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Madras High Court · body

2009 DIGILAW 4611 (MAD)

G. Ramasami v. R. Kamala & Others

2009-11-01

G.M.AKBAR ALI

body2009
Judgment :- The plaintiff is the appellant in the suit and the appeal is preferred against the judgment and decree dated 23.09.1999 made in A.S. No.282 of 1998 on the file of the Sub-court, Kovilpatti confirming the judgment and decree dated 25.08.1998, made in O.S. No.14 of 1997, on the file of the District Munsif Court, Kovilpatti, and the suit is filed for declaration and injunction. 2. The brief facts of the case is as follows: The plaintiff and the first defendant are the husband and wife. The plaintiff is a doctor. According to the plaintiff, he had purchased the suit property in the name of the defendant from one Mrs. Ponnaiah, on 12.06.1975 for a sum of Rs.9,000/-. The property was purchased for the plaintiff and he never intended to give the property to the defendant. The plaintiff was in possession and enjoyment of the property and the title deeds were also in the possession of the plaintiff. Later, difference of opinion arose between the defendant and plaintiff and they were living separately. The defendant claims title of the property. Therefore, the suit is filed for declaration and injunction. 3. The defendants denied that the suit property was purchased as benami in the name of the defendant. She raised certain allegations regarding the conduct and the character of the plaintiff. The trial Court framed triable issues and on analysing the oral and documentary evidence, it found that the suit property was not purchased as benami and therefore dismissed the suit. The appeal preferred by the plaintiff was also dismissed on the same grounds, against which, the plaintiff has preferred the present appeal on the following grounds. “1. that the courts below failed to see that even in the endorsements on the sale deed before the Registrar in Ex.A. 1 it is clearly stated that only the appellant paid the sale consideration on behalf of the resp, vendee therein 2. that the courts below failed to see that the appellant has proved beyond doubt the principles governing the question of benami transaction as follows: (a) The appellant purchased the suit property only for the purpose of constructing a hospital for his son, who is also a doctor, which factor goes to show that the appellant did not intend to purchase for the benefit of the respondent. (b)The appellant being a doctor who had sufficient income on the date of the transaction paid the purchase money himself. Even though Exs. B.1 and B.2 pass books stand in the name of the respondent, the moneys deposited in it were only by the appellant. Therefore, the purchase is prima facie assumed to be for the benefit of the appellant who supplied the purchase money. .(c) The intention of the appellant who contributed the purchase money was to put up a hospital there for himself and for his son who is a doctor. 3. that the courts below erred in holding that the appellant had not stated that the moneys deposited in Exs.B.1 and B.2 are paid by him. 4. that as per Ex.A.10 release deed, the respondent received a sum of Rs.25,000/- even in 1963, but the respondent has stated that the bank account was open only after the appellant started his private practice. The reason for opening 2 bank account on the same date is not explained by the respondent. 5. that the sale under Exs. B.11, B.9 and B.10 were for the benefit of the respondent has not been proved by the respondent when the person who advances that the sale was only benami and not to benefit the name lender the burden shifts on the persons who claims benefit under the sale. 6. that the courts below have not correctly approached the principles governing the decision of the benami transaction”. 4. On admission of second appeal, the following questions of law were formulated: 1. Is the courts below correct in dismissing the suit when the appellant has categorically established the Ex.A.1 transaction was benami in the name of his wife? 2. Are the courts below correct in holding that the plaintiff has no cause of action based on Ex.A.11 when the same is obtained by coercion and undue influence? 5. Mr. S. Parthasarathy, the learned Senior Counsel appearing for the appellant would submit that the courts below failed to appreciate the principles governing the Benami transaction and would state that the appellant has purchased the property only for the purpose of constructing a hospital and never intended to purchase the property for the benefit of the wife and the appellant being a doctor, had sufficient income and paid the purchase money and the title deeds are also with the appellant. 6. Mr. 6. Mr. R. Subramanian, learned Senior Counsel appearing for the respondent would submit that the appellant is not entitled to take the plea of Benami transaction after commencement of the Benami Transaction Prohibition Act, 1988. He further pointed out that under the Act, if the property is purchased by the husband in the name of his wife, the same is presumed to be for the benefit of the wife, unless the contrary is proved. The learned counsel also pointed out that the sale consideration was paid by the defendant through her bank account and the courts below have correctly found that the plea of benami transaction is not sustainable and also the same is not proved by the plaintiff. 7. I have carefully considered the rival contentions. The suit property was purchased under Ex-A.1 dated 12.06.1975. The suit was filed on 24.01.1997, the Benami Transaction (Prohibition) Act, 1988 came into force on 5th September 1988. Section 4 of the Act reads as follows: 4. Prohibition of the right to recover property held benami. – (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. .(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. .(3) Nothing in this section shall apply,- .(a) where the person is whose name the property is held is a coparcener in a Hindu Undivided family and the property is held for the benefit of the coparceners in the family; or .(b) Where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity”. 8. 8. As per Section 3(2) of Benami Transaction Act, the purchase of property by any person in the name of his wife or unmarried daughter is permissible and it shall be presumed the purchase is for the benefit of the wife or daughter unless the contrary is proved. Therefore, the suit by a husband against the wife, claiming Benami transaction is not barred under the Benami Transaction Prohibition Act 1988. However, under Section 3(2)(a), the burden is on the husband to prove that it is not for the benefit of the wife otherwise the presumption shall apply. 9. The main considerations for deciding whether a transaction is benami or not is now well settled. The considerations are, (a) source of purchase of money (b) manner of enjoyment (c) that the transfer was not intended to be gift in favour of person in whose name transfer is taken (d) custody of title deed (e) motive for transaction (f) relationship between claimant and the alleged benamidhar (g) conduct of parties in dealing with properties after sale. 10. The courts below have concurrently found that all the above considerations are in favour of the wife. Ex.P.1 is the Indian Bank passbook in the name of the respondent/defendant. Certain amounts has been drawn prior to the execution of the sale deed. The explanation of the husband is that he only deposited the said amounts in the wife’s account and the same was drawn and paid for the sale considerations. But there is no proof. The manner of enjoyment of the property by the wife was also proved by various documents. The crucial factor is whether the husband has proved that the property was not intended for the benefit of the wife but purchased for some other purpose. The defendant has stated that as a doctor, he wanted to construct a hospital in the suit property and it is not purchased for the benefit of the wife. All was not well with the parties. They are separated for more than 25 years. They have almost become senior citizens. The courts below more particularly the first appellate Court being the last court on facts, categorically came to the conclusion that the plaintiff has not purchased the property for his own benefit in the name of his life. The courts below have found that it is not a benami transaction. 11. They have almost become senior citizens. The courts below more particularly the first appellate Court being the last court on facts, categorically came to the conclusion that the plaintiff has not purchased the property for his own benefit in the name of his life. The courts below have found that it is not a benami transaction. 11. It is held in Sundaram Nadar versus Sukumaran reported in 2000 (III) CTC 473 =2001-2-L.W.439, that the question whether a property is held benami or not is a question of fact and not a question of law. 12. The Courts below had already dealt with the question of fact finding that the purchase of the property is not a benami transaction and I have no reason to interfere with, the questions of law are answered accordingly. The second appeal is liable to be dismissed. In the result of Second Appeal is dismissed. No Costs.