averred in the plaint that the property was purchased for the benefit of the family and their convenient enjoyment. Though it was pleaded in the plaint that the properties were purchased by the plaintiff in the name of his wife, the first defendant herein for sentimental reasons, the plaintiff has not stated anything in his evidence in that regard. (5) Subsequent to the purchase of the property under Exs.P22 and P23, it was the plaintiff who applied for the demolition of the old building and made application for the construction of a new building along with the plan for approval. A perusal of Ex. P21 approved plan would go to show that it was the first defendant who has signed the same as the owner of the property. The plaintiff has admitted that the patta in respect of the suit property stood transferred to the name of the first defendant and in the Corporation records also, her name was entered. Thus, it would be clear that after the purchase of the property, the same has been treated as the property of the first defendant and not that of the plaintiff. Applying the above test, as enunciated in the abovesaid decision to the present facts and circumstances of the case would lead to the irresistable conclusion that the plaintiff has not proved that he is the owner of the property either, or he purchased the property out of his funds, and in the name of his wife, the first defendant herein. 24. Placing much reliance on S. 3 (2) of the Benami Transactions (Prohibition) Act, 1988, "nothing in sub-sec.(1) shall apply to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter." A full bench of the Apex Court had an occasion to consider the applicability of the aforesaid provisions of the Benami Transactions (Prohibition) Act, 1988 in a case reported in (Nand Kishore Mehra v. Sushila Mehra) and has held as follows : "Sub-section (1) of S. 3, as seen, prohibits a person from entering into any benami transaction. Sub-section (3) of S. 3, as seen, makes a person who enters into a benami transaction liable for punishment. Section 5 makes properties held benami liable for acquisition without payment of any amount. But when sub-sec. (2) of S. 3 permits a person to enter into a benami transaction of purchase of property in the name of his wife or unmarried daughter by declaring that the prohibition contained against a person in entering into a benami transaction in sub-sec. (1) of S. 3, does not apply to him, question of punishing the person concerned in the transaction under sub-sec. (3) thereof or the question of acquiring the property concerned in the transaction under S. 5, can never arise, as otherwise the exemption granted under S. 3(2) would become redundant. What we have said of the person and the property concerned in sub-sec. (2) of S. 3 in relation to non-applicability of S. 3(3) and S. 5 shall equally hold good for non-applicability of the provisions of sub-ss.(1) and (2) of S. 4 in the matter of filing of the suit or taking up the defence for the selfsame reason. Further, we find it difficult to hold that a person permitted to purchase a property in the name of his wife or unmarried daughter under sub-sec. (2) of S. 3 notwithstanding the prohibition to enter into a benami transaction contained in sub-sec. (1) of S. 3 cannot enforce his rights arising therefrom, for to hold so would amount to holding that the statute which allows creation of rights by a benami transaction also prohibits the enforcement of such rights, a contradiction which can never be attributed to a statute. If that be so, there can be no valid reason to deny to a person, enforcement of his rights validly acquired even in the past by purchase of property in the name of his wife or unmarried daughter, by making applicable the prohibition contained in respect of filing of suits or taking up of defences imposed in respect of benami transactions in general by sub-ss. (1) and (2) of S. 4 of the Act. (1) and (2) of S. 4 of the Act. But, it has to be made clear that when a suit is filed or defence is taken in respect of such benami transaction involving purchase of property by any person in the name of his wife or unmarried daughter, he cannot succeed in such suit or defence unless he proves that the property although purchased in the name of his wife or unmarried daughter, the same had not been purchased for the benefit of either the wife or the unamarried daughter, as the case may be, because of the statutory presumption contained in sub-sec. (2) of S. 3 that unless a contrary is proved that the purchase of property by the person in the name of his wife or his unmarried daughter, as the case may be, was for her benefit." From the above judicial pronouncement, it would be very clear that a person in order to succeed in a suit or defence he should prove that although the property was purchased in the name of his wife or unmarried daughter, the same was not purchased for the benefit of either the wife or the unmarried daughter, as the case may be, because of the statutory presumption contained in sub-sec. (3) or sub-sec. (2). Applying the above decision to the present facts of the case, this Court has to necessarily hold that the plaintiff's claim cannot be sustained. In para 7 of the plaint, the plaintiff has specifically pleaded that the properties were purchased for the benefit of the family and their convenient enjoyment. Except stating that he purchased the property from and out of his income in the name of his wife, the plaintiff has not stated anything in his evidence. As could be well seen from the above decision that in order to succeed in the suit, the plaintiff has to prove that the property has not been purchased for the benefit of his wife, even though it was purchased in her name. Neither