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2012 DIGILAW 460 (MAD)

R. Pazhanisamy v. R. Selvi

2012-01-30

T.RAJA

body2012
Judgment :- 1. The present Second Appeal is filed by the unsuccessful first defendant as against the concurrent finding of both the Courts below. 2. This Court, at the time of entertaining the second appeal, has framed the following substantial questions of law:- (a) Whether the Court below is correct in holding that the property standing in the name of the appellant/first defendant is not the property of the appellant/first defendant in the absence of any pleading and proof that the property was purchased as benami by the father of the appellant/first defendant? (b) Has not the Lower Appellate Court committed a gross mistake of law by holding that the Ex.B2 and B3 the sale deeds in favour of the appellant/first defendant as benami and upholding the enforcement of benami in favour of the plaintiff when Section 4 of Benami Transactions (Prohibition) Act,1988 prescribes any such enforcement of Benami transaction? (c) Whether the suit for partition is not at all maintainable without setting aside the partition deed dated 02.02.1990 which has been marked as Ex.B4 in the suit? 3. The learned counsel appearing for the appellant/first defendant while challenging the concurrent findings of both the Courts below have strenuously contended that the first appellate Court has committed gross mistake in law by holding that the Exs.B2 and B3 sale deeds made in favour of the appellant/first defendant are benami transaction and upheld the enforcement of benami in favour of the plaintiff, when Section 4 of Benami Transactions (Prohibition) Act,1988 prohibits any such enforcement of benami transaction. 4. The case of the first respondent/plaintiff herein in brief is as follows: - The plaintiff/first respondent herein has filed the suit for partition claiming a preliminary decree to the extent of 1/7th share in the compensation amount for the first schedule property and also plaintiff's 1/7th share in the II schedule property. The trial Court, by giving a finding in favour of plaintiff, has decreed the suit as prayed for. Aggrieved by the judgment and decree passed by the learned trial Court, the appellant/first defendant has filed the appeal before the learned Principal District Judge, Cuddalore in Appeal No.128 of 2004. During the pendency of the appeal, the first defendant/appellant herein has also filed I.A.No.73 of 2006 to receive some additional documents in support of his case before the first appellate Court. During the pendency of the appeal, the first defendant/appellant herein has also filed I.A.No.73 of 2006 to receive some additional documents in support of his case before the first appellate Court. Having considered the background, on which application in I.A.No.73 of 2006 for receiving the additional documents came to be filed, the first appellate court dismissed the same. Finally, after having considered the issue raised, the first appellate court modified the judgment and decree passed by the trial Court and partly allowed the appeal holding that the defendants 1 to 3 are jointly and severally liable to pay the 1/8th share in the compensation amount received by them relating to acquisition of properties described in the plaint first schedule and that the first respondent herein is entitled to approach the trial court for getting appointed an Advocate-Commissioner for division and allotment of her 1/8th share in the 'B' schedule properties. During final decree proceedings, the exact 1/8th share of the plaintiff in the Land Acquisition compensation amount shall be fixed and ordered to be recovered from the defendants 1 to 3 by the plaintiff. Under the said circumstances, when the second appeal came up for admission, as mentioned earlier, this Court formulated the following three substantial questions of law as follows:- (a) Whether the Court below is correct in holding that the property standing in the name of the appellant/first defendant is not the property of the appellant/first defendant in the absence of any pleading and proof that the property was purchased as benami by the father of the appellant/first defendant? (b) Has not the Lower Appellate Court committed a gross mistake of law by holding that the Ex.B2 and B3 the sale deeds in favour of the appellant/first defendant as benami and upholding the enforcement of benami in favour of the plaintiff when Section 4 of Benami Transactions (Prohibition) Act,1988 prescribes any such enforcement of Benami transaction? (c) Whether the suit for partition is not at all maintainable without setting aside the partition deed dated 02.02.1990 which has been marked as Ex.B4 in the suit? 5. (c) Whether the suit for partition is not at all maintainable without setting aside the partition deed dated 02.02.1990 which has been marked as Ex.B4 in the suit? 5. The learned counsel appearing for the appellant contended that when the properties viz., item Nos.2 & 3 shown in second schedule were purchased by the first defendant's father in the name of first defendant, admittedly, the Courts below ought to have seen as to whether the transaction took place for purchasing of Item Nos.2 & 3 in the second schedule are not benami transaction and if for any reason, the transaction that took place in purchase of the above mentioned properties are benami transaction, then the Courts below should have dismissed the suit for partition. In support of his submissions, he has also referred to Section 2,3 & 4 of the Benami Transactions (Prohibition) Act,1988 for a proposition that what had taken place is only a benami transaction that means any transaction in which property is transferred to one person for a consideration paid or provided by another person. According to the first defendant before the trial Court, if his father has purchased the suit property viz., item Nos.2 & 3 of the second schedule in the name of the appellant/first defendant, unless, the Court gave a clear and categorical finding as to the fact whether the transaction for purchase of the properties