Research › Search › Judgment

Madras High Court · body

2011 DIGILAW 4223 (MAD)

Mahaveer Chand Surana v. Yashoda

2011-10-04

R.BANUMATHI, V.PERIYA KARUPPIAH

body2011
JUDGMENT V. PERIYA KARUPPIAH, J. ( 1. ) THIS appeal is directed against the judgment and decree passed by the learned single Judge in C.S. No. 1203 of 1995 dated 19.3.2001. ( 2. ) THE ranking of the parties before the learned single Judge are maintained in this judgment. The brief facts of the case of the plaintiff are as follows: The first defendant is the wife of the plaintiff. The marriage between the first defendant and the plaintiff took place on 18.11.1976 at Jain Bhavan, Madras, according to Jain custom. Due to the wedlock, two children, viz., M. Pinky and Naresh Kumar were born to them. The plaintiff acquired the suit property out of his own funds and the plaintiff along with his wife and children were living at No. 93, Portughese Church Street, Madras-1 in 1989. Plaintiff was carrying on business under the name and style of Mahaveer Nylon Ropes Co. The Plaintiff purchased the suit property out of the income from his business. He purchased part of the schedule mentioned property measuring 1776 sq.ft. by a registered sale deed dated 6.6.1989 from Kamaleswari and others for a consideration of Rs. 3,50,000/-. He also purchased 519 sq.ft. of property by a deed of sale dated 23.8.1989 from Sathyaseelan for a consideration of Rs. 55,000/-. The plaintiff purchased the entire suit property in the name of his wife, the first defendant herein. The amount for the purchase of the property was withdrawn from his bank account No. 765 with Indian Bank, Clock Tower Branch, Royapettah, Madras. Further amount was drawn from his bank account No. 2351, 176/1, 1633 held in Bank of Tamil Nadu, now merged with Indian Overseas Bank, Broadway, Madras. Further, the plaintiff 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 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 and completed substantial construction of the property except plastering, plaint washing, mosaic flooring and wooden work etc. 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 and completed substantial construction of the property except plastering, plaint 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 mother?s 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 that his property was sold to the second defendant pursuant to a sale deed dated 16.6.1995. 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. 20,000 to Rs. 25,000 per month from the property. Hence, the suit. ( 3. ) THE averments in the written statement filed by the defendants 2 and 3 are as follows: 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. Hence, the suit. ( 3. ) THE averments in the written statement filed by the defendants 2 and 3 are as follows: 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 for the purchase of 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. 4,64,055/- 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 lakhs. 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 2.4.1989 and a sum of Rs. 6,180/- as on 9.6.1989. 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. 618/- as on 2.4.1989 and a sum of Rs. 6,180/- as on 9.6.1989. 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 of 1995 was dismissed on 2.2.1996 and the O.S. Appeal No. 165 of 1996 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 16.6.1995 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 dismissed with exemplary costs. ( 4. ) THE learned single Judge framed the following issues and entered trial. i) Is the plaintiff entitled for a declaration that he is the absolute owner of the suit property? ii) 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? iii) 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 plaintiff?s rights? v) 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? v) Whether the defendants 2 and 3 are bona fide purchasers of the suit property? and vi) To what reliefs the parties are entitled to? The learned single Judge examined P.Ws.1 to 5 and had admitted Exhibits P-1 to P-32. 20,000/- per month from the date of the plaint till the date of delivery of possession? v) Whether the defendants 2 and 3 are bona fide purchasers of the suit property? and vi) To what reliefs the parties are entitled to? The learned single Judge examined P.Ws.1 to 5 and had admitted Exhibits P-1 to P-32. The husband of the second defendant was examined as D.W.1 and yet another Sajanraj was examined as D.W.2 and Exhibits D-1 to D-11 are marked and the report of the Commissioner and sketch were produced as Exhibits C-1 and C-2 respectively. The learned single Judge considered the evidence adduced on both sides and had come to the conclusion of dismissing the suit. Aggrieved by such decision reached in the judgment and decree passed by the learned single Judge, the plaintiff has preferred the present appeal. ( 5. ) HEARD, Mr. R. Thiagarajan, learned counsel for the appellant/plaintiff and Mr. P.K. Sivasubramanian, learned counsel for the respondents 2 and 3/defendant 2 and 3. No appearance for 1st respondent/lst defendant. ( 6. ) MR. R. Thiagarajan, the learned counsel for the appellant/plaintiff would submit in his arguments that the case of the plaintiff is that the suit property was purchased from the income derived out of his business as the plaintiff had substantial business at the time of said purchase and the first defendant wife, had no wherewithal to pay the sale consideration for the two sale deeds Exhibits P-22 and P-23. He would further submit that the amounts were deposited by the plaintiff in the Bank of Tamil Nadu and also with Indian Bank, Clock Tower Branch, Royapettah, from where the funds were withdrawn and invested for the purchase of the property in the name of his wife, the first defendant. He would further submit that the sale consideration for the said sales held on 6.7.1989 and 23.8.1989 were only paid by the plaintiff and the said property was purchased in the name of the first respondent for sentimental reasons. He would further submit that the first defendant had never exercised absolute right or interest over the said property nor she treated the said property as her absolute property at any point of time. He would further submit that the first defendant had never exercised absolute right or interest over the said property nor she treated the said property as her absolute property at any point of time. He would also submit that he has entered into a contract with the Engineer and Architect for the construction and development of the property after demolishing the existing structures in the suit property. He would further submit that various payments made under Exhibit P-8 to Exhibit