the plaintiff has pleaded so nor he has adduced any evidence in that regard. On the contrary, he has specifically pleaded that it was purchased for the benefit and convenient enjoyment of his family, which would include his wife also. The plaintiff has not stated any purpose or object with which the property was purchased other than for the benefit of his family. On the contrary, he has specifically pleaded that it was purchased for the benefit and convenient enjoyment of his family, which would include his wife also. The plaintiff has not stated any purpose or object with which the property was purchased other than for the benefit of his family. Hence the Court is of the considered view that on application of the above decision of the Apex Court to the present facts and circumstances of the case, it has to be necessarily held that the plaintiff's claim is not sustainable. 25. Advancing his further arguments for the plaintiff, the learned Counsel Mr. R. Thiagarajan would submit that when the plaintiff has come with a specific allegation that the properties were purchased out of his income from his business and it was he who paid the wholesale consideration, though the property was purchased in the name of his wife, the first defendant herein; that the first defendant had no means or funds to purchase the suit property and under such circumstances, the only competent person to deny the said allegations would be the first defendant, but the first defendant neither appeared nor filed any written statement; that the defendants 2 and 3 are not competent to speak about the financial position of the plaintiff or the first defendant at the relevant point of time; that they have not examined the first defendant, though a subpoena was taken and she attended the Court one day; that they have not chosen to examine her; the defendants 2 and 3 have not chosen to examine themselves to speak about the facts and averments found in the written statement, but two of their relations viz. D.Ws.1 and 2 have been examined, who were not parties to the sale transactions found under Exs. P24 and P25 nor have they filed their written statements denying the plaintiff's case and under such circumstances, the Court has to draw adverse inference and all the above would be indicating and pointing to the truth of the plaintiff's case. It is true that the first defendant has neither appeared before the Court nor filed a written statement. It is also true that the defendants 2 and 3, who filed the written statement have not been examined. It is true that the first defendant has neither appeared before the Court nor filed a written statement. It is also true that the defendants 2 and 3, who filed the written statement have not been examined. The Court is of the view that the non-examination of either the first defendant or the defendants 2 and 3 could not in any way advance the case of the plaintiff to sustain his claim, because the burden of showing that a transfer is a benami transaction lies on the plaintiff, who has asserted that it is such a transaction. The governing principle for determining the question whether the transaction is benami or not is to be proved by proving that the purchase money came from the person other than the person in whose favour the property is transferred. In the instant case, as stated above, the plaintiff has miserably failed to prove that the purchase money came from him and not from his wife, the first defendant herein, in whose favour the suit property was transferred under Exs. P22 and P23. When the available evidence would clearly indicate that the plaintiff could not have paid for the consideration of the sale, the mere fact that the husband and wife viz. the plaintiff and the first defendant herein were living together would not render it a benami transaction. A reading of Exs. P22 and P23 would clearly reveal that the consideration for the purchase of the suit property passed from the first defendant to the vendors under the document. It has to be borne in mind that it is the plaintiff who wants to prove that those recitals are untrue, must bear the burden to prove the same, and the burden of proving the same cannot be cast on the first defendant to prove that the sale transactions found under Exs. P22 and P23 were consistent with the apparent tenor of the document. When the plaintiff asserts that the real transaction was not what is apparently mentioned in Exs. P22 and P23, the burden is on the plaintiff to establish the transaction what he aserts to be real one. But as narrated above, the plaintiff has not discharged his burden of proving the same satisfactorily and by acceptable evidence. In the absence of the same, he cannot expect the first defendant to prove that the sale transaction found under Exs. But as narrated above, the plaintiff has not discharged his burden of proving the same satisfactorily and by acceptable evidence. In the absence of the same, he cannot expect the first defendant to prove that the sale transaction found under Exs. P22 and P23 was consistent with the terms and tenor of the document. Having failed to discharge his burden by adducing acceptable and sufficient proof, the plaintiff cannot be permitted to say that had the first defendant either filed the written statement or given evidence in Court, he would have proved his case. 26. Placing reliance on a decision of the Apex Court reported in (C. Gangacharan v. C. Narayanan), the learned counsel for the plaintiff would submitted that the suit property was purchased by the plaintiff out of his income in his business for the benefit of the family and the convenient enjoyment and that the property though stood in the name of the first defendant, she was holding the same as trustee or