by the plaintiff's father in the name of first defendant, the prayer sought for partition either 1/7th share or 1/8th share should not have been answered in favour of plaintiff/the first respondent herein. Adding further, the learned counsel appearing for the appellant contended that admittedly, the properties viz., item Nos.2 & 3 in the second schedule have been transferred in the name of first defendant. Therefore, as per Section 3 of Benami Transaction (Prohibition) Act, “No person shall enter into any benami transaction". This aspect has not been properly considered by both the Courts below. Further, Section 4 of the Benami Transaction (Prohibition) Act,1988 also prohibits right to recover property held benami. Therefore, "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 hall lie by or on behalf of a person claiming to be the real owner of such property". Therefore, "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 hall lie by or on behalf of a person claiming to be the real owner of such property". Without answering this question, both the Courts below have wrongly allowed the suit for partition. Under such circumstances, it was contended that the Judgment and decree passed by both the Courts below are liable to be interfered with. 6. Per contra, the learned counsel appearing for the first respondent/plaintiff submitted that the second appeal has arisen out of a concurrent findings of both the Courts below. When the suit was filed for partition by the first respondent/plaintiff, there has been a specific and categorical finding in respect of the properties in item Nos.2 & 3 of second schedule, that these item Nos.2 & 3 of second schedule were purchased by the plaintiff's father in the name of first defendant only by receiving the sale consideration from and out of sale of 19 cents of land in RS.No.56/3 belonging to plaintiff's father Rangasamy. Therefore, the question of benami transaction does not arise. On this basis, though the trial Court has decreed the suit as prayed for. The first appellate Court by simply modifying the judgment and decree passed by the trial Court, has granted only 1/8th share in favour of the plaintiff and held that the defendants 1 to 3 are jointly or severally liable to pay the 1/8th share in the compensation amount received by them relating to acquisition of properties described in the plaint first schedule and 1/8th share in the 'B' schedule property. Pleaded again that since the second appeal has not arisen any debatable substantial questions of law for consideration, it does not warrant any interference. 7. The stand taken by the appellant/first defendant before both the trial Court as well as the first appellate Court, is that he is the absolute owner of item Nos.2 & 3 of the second schedule property. This evidence was mainly let in on the basis that he happened to be the absolute owner of the above mentioned suit property. For which sale deeds, Ex.B2 dated 21.05.1983 and Ex.B-3 dated 06.10.1983 were produced. This evidence was mainly let in on the basis that he happened to be the absolute owner of the above mentioned suit property. For which sale deeds, Ex.B2 dated 21.05.1983 and Ex.B-3 dated 06.10.1983 were produced. The first appellate court while considering these aspects, has also re-assessed and re-appreciated the evidence adduced by both sides before the trial Court. While doing so, the first appellate Court has held that it is the evidence of P.Ws.1,2,3 and 4 that those two sale deeds emerged at the instance of Rangasamy and only in respect of the property which stood in the name of his eldest son Palanisamy, the appellant/first defendant herein. In support of the finding, the first appellate Court has also relied on the evidence of P.W.2, the mother of the first defendant, who is prima facie competent witness to depose about the fact, had categorically deposed to the effect that at the time of emergence of Exs-B2 and B3 sale deeds, the first defendant/appellant herein was only 16 years old and as such at the time of the so-called purchase of the property, he was only a minor and was admittedly, the first defendant/appellant herein was born on 04.05.1966 and in the year 1983 when the above mentioned properties were purchased, he was only 17 years old. Under this background, the first appellate Court by accepting the findings of the trial Court has held that the plaintiff had right in contending that those properties are self acquired properties of first defendant and only the property of his father Rangasamy. Therefore, when this is the finding given by both the Courts below, this Court is not inclined to re-appreciate or re-asses the entire evidence as the power of this court while sitting under Section 100 of C.P.C. is very limited. Unless it is shown that there is perversity in the finding of the courts below, normally, this court will not interfere with the finding of the courts below. 8. However, the contention in respect of the substantial questions of law raised by the learned counsel appearing for the appellant that the ingredients contemplated by the Benami Transactions (Prohibition) Act,1988 the first and foremost requirements is that the property should have been transferred to one person for consideration paid or provided by another person, has to be answered. 