P-16 would disclose that the construction had been put up by the plaintiff and the first defendant had no occasion to spend anything towards the construction. He would also submit that the evidence of P.W.2 as well as the Architect P.W.3 would go to show that the money was spent only by the plaintiff and not by the first defendant. He would also submit that the plaintiff has contributed money for the purchase of the suit property and also spent for the subsequent developments in the property. However, the evidence adduced on the aspect were considered by the learned single Judge. He would also submit that the application of Benami Transaction (Prohibition) Act as regards the suit transactions is not correct since abundant evidence were adduced by the plaintiff towards the payment of money to the said sales purchased in the name of the first defendant through Exhibits P-22 and P-23. He would also submit that the money paid for the said sales were furnished by the plaintiff and the first defendant had no wherewithal for arranging the said money for the payment of consideration. He would further submit that the plaintiff had borrowed money under Exhibits P-26 to P-28 for the said purchase and also for putting up constructions and therefore, the first defendant should have been declared only as a name lender and not the actual purchaser. He would also submit that the evidence of the Architect and the Contractor examined as P.W.2 and P.W.3 would go to show that the entire money was provided by the plaintiff for putting up constructions in the suit property. He would also submit that the evidence of the Architect and the Contractor examined as P.W.2 and P.W.3 would go to show that the entire money was provided by the plaintiff for putting up constructions in the suit property. The planning permission was also obtained by the plaintiff in the name of the first defendant and the said document were clandestinely taken away by the first defendant along with the original title deeds from the locker belonging to the plaintiff and such a possession of title deeds and the other documents in respect of the property will not in any way non-suit the plaintiff from claiming so. He would also insist in his arguments that the first defendant has not appeared before the Court nor filed any written statement traversing the plaint allegations and therefore, the averments stated in the plaint as well as the evidence of the plaintiff should have been accepted as against the first defendant. The purchase of the property in the name of the wife is a practice in Marvari community and the said purchase of property was made in the name of the first defendant only on sentimental basis. He would further submit that the judgment relied upon by the learned single Judge in C. Gangacharan v. C. Narayanan (2000) 1 SCC 459 : (2000) 2 MLJ 44 is entirely an error and the facts and circumstances of the case discussed in the said judgment are not applicable. The sale deed standing in the name of the first defendant is attracted under the exception to the provisions of Benami Transaction (Prohibition) Act and the plaintiff has clearly established that the property was purchased by the plaintiff only in the name of the first defendant for the benefits of the joint family had at that time and it was not for the benefit of the first defendant, therefore, the first defendant cannot be considered as the true owner of the property. The subsequent alienation in favour of the defendants 2 and 3 were wanton on the part of the first defendant in view of the difference of opinion had in between the plaintiff and the first defendant and therefore, they cannot be considered as true transaction. The subsequent alienation in favour of the defendants 2 and 3 were wanton on the part of the first defendant in view of the difference of opinion had in between the plaintiff and the first defendant and therefore, they cannot be considered as true transaction. He would also submit that when the first defendant is found to be not the true owner of the suit property, the sale deeds executed in favour of the defendants 2 and 3 through Exhibits P-24 and P-25 are not enforceable and they are nothing but null and void documents. He would also reiterate in his arguments that the first defendant had no source of income to pay the huge amount of sale price during 1989 when the sale deeds were executed in her favour in Exhibits P-22 and P-23 and it was not traversed by the first defendant and therefore, the plea of the plaintiff shall be deemed to have proved. Learned counsel would draw the attention of the Court to a catena of judgments, right from 1932 till date, as follows: 1) NawabMirza Mohammad Sadiq Ali Khan and Others v. Nawab Fakr Jahan Begam and Another AIR 1932 PC 13 : LNIND 1931 PC 76 : (1932) 1 MLJ 320 2) His Highness Maharaja Pratap Sing v. Her Highness Maharani Sarojini Devi 1994 Suppl (1) SCC 734 3) R. Rajagopal Reddy v. Padmini Chandrasekharan AIR 1996 SC 238 : (1995) 2 SCC 630 4) NandKishore Mehra v. Sushila Mehra AIR 1995 SC 2145 : (1995) 4 SCC 572 : (1995) 2 MLJ 84 5) Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S. Shah (1996) 4 SCC 490 : (1996) 2 MLJ 76 6) C. Gangacharan v. C. Narayanan (supra) 7) Valliammalv. Subramaniam AIR 2004 SC 4187 : (2004) 7 SCC 233 : (2004) 4 MLJ 153 8) V. Shankaranarayanan Rao v. Leelavathi (2007) 10 SCC 732 ( 7. ) QUOTING the said judgments, the learned counsel would further emphasis in his arguments that the principles laid down in these judgments regarding the application of provisions of Benami Transaction (Prohibition) Act and as per the said principles, a benami transaction can be had by the husband in the name of wife provided the provisions of Benami Transaction (Prohibition) Act have been promptly complied with. He would also submit that the first defendant has not established that she had purchased the property out of her own funds but she remained exparte and therefore, the transactions had in Exhibits P-22 and P-23 would be declared as merely the benami transactions which was very much proved by the plaintiff. Therefore, he would request the Court that the findings of the learned single Judge for reaching the conclusion of dismissing the suit and the judgment and decree passed thereon may be interfered and set aside and the appeal be allowed and thus the suit may be decreed. ( 8. ) WE also heard Mr. P.K. Sivasubramanian, learned counsel appearing for the respondents 2 and 3/defendants 2 and 3. According to the submission of the learned counsel for the respondents, the plaintiff had miserably failed to prove that the transactions had in Exhibits P-22 and P-23 are benami in nature and that it would come within the exception of the provisions of Benami