in fiduciray capacity and as such she did not have any exclusive ownership over the property. As discussed above, the plaintiff has not proved that it was he who paid the consideration for the purchase of the suit property by satisfactory evidence. Further he has also specifically pleaded that the property was purchased for the benefit and convenient enjoyment of the family members and under such circumstances in view of the decision of the Supreme Court, cited supra, he cannot sustain his claim. The decision relied on by the plaintiff and reported in cannot be applied to the present facts of the case, for the simple reason that it was a case where the appellant had sent money from abroad to the respondent to enable him to purchase immovable prooperty in the name of the appellant, but the respondent purchased the property in his own name and in the names of his other brothers in India. But in the instant case, the purchase of the immovable property under Exs. P22 and P23 stood in the name of the first defendant and the plaintiff could not prove that those purchases were made out of his money. But in the instant case, the purchase of the immovable property under Exs. P22 and P23 stood in the name of the first defendant and the plaintiff could not prove that those purchases were made out of his money. Apart from that, under the facts and circumstances of the case and considering the relationship of the plaintiff and the first defendant as husband and wife in view of the specific provision under S. 3 (2) of the Benami Transactions (Prohibition) Act 1988, it cannot be held that the first defendant was either holding the property as a trustee or holding the same in fiduciary capacity, and hence the case was governed by S. 82 of the Trust Act. 27. As his last submission, the learned Counsel for the the plaintiff would submit that the first defendant who has all along been an income tax assessee has filed two income tax clearance certificates as found under Exs. C4 and C5, before the registration of Exs. P24 and P25 sale deeds and got them registered; that from the evidence of P.W.4 Income Tax Officer it would be clear that those certificates would have obtained after giving an application stating that she was not assessed to income tax and he has further stated that the certificates were obtained by the first defendant and the files concerned with those two certificates alone were missing and thus it would be clear that she has obtained those certificates in violation of the provisions of the Income-tax Act those sale deeds were not in conformity with the statutory requirements and hence they are to be declared as void and non est in law. In support of his contention, the learned counsel relied on a decision of the Division Bench of this Court reproted in 1996 (1) CTC 620 (Mrs. Shobha Vishwanatha v. D.P. Kingsley). At the outset it has to be stated that the said case decided by the Division Bench was one regarding a question as to the specific performance of an agreement for sale. From the evidence of P.W.4 it is clear that the first defendant was assessed to income tax in 4(8) ward and the witness was not the concerned Officer. At the outset it has to be stated that the said case decided by the Division Bench was one regarding a question as to the specific performance of an agreement for sale. From the evidence of P.W.4 it is clear that the first defendant was assessed to income tax in 4(8) ward and the witness was not the concerned Officer. Apart from that the witness himself has added that the circle Officer might have the concerned records and that he took steps to collect the files from the concerned Officer, but asked them orally and they informed him that the records were not available. Thus it would be clear that the summons has been sent to P.W.4 who was not the concerned Officer. Apart from that even assuming the first defendant has produced those income tax clearance certificates, the competent person to question the same would be the Department and not the plaintiff, who has nothing to do with either the transactions or the property and hence this contention of the plaintiff's side cannot be countenanced. Thus, after careful consideration of the elaborate and lengthy rival deliberations and scrutiny of the documentary evidence, the Court is of the view that the plaintiff has not proved that he is the real owner of the suit property and the sale transactions under Exs. P 22 and P 23 are only benami transactions and hence the Court has to necessarily hold that the plaintiff is not entitled for the declaration that he is the absolute owner of the suit property and consequential delivery of possession. The Court has to further hold that the plaintiff is also not entitled for the declaration that the sale deeds under Exs. P 24 and P 25 dated 16-6-1995 executed by the first defendant in favour of the defendants 2 and 3 in respect of the suit property are sham and nominal and not binding on him, in view of the fact that the first defendant, who was the real owner of the suit property has executed those sale deeds in favour of the second and third defendants for valuable consideration. The plaintiff is also not entitled for the grant of either permanent injunction or the damages, in view of the refusal of the first two reliefs for declaration. All the above issues are answered accordingly. 28. The plaintiff is also not entitled for the grant of either permanent injunction or the damages, in view of the refusal of the first two reliefs for declaration. All the above issues are answered accordingly. 28. In the result, this suit is dismissed with the costs of the defendants 2 and 3. Order accordingly.

Mahaveer Chand Surana, Plaintiff v. Yashoda and Others, Defendants