8. However, the contention in respect of the substantial questions of law raised by the learned counsel appearing for the appellant that the ingredients contemplated by the Benami Transactions (Prohibition) Act,1988 the first and foremost requirements is that the property should have been transferred to one person for consideration paid or provided by another person, has to be answered. No doubt, in the present case, the first defendant's father late Rangasamy has purchased the above mentioned properties in item Nos.2 & 3 covered in second schedule. But, the second vital aspect also needs to be seen. To that, the object of such purchase, namely, whether the property was purchased in the name of a person with the intention of evading public revenue and whether there is any dishonesty in not mentioning the names of the real contributors of the fund for purchase of the property is to be looked into. In the present case, the second ingredient has not been established by the first defendant either before the trial Court or the Appellate Court. In fact, there was an issue also framed by the trial Court on this aspect and also by the first appellate Court. However, when there is a substantial questions of law raised, as contended by the learned counsel appearing for the first respondent/plaintiff, the judgment of this Court in the case of P.SRINIVASAN AND ANOTHER Vs. GOPAL AND ANOTHER REPORTED IN 2009-1-L.W.177 can be referred to have the right answers for the substantial questions of law as raised by the appellant herein. In the aforesaid case, this court has held that if it is merely a case of benami, the role of the beneficiary or the motive on the part of the person who had advanced the amount of consideration always plays an important role in the determination of the nature of the transaction. The two important aspects viz., the relationship between the parties and possession of property alone stand in favour of the plaintiffs and in respect of every other individual parameter of proof which must coexist to support the case of benami does not exist in the case. While looking at the relationship between the first defendant and his father late Rangasamy at the time of purchasing of the property, this Court does not find any motive or intention to keep the transaction under Benami transaction as defined under the Act. While looking at the relationship between the first defendant and his father late Rangasamy at the time of purchasing of the property, this Court does not find any motive or intention to keep the transaction under Benami transaction as defined under the Act. Admittedly, while looking at the transaction that has taken place at the time of purchase of the above mentioned second and third item of properties covered under second schedule, the intention of evading public revenue has not been established. 9. The admitted fact shows that Rangasamy Pillai died on 03.07.1985, leaving behind his wife, three sons and four daughters, including the plaintiff. If the properties are self acquired properties of the deceased Rangasamy Pillai, as per the law, his wife, three sons and four daughters, would be his legal heirs, and each would be entitled to 1/8th share, as they are Class-I heirs under the Hindu Succession Act. But, without adding the widow of Rangasamy Pillai-P.W.2, as one of the parties, the suit was filed. Therefore, rightly the learned first appellate Court, after considering the issue whether the properties described in the first schedule of properties are self acquired properties of the deceased Rangasamy Pillai or otherwise, finally came to the conclusion that there is no evidence to show that those properties were ancestral properties in the hands of Rangasamy Pillai. Finally, finding that the widow of Rangasamy Pillai was not added as one of the parties, has rightly come to the conclusion that each one of the family members would be entitled to 1/8th share, as they are Class-I heirs. While considering Ex.A5, which is a certified copy of the sale deed dated 21.05.1983, that is emerged on the same date of emergence of Ex.B2, it was held that Ex.A5 is relating to the sale by the plaintiff's father Rangasamy Pillai in favour of Ramakrishnan relating to 19 cents of land in R.S.No.56/3. The said Ramakrishnan is none other than the vendor under Ex.B2. Therefore, it is clear that Rangasamy Pillai, the father of the plaintiff, sold the portion of his self acquired property in favour of Ramakrishnan, who, in turn, sold the property under Ex.B2. Since the appellant herein was a minor at that time, they have not chosen to describe him as a minor by appointing guardian on behalf of the first defendant-Palanisamy. Since the appellant herein was a minor at that time, they have not chosen to describe him as a minor by appointing guardian on behalf of the first defendant-Palanisamy. Therefore, the contention of the first defendant/appellant herein, that he is the owner of third item of second schedule property, is highly untenable. 10. In view of the above facts, the findings recorded by the first appellate Court that the plaintiff is entitled to 1/8th share only in the suit property and as a result, going to the conclusion by the first appellate Court that the defendants 1 to 3 are jointly and severally liable to pay 1/8th share in the compensation amount received by them relating to acquisition of properties described in the plaint first schedule, and that the plaintiff is entitled to approach the trial Court for getting appointed Advocate Commissioner for division and allotment of her 1/8th share in the 'B' scheduled properties, and also further holding that, during final decree proceedings, the exact 1/8th share of the plaintiff in the Land Acquisition compensation amount shall be fixed and ordered to be recovered from the defendants 1 to 3 by the plaintiff, cannot be found fault with. To make it clear, when the plaintiff has not chosen to press into service, her status as a coparcener and has chosen to plead the entire properties as the self acquired properties of Rangasamy Pillai and as one of the heirs of Rangasamy Pillai, the judgment and decree passed by the first appellate Court holding that it will be only 1/8th share, in view of the fact that the deceased Rangasamy Pillai, died leaving behind his wife and his seven children, does not suffer from any error. Therefore, I am of the view that when there is no benami transaction taken place, the decree and judgment passed by the first appellate Court granting 1/8th share in favour of the plaintiff does not warrant any interference at the hands of this Court. Accordingly, I answer the substantial questions of law against the appellant. 11. In the result, the second appeal is dismissed and the Judgment and decree passed by the both the Courts below is hereby confirmed. Consequently, connected M.P. is closed. There is no order as to costs.