Transaction (Prohibition) Act. He would further submit that the Benami Transaction (Prohibition) Act came into force on 5.9.1988 and the provisions of the Act except Sections 3, 5 and 8 were deemed to have come into force on 19.5.1988. He would therefore submit that the transactions are squarely attracted under the provisions of Benami Transaction (Prohibition) Act and it is for the plaintiff to strictly explain that he is coming under the exception as mentioned under Section 3 of the Act. He would further submit that the evidence adduced by the plaintiff will not in any way remove or rebut the presumption that the property has been purchased in the name of the first defendant for her benefit only. He would also submit that the defendants 2 and 3 are entitled to defend the case on behalf of the first defendant since they have purchased the property of the first defendant and they are entitled to subrogate the first defendant and defend the case. He would also submit that the defendants 2 and 3 are entitled to defend the case on behalf of the first defendant since they have purchased the property of the first defendant and they are entitled to subrogate the first defendant and defend the case. He would further submit in his argument that the plaintiff did not hold the property in a fiduciary capacity as the beneficiary and the first defendant cannot be held as a trustee, since the money was paid by the first defendant only and the documents produced and marked through the Assistant of the Registration Department would go to show that the first defendant was assessed to Income Tax independently, even before the sale deeds executed in her favour and she was receiving the monthly income of Rs. 30,000/- from and out of the partnership concern had with the plaintiff. He would also submit that the plaintiff himself had admitted in his cross examination, as P.W.1 that he was looking after the Income Tax assessment and filing of returns, of his wife prior to 1988 and thereafter, the first defendant herself took care. The said admission of the first defendant would go to show that the first defendant was an income tax assessee prior to the said transaction and therefore, she has got money to provide for the sale consideration. He would also submit that the sale consideration were paid only by the first defendant by way of a cheque for a sum of Rs. l lakh from her account in Bank of Tamil Nadu and the balance sum of Rs. 2,50,000/- by way of pay order from Bank of Tamil Nadu. Similarly, another cheque was issued by the first defendant only towards the second transaction in Exhibit P-23 for a sum of Rs. 55,000/- and the 1st defendant paid the sale consideration to the vendor Sathyaseelan. In the said circumstances, the learned counsel would submit that the first defendant alone had paid the entire sale consideration and the plaintiff has miserably failed to establish that he had paid money for the said transaction. He would also submit that the evidence of P.W.1 (plaintiff), that he paid in cash but in fact the said amount was paid through cheque by the first defendant is contrary regarding the payment of Rs. l lakh for Exhibit P-22 and this will show the falsity of the plaintiffs claim. He would also submit that the evidence of P.W.1 (plaintiff), that he paid in cash but in fact the said amount was paid through cheque by the first defendant is contrary regarding the payment of Rs. l lakh for Exhibit P-22 and this will show the falsity of the plaintiffs claim. ( 9. ) LEARNED counsel would draw the attention of the Court to a judgment of the Honourable Apex Court in R. Rajagopal Reddy v. Padmini Chandrasekharan (supra) for the principle that the amendment passed in Trust Act through Section of the Benami Transaction (Prohibition) Act would be prospective. Referring to the said judgment, he would submit that the suit transaction which are admitted after introduction of the Benami Transaction (Prohibition) Act, the application of Section 82 of Trust Act is not available for the plaintiff. He would submit that the burden of proving that the transaction had in Exhibit P-22 and Exhibit P-23 are benami in nature was not discharged by the plaintiff and therefore, there is no necessity of producing rebuttal evidence by examining the first defendant. He would also refer to the judgment of the Honourable Apex Court in NandKishore Mehra v. Sushila Mehra (supra) in support of his argument. Referring to the said judgment, he would submit that the alleged purchase of the property in the name of the first defendant should have been proved by the plaintiff not for the benefit of the wife, first defendant. He would further submit that the documents produced by the plaintiff would ever go to show that the construction was put up subsequently and it was abruptly left incomplete and the said incompletion was due to the misunderstanding had in between the plaintiff and the first defendant and if really the transactions were not for the benefit of the first defendant, the constructing the house should have been completed by the plaintiff even if his case of putting up construction are true. He would also submit in his arguments that the income tax records produced would go to show that the property belonged to the first defendant absolutely and she had also submitted the particulars regarding the sources to buy the property by selling gold and silver jewellery and by borrowing monies. He would also submit in his arguments that the income tax records produced would go to show that the property belonged to the first defendant absolutely and she had also submitted the particulars regarding the sources to buy the property by selling gold and silver jewellery and by borrowing monies. In the said circumstances, the case putforth by the plaintiff that he had contributed money for the consideration of those two sale transactions (Exhibits P-22 and P-23) would fail and the case of the plaintiff has been miserably fallen to the ground. The alleged discharge of burden proving the case of the plaintiff has been a farce. He would further submit that the judgment cited by the learned counsel for the appellant/plaintiff are not applicable to the facts and circumstances of the case since the plaintiff had not at all proved the important point that the properties were purchased not for the benefit of his wife the first defendant and therefore, the principles laid down in the said judgments, are not applicable to the facts of present case. Therefore, he would request the Court to dismiss the appeal by confirming the judgment of the learned single Judge with costs. ( 10. ) WE have given anxious thoughts to the arguments advanced on either side. On hearing the arguments of both parties and on perusal of the evidence adduced on either sides, the grounds raised in the appeal memo and the judgment and decree passed by the learned single Judge, we could see the following points emanated for decision in the appeal . 1. Whether the plaintiff had discharged his burden of proving that the sale deeds in Exhibits P-22 and P-23 were purchased not for the benefit of the first defendant? 2. Whether the execution of the sale deeds Exhibits P-24 and 25 on 16.6.1995 by the first defendant in favour of defendants 2 and 3 respectively are mere sham and nominal documents and are not binding on the plaintiff? 3. Whether the plaintiff is entitled for permanent injunction against the defendants as claimed in the plaint? 4. Whether the plaintiff is entitled for damages against the defendants as prayed for? 5. Whether the defendants 2 and 3 are the bonafide purchasers of the property for value? 6. Whether the judgment decree passed by the learned single Judge is liable to be interfered and set aside? 7. 4. Whether the plaintiff is entitled for damages against the defendants as prayed for? 5. Whether the defendants 2 and 3 are the bonafide purchasers of the property for value? 6. Whether the judgment decree passed by the learned single Judge is liable to be interfered and set aside? 7. Is the appeal allowable? ( 11. ) POINT No. 1: The suit has been filed by the plaintiff for the following reliefs: "a. for a declaration that the appellant is the absolute owner of the suit property at 4/1 Audhiappa street, Purasawakkam, Chennai - 600 084. b. for a declaration that the sale deed dated 16.6.1995 , 16.6.1995 executed by the 1st defendant are sham, nominal and not binding upon the plaintiff. c. permanent injunction restraining the defendants or anyone claiming through her form altering the physical features of the property or dealing with the suit property without reference to the plaintiffs rights. d. directing the defendants to pay a sum of Rs. 20,000/- per month as damages for the use and occupation of the property." ( 12. ) THE plaintiff is the husband and the first defendant is his wife. THE factual aspect that they were married in the year 1976 and they were living together till the year 1992 and thereafter some dispute arose in between them and from then, they are living separately and during the joint living, both the plaintiff and the first defendant were living at No. 93 Portughese Church Street, Chennai -1 have not been disputed. It is also not disputed that the plaintiff was carrying on business in Nylon rope company by taking contracts in the Ports. THE property in dispute is the suit property standing in the name of the first defendant. THE plaintiff had also admitted that the property was purchased in the name of the first defendant by virtue of two sale deeds namely Exhibits P-22 and P-23. THEreafter, the existing structures were demolished after obtaining demolition permission and also on obtaining the planning permission, the construction of the house was carried out in the said site and the construction did not reach the completion and it was abruptly stopped with pillars and walls upto the level of the first floor. According to the plaintiff, the first defendant was only a house wife and she had no income to purchase the suit property through Exhibits P-22 and P-23. According to the plaintiff, the first defendant was only a house wife and she had no income to purchase the suit property through Exhibits P-22 and P-23. It is he who had provided monies for the payment of sale consideration to its vendors and it was he who had spent monies for putting up construction in the said property asserting his actual title to the said property. The further case of the plaintiff was that the first defendant was only an ostensible owner and the property was purchased in her name only for sentimental reasons. ( 13. ) THE proposition of law regarding the ownership of any property would be that the person in whose name the property has been purchased is presumed to be the real owner of the property and the burden of proving the transaction as (sic) benami is on the person who asserts that the property was purchased through the funds provided by him. THE suit property was admittedly purchased in the name of the first defendant on 6.7.1989 from one Kamaleeswari and others through Exhibit P-22 and from one Sathyaseelan through the sale deed Exhibit P-23 dated 23.8.1989. Admittedly, on the said dates namely 6.7.1989 and 23.8.1989 the Benami Transaction(Prohibition) Act 1988 was in force. It is also the settled law that the operation of the provisions of the said Act was prospective and it has no retrospective operation and however, the impugned sale transactions namely Exhibits P-22 and P-23 are well after the introduction of the Benami Transaction (Prohibition) Act and therefore, the said Act is squarely applicable to the said transactions in the present case. Accordingly, Section 3 of the said Act, the following provisions are to be strictly followed- "3. Prohibition of benami transactions: (1) No person shall enter into any benami transaction. (2) Nothing in sub-section (1) shall apply to (a) 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;" ( 14. ) ACCORDING to the aforesaid provisions, the presumption has to be necessary drawn in favour of the first defendant that the property was purchased for the benefit of the first defendant in whose name the property has been admittedly purchased. ) ACCORDING to the aforesaid provisions, the presumption has to be necessary drawn in favour of the first defendant that the property was purchased for the benefit of the first defendant in whose name the property has been admittedly purchased. In case, the plaintiff is able to prove that it was not done so, such a transaction can be permitted to be a benami transaction since the first defendant happened to be the wife of the plaintiff. Therefore, it has to be seen whether the properties purchased in the name of the first defendant were not purchased for the benefit of the wife/first defendant by the plaintiff. According to Section 2(a) of the said Act, whenever a property has been purchased by one person for which consideration has been paid or provided by another person, the said transaction is considered to be the benami transaction. Therefore, it has to be established by the plaintiff by cogent evidence as to the providing of funds by the plaintiff to the transactions had in the name of the first defendant in Exhibits P-22 and P-23. The case of the plaintiff was that for the sale deed executed by one Kamaleeswari on 6.7.1989, he has availed overdraft facilities from Indian Bank, Clock Tower Branch for a sum of Rs. 2 lakhs and obtained draft dated 5.5.1989 drawn on the Bank of TamilNadu in the name of the vendor and another sum for Rs. 2,50,000/- and the total sum of Rs. 3,50,000/- was paid to the vendors as mentioned in the said Sale Deed. Similarly, the second sale deed Exhibit P-23 in respect of the remaining property, he paid a sum of Rs. 55,000/- through a cheque dated 23.8.1989 drawn on Indian bank, Clock Tower Branch and purchased in the name of the first defendant on 23.8.1989 from one Sathyaseelan. Whether the said case of the plaintiff has been proved through oral and documentary evidence is the foremost point to be decided. ( 15. ) ACCORDING to the evidence of P.W.1, he has got funds in his accounts held in the banks namely bank of Tamil Nadu, Indian bank and from the said funds, he has provided money to the 1st defendant for the said purchases. He had produced Exhibits P-1 to P-3, passbooks of his bank accounts. ( 15. ) ACCORDING to the evidence of P.W.1, he has got funds in his accounts held in the banks namely bank of Tamil Nadu, Indian bank and from the said funds, he has provided money to the 1st defendant for the said purchases. He had produced Exhibits P-1 to P-3, passbooks of his bank accounts. However, according to the recitals of consideration mentioned in Exhibit P-22 the first sale deed dated 6.7.1989 was purchased from Kamaleeswari and the total consideration is mentioned as Rs. 3,50,000/-. Out of the said amount of Rs. 3,50,000/- a sum of Rs. 1,00,000/- was paid through a cheque dated 5.5.1989 drawn on the Bank of Tamilnadu in the name of the first vendor and the balance of Rs. 2,50,000/- was paid through the pay order dated 4.7.1989 drawn on the Bank of Tamilnadu. When the pass books in Exhibits Pl to P3 are perused, there was no considerable money as on 5.5.1989 in the account of the plaintiff in Exhibit P-2. In order to prove that he has borrowed through overdraft for a sum of Rs. 2 lakhs has not also been referred to in the said account. Furthermore, the plaintiff did not examine the alleged lenders who were said to have advanced loan to the plaintiff through Exhibits P-26 to P-28, in order to prove those transactions. Furthermore, those documents are dated October and November 1989, which are long after Exhibits P-22 and P-23. Moreover, the evidence of P.W.1 would go to show that the said sum of Rs. l lakh was paid by him in cash. The said contradictory evidence would go to the root of the matter which would falsify the case of the plaintiff. It is also an admitted fact that the first defendant was having an account in the Bank of Tamil Nadu, to which an explanation was offered by P.W.1 was that he had provided money for taking pay order by the first defendant for a sum of Rs. 2,50,000/- in the name of the vendors. The said explanation offered by the plaintiff in his evidence was not stated in his pleadings. 2,50,000/- in the name of the vendors. The said explanation offered by the plaintiff in his evidence was not stated in his pleadings. In the plaint, it has been stated that the plaintiff himself has applied for pay order by providing his money in the name of the vendor whereas he had deposed that he provided money to the first defendant for obtaining the pay order in the name of the vendor is also not acceptable. Even on the date when the pay order was obtained, there was no money to an extent of Rs. 2,50,000/- for providing funds to the first defendant for obtaining a pay order in favour of the vendors. The plaintiff had admitted that the first defendant had also accounts in both the banks which would go to show that the first defendant ought to have provided funds for the payment of Rs. l lakh on 5.5.1989 and on 4.7.1989 to obtain the pay order in favour of the vendors. The plaintiff had also admitted that the money available at the first defendant?s account was utilised for the purpose of obtaining the pay order and this would also go to show that the funds for the purchase in Exhibit P-22 was provided only by the first defendant and not by the plaintiff. ( 16. ) AS regards Exhibit P-23 sale deed executed by one Sathyaseelan in favour of the first defendant, the recitals of consideration would go to show that the sum of Rs. 55,000/- was paid by the first defendant through a cheque dated 23.8.1989 drawn in Indian Bank Clock Tower Branch. The case as put forth by the plaintiff regarding the said payment of Rs. 55,000/- is that it was paid by him on behalf of the first defendant would patently fall to ground. Since the cheque drawn in favour of the vendor Sathyaseelan was only issued by the first defendant and that would go to show that the first defendant alone paid the money and not by the plaintiff. 55,000/- is that it was paid by him on behalf of the first defendant would patently fall to ground. Since the cheque drawn in favour of the vendor Sathyaseelan was only issued by the first defendant and that would go to show that the first defendant alone paid the money and not by the plaintiff. Therefore, the case of the plaintiff that he provided funds for both the sale deeds on behalf of the first defendant was neither proved nor acceptable one and therefore, the sale deeds stated to have been obtained by the plaintiff in the name of the first defendant in Exhibits P-22 and P-23 cannot be held to be benami transactions as per the definition of Section 2(a) of the said Act. As far as the constructions made in the suit property after the purchase of the property in the name of the first defendant is concerned, the plaintiff has produced Exhibits P-6 to P-20 to substantiate his case. In support of those documents, the plaintiff also examined P.W.2, an Architect and P.W.3, a Contractor. Their evidence would disclose that P.W.2 was contracted by the plaintiff for designing the residence to be constructed by the plaintiff and the contractor namely Emerald constructions, on whose behalf P.W.3 would depose that he has constructed the structures in the suit property to some extent as per the agreement reached in between himself and P.W.2. He had also submitted that he received money from the plaintiff for putting up the constructions. Whether the said evidence of P.W.2 and P.W.3 would improve the case of the plaintiff has to be considered. ( 17. ) ACCORDING to P.W.3 he entered into an agreement with the plaintiff and Exhibits P-8, P-9, P-11, P-12, P-14 and P-16 were the receipts issued by him for receiving money from the plaintiff. The further evidence of P.W.3 would go to show that the first defendant was not contracted with even though she was the owner. He would also categorically admit that the construction was not completed in full and about 40% of the construction alone would have been done in his contract work. Similarly P.W.2 would depose in his evidence that he has issued receipts in Exhibits P-7, P-13, P-15 and P-17 for the money received from the plaintiff. He would also categorically admit that the construction was not completed in full and about 40% of the construction alone would have been done in his contract work. Similarly P.W.2 would depose in his evidence that he has issued receipts in Exhibits P-7, P-13, P-15 and P-17 for the money received from the plaintiff. However, he would categorically admit that the plan and other permits were obtained only by the first defendant and he has verified the documents before entering into an agreement with the plaintiff in which he would find that the first defendant was the owner. The evidence of these two persons would go to show that they entered agreements with the plaintiff despite the first defendant was the owner of the property. In their evidence, it is further found that they are stated to have been paid through cash by the plaintiff. There is no other payment made by the plaintiff through cheques or any other instruments to show the transactions are bona fide. Even if the evidence of P.W.2 and P.W.3 are totally accepted, during the said period the plaintiff and the first defendant were living cordially and there is no prohibition for the plaintiff as a husband of the first defendant, to manage the construction work, on behalf of his wife, the first defendant. The mere expenditure incurred by the plaintiff on behalf of the first defendant would not make him, the owner of the property as the parting of consideration to the sale deeds in Exhibits P-22 and P-23 were found paid by the first defendant. As already discussed and found, the plaintiff has already obtained overdraft facilities from Indian Bank for more than Rs. 6 lakhs and he was not able to pay the said debts and the Indian Bank had already launched case proceedings against the plaintiff. Therefore, there could not be any fund at the hands of the plaintiff and the presumption would be that the plaintiff could not provide funds for the said construction of the building at the site belonging to the first defendant. Therefore, the evidence of P.W.2 and P.W.3 are not helpful to advance the case of the plaintiff. ( 18. Therefore, there could not be any fund at the hands of the plaintiff and the presumption would be that the plaintiff could not provide funds for the said construction of the building at the site belonging to the first defendant. Therefore, the evidence of P.W.2 and P.W.3 are not helpful to advance the case of the plaintiff. ( 18. ) AS regards the evidence of P.W.4, the Income Tax Officer, he had categorically spoken in his evidence that the first defendant is assessed to Income tax in Ward IV(8) and the records would be available only with the Circle Officer, concerned. The evidence of P.W.1 would also go to show that after the purchase of the property in her name, the first defendant had looked after the filing of Income tax returns on her own. Therefore, we could see that the first defendant was assessed to Income tax even prior to the dates of purchase of the property through Exhibits P-22 and P-23. The Income Tax Clearance Certificate issued by Income Tax Officer and the declaration given by the first defendant produced in Exhibit D-11 would go to show that she had purchased the property by loan borrowed from various individual members and by selling gold and silver jewels had by her . She had also mentioned that she is the absolute owner of the property in the said declaration. Similarly, the document produced in Exhibits C-2 and C-5, she had also referred to Exhibit D-12 declaration wherein she had referred, the property as her absolute property. Exhibit C-4, the income tax return submitted for the assessment year 1988-89 would also go to show that she was assessed to income tax at the time when she purchased the property in Exhibit P-22 and P-23. All these documents would go to show that the first defendant had independent income and the sources for the purchase of the property under Exhibits P-22 and P-23 and the recitals of consideration shown in both the documents were paid by 1st defendant only out of her funds which were effeted through cheques and pay orders. All these documents would go to show that the first defendant had independent income and the sources for the purchase of the property under Exhibits P-22 and P-23 and the recitals of consideration shown in both the documents were paid by 1st defendant only out of her funds which were effeted through cheques and pay orders. In the said circumstances of the case, when we peruse the judgment cited by the learned counsel for the plaintiff in NawabMirza Mohammad Sadiq Ali Khan and Others v. Nawab Fakr Jahan Begam and Another (supra), it has been laid as follows: "Where in the case of gift by husband to his wife it is contended that the gift deed is merely colourable, there being no intention on the part of the donor to transfer the property to the donee; the objection being against the toner of the deed, the burden of proof is clearly upon those who dispute the gift." The aforesaid principle laid down by the Privy Council is not disputable but it is not applicable to the present case since the transaction itself is found to be not a benami one. ( 19. ) THE judgment as cited in His Highness Maharaja Pratap Singh v. Her Highness Maharani Sarojini Devi and Others (supra) we could see that the following passage was relied upon by the learned counsel for the plaintiff. "Though the question whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or 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 the 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 aforesaid proposition of law is also a settled one. Even according to the plaintiff, the custody of title deeds to the suit property in Exhibits P-22 and P-23, the planning permission and permit granted to the said property were available only with the first defendant. Even though the plaintiff has stated that she has taken away the said document from his locker clandestinely, he has not produced any document to show that he has given any complaint against his wife for such act. It is not the case of the plaintiff that the said locker was in a joint operation locker so as to permit his wife to operate the said locker. THErefore, the evidence of the plaintiff in this regard cannot be relied upon and the custody of the title deeds with the first defendant would go to show that the transaction was not a benami one. ( 20. ) YET another judgment in NandKishore Mehra v. Sushila Mehra (supra) has been relied upon by the learned counsel for the plaintiff and the relevant passage would run as follows: "When Section 3(2) permits a person to enter into a benami transaction of purchase of property in the name of his wife or unmarried daughter, the question of punishing him under Section 3(3) or the question of acquiring the property concerned under Section 5 can never arise. The same reason shall equally hold good for non-applicability of the provisions of sub-sections (1) and (2) of Section 4 in the matter of filing of the suit or taking up the defence. Further it cannot be held that such a person cannot enforce his rights in the property, the purchase whereof was permitted by Section 3(2). Therefore, there is 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-sections (1) and (2) of Section 4 of the Act. But, it is clarified that a person cannot succeed in such suit or defence unless he prove 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 unmarried daughter, as the case may be, because of the statutory presumption contained in sub-section (2) of Section 3." In the aforesaid judgment, it has been categorically laid down that when the person who has pleaded benami in the name of his wife or unmarried daughter has not proved that it was not purchased for the benefit of his wife or unmarried daughter, he is barred under Section 4 of the said Act either to pursue as plaintiff or to defend the case as defendant. As far as this case is concerned, we have already dealt with in the previous paragraphs on the basis of the evidence adduced by the plaintiff that he had miserably failed to prove, contradictory to the fact that it was purchased for the benefit of his wife. Therefore, the aforesaid judgment would be against the case of the plaintiff. In the judgment in Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S. Shah (supra), the relevant passage reads as follows at p. 77 of MLJ: "5. 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 wellnigh 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 (BhiumSingh v. Kan Singh ;CED v. Aloke Mitra; Pratap Singh v. Sarojini Devi) 6. This is, of course, a rebuttable presumption (BhiumSingh v. Kan Singh ;CED v. Aloke Mitra; Pratap Singh v. Sarojini Devi) 6. In this case, as it is admitted that defendant is the recorded owner and when purchase money had not admittedly gone from the appellant for execution of the sale deed of 1963, it is an uphill task for the appellant to establish that the sale deed was taken benami for him. Of course, the appellant had projected certain circumstances to show that he was dealing in lands for which defendant had advanced money to him." ( 21. ) YET another judgment was relied upon by the learned counsel for the respondent in C. Gangacharan v. C. Narayanan (supra) and argued that the position of the plaintiff would be the beneficiary of the transaction in which the first defendant was placed in a fiduciary capacity as a trustee and as per Section 82 of the Trust Act, the first defendant was holding the property for and on behalf of the plaintiff. He would rely upon the relevant passage in the said judgment which reads as follows at p. 45 of MLJ: "4. ... In the present case, the High Court on 27.8.1987, as its evident from the passage quoted hereinabove, had given a categorical finding to the effect that the respondent herein was only a trustee and the case was governed by Section 82 of the Indian Trusts Act. Section 4 which contains the prohibition to recover the property held benami expressly provides in sub section (3), Clause (b) that the said section is not to apply, inter alia, in a case where the property is held in the name of a trustee. In view of the finding of the High Court in its judgment of 27.8.1987 that the property was being held in the name of the respondent as a trustee, the question of the respondent invoking the provisions of the Benami Transactions Ordinance or the Act did not arise. The provisions of the Act did not prohibit a suit being filed against a trustee for the recovery of the trust property." According to the said judgment, the person on whose name, the property was purchased by another person can file a suit under Section 82 of the Trust Act. The provisions of the Act did not prohibit a suit being filed against a trustee for the recovery of the trust property." According to the said judgment, the person on whose name, the property was purchased by another person can file a suit under Section 82 of the Trust Act. However, the learned counsel for the defendants 2 and 3 would submit that Section 82 of the Trust Act has been repealed as per Section 7 of the Benami Transaction (Prohibition) Act and moreover in the said case, the High Court had given a finding that Section 82 of the Indian Trust Act was not applicable to the said person in that case even though the transactions had in the said case. were prior to the introduction of the Act in the year 1988, and therefore, the said judgment is not applicable to the present facts of this case. On a careful understanding of the said judgment, we could see that the facts in this case are different from the facts discussed in the aforesaid judgment and the contention of the learned counsel for the defendants is acceptable and therefore, it is not applicable to the present case. ( 22. ) IN the judgment of the Honourable Apex Court in Valliammal(D) by LRs. v. Subramaniam and Others (supra), the relevant passage would read as follows at p. 157 of MLJ: "12. There is a presumption in law that the person who purchases the property is the owner of the same. This presumption can be displaced by successfully pleading and proving that the document was taken benami in the name of another person for some reason, and the person whose name appears in the document is not the real owner, but only a benami. Heavy burden lies on the person who pleads that the recorded owner is a benami-holder." IN the aforesaid judgment, it has been categorically found that heavy burden lies on the person who pleads that the record holder is a benami holder is the settled principle. It has been already found that the plaintiff has not discharged his burden and therefore, the said judgment is not in favour of the plaintiff. As regards the judgment in V. Shankaranarayana Rao v. Leelavathi (supra) cited by the learned counsel for the respondents, the relevant passage would read thus: "11. It has been already found that the plaintiff has not discharged his burden and therefore, the said judgment is not in favour of the plaintiff. As regards the judgment in V. Shankaranarayana Rao v. Leelavathi (supra) cited by the learned counsel for the respondents, the relevant passage would read thus: "11. Principle on the basis whereof determination of the question as to whether a transaction is a benami one or not depends upon a large number of factors. Some of them had been noticed by this Court in ThakurBhim Singh v. Thakur Kan Singh in the following terms: "18. 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 facie assumed 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." The aforesaid principles laid down by the Honourable Apex Court would confirm to the points to be noted before holding any transaction as a benami transaction. In the evidence as already discussed by us, it has been found that the plaintiff had miserably failed to establish that he had paid the sale consideration for the transactions had through Exhibits P-22 and P-23 in the name of the first defendant. In the said circumstances, the plaintiff has not at all discharged his burden and proved his case and therefore, the aforesaid judgment is also not helpful to the plaintiff. ( 23. In the said circumstances, the plaintiff has not at all discharged his burden and proved his case and therefore, the aforesaid judgment is also not helpful to the plaintiff. ( 23. ) LEARNED counsel for the plaintiff would further emphasis in his arguments that the case of the plaintiff putforth in the plaint is not denied by the first defendant either by filing the written statement or by examining herself controverting the averments made therein and therefore, it has to be deemed as proved. The further submission of the learned counsel for the plaintiff that the defendants 2 and 3 were also not examined but the husband of defendants 2 and yet another person have been examined and therefore, adverse inference could be drawn against them and the plaintiffs case ought to have been accepted in that contingency. No doubt, it is true that whenever any person has not appeared before Court, adverse inference would be drawn against them. As far as this case is concerned, whether such adverse inference could be drawn against the 1st defendant and others is the question. We have already seen that the burden is heavy on the back of the plaintiff to show that the sale deeds Exhibits P-22 and P-23 were entered in the name of the first defendant not for the benefit of the first defendant. At the moment when it is established that the property was purchased in the name of the first defendant for her benefit only, it cannot be held as benami transactions. Similarly, when the funds provided for the said transactions were not established by the plaintiff, that they were provided by him only, it cannot be said as benami transaction. In such circumstances, the presumption regarding the ownership of the property in favour of the 1st defendant was not at all rebutted by adducing acceptable evidence by the plaintiff and the presence of the first defendant or other defendants are not at all necessary for the purpose of denying and deposing against the case of the plaintiff. Therefore, we are of the considered opinion that the learned single Judge was perfectly on the right side to come to the conclusion that the plaintiff had not discharged his burden, cast on him by adducing acceptable evidence to show that the transactions had in Exhibits P-22 and P-23 are benami transactions. Therefore, we are of the considered opinion that the learned single Judge was perfectly on the right side to come to the conclusion that the plaintiff had not discharged his burden, cast on him by adducing acceptable evidence to show that the transactions had in Exhibits P-22 and P-23 are benami transactions. Therefore, as regards point No. 1 we are of the considered opinion that the plaintiff had miserably failed to prove the sale deeds in Exhibits P-22 and P-23 were purchased, not for the benefit of the first defendant. ( 24. ) POINT Nos. 2 and 5: The plaintiff has also claimed the relief to, declare the sale deeds executed by the first defendant in the names of defendants 2 and 3 separately on 16.6.1995 as sham and nominal documents and are not binding on the plaintiff. D.W.1 and D.W.2 were examined on behalf of defendants 2 and 3 to speak about the purchase from the first defendant through Exhibits P-24 and P-25. The husband as D.W.I and and another person as D.W.2 were examined on their behalf to speak about the transactions had in between D2 and D3 and the first defendant under Exhibits P-24 and P-25. It was found that the first defendant had valid title over the suit property and naturally those sale deeds are also to be as true and genuine transactions. Therefore, they cannot be declared as a sham and nominal documents as sought for by the plaintiff. The said transactions will certainly bind against any person muchless the plaintiff. Therefore, we also concur with the finding of the learned single Judge in these points also. Point Nos. 3 and 4: The plaintiff has asked for permanent injunction against the defendants and also claimed damages from the defendants. In the earlier points, we have come to the conclusion that the plaintiff has no semblance of right over the suit property and the claim of the plaintiff that the transactions in Exhibits P-22 and P-23 are benami in nature have been rejected and the first defendant was found to be true owner of the said property and she was found entitled to sell the property in favour of the defendants 2 and 3. It is also found that the defendants 2 and 3 are the owners of the property through the purchases made in Exhibits P-24 and P-25. It is also found that the defendants 2 and 3 are the owners of the property through the purchases made in Exhibits P-24 and P-25. When it is found that the plaintiff is not entitled to the suit property he cannot maintain any claim restraining the defendants 1 and 2 from interfering with his right and interest over the said property, since the defendants 2 and 3 are the true owners. It is a settled law that no injunction can be granted against true owners. Therefore, the plaintiff is not entitled to the relief of permanent injunction as sought for by him. The same ratio is applicable for the relief sought for by him towards damages against the true owners of the property. For the forgoing discussion, we are also constrained to decide these two points against the plaintiff. ( 25. ) POINT Nos. 6 and 7: In view of the findings reached in the aforesaid points, the judgment and decree passed by the learned single Judge after elaborate discussion in each and every point are not interfereable and no reason is found to set aside the findings made in the judgment and decree passed by the learned single Judge. Therefore, we are of the considered opinion that the judgment and decree passed by the learned single Judge is liable to be confirmed and the appeal preferred by the plaintiff is to be dismissed. ( 26. ) IN fine, the appeal filed by the appellant against the judgment and decree passed by the learned single Judge is dismissed with costs.