Judgment 1. Plaintiff in O.S. No.16423/2001 on the file of XXVIII Additional City Civil Judge, Mayohall Unit, Bangalore has come up in this appeal impugning the judgment and award dated 25.11.2005 dismissing his suit for partition and half share in suit schedule A and B properties. 2. Brief facts leading to this appeal are as under: Plaintiff, defendants 1 to 3 are children of late Mr. Xavier and Smt. Uthira Mary. Plaintiff is the youngest of four children of aforesaid couple. The 1st and 3rd defendants are respectively 1st and 3rd daughters of aforesaid couple, they are married and are living with their families. So far as 2nd defendant is concerned, she is spinster, aged about 79 years. The case of plaintiff is that suit schedule A and B properties are properties of his mother, who died intestate. The parties to the suit being Christian, according to Indian Succession Act, they are legal heirs of their deceased mother Late Uthira Mary and are entitled to equal share in suit schedule properties. Accordingly, he filed the suit contending that that suit schedule properties are the properties standing in the name of his mother for which he has contributed from out of his income, hence, he is entitled to a share in the said properties. 3. In the said proceedings 1st defendant served and entered appearance. She filed memo supporting the case of plaintiff seeking for decree of suit as prayed for and for allotting a share to her similar to that of plaintiff. So far as 2nd and 3rd defendants are concerned, they filed detailed statement of objections, wherein 2nd defendant a spinster/unmarried daughter of Mr. Xavier and Mrs. Uthira Mary stated that suit schedule A and B properties are her self acquired properties, which she acquired and living along with her mother, for the safety, benefit and future security of her mother and herself got the property jointly registered in their name. 4. According to 2nd defendant, plaintiff who is youngest of the children of late Mr. Xavier and Mrs. Uthira Mary was brought up by widow and daughters of late Mr. Xavier, after the death of Mr. Xavier. Though plaintiff an high school dropout, subsequently, he got job in BEL. After he secured job, he got married and set up a separate house along with his wife, where he is staying with his wife and two daughters. Uthira Mary was brought up by widow and daughters of late Mr. Xavier, after the death of Mr. Xavier. Though plaintiff an high school dropout, subsequently, he got job in BEL. After he secured job, he got married and set up a separate house along with his wife, where he is staying with his wife and two daughters. At no point of time, he took care of either his mother or 2nd defendant. As such, he is not entitled to seek any share in suit schedule properties. 5. So far as 3rd defendant is concerned, she joined 2nd defendant in the statement and stated that she contributed some amount of her savings for acquisition of suit schedule properties in the name of 2nd defendant and her mother, Smt. Uthira Mary and so far as other aspects, she supported 2nd defendant. 6. With these rival contentions, court below framed following issues: 1. Whether the plaintiff proves that he acquired schedule A property from his own funds? 2. Whether the plaintiff proves that he along with defendant No.2 purchased the schedule B property? 3. Whether the defendants prove that the schedule A and B properties were acquired by their own funds? Recastedon 30.5.2005: Whether the defendants prove that the schedule A and B properties are purchased by defendant No.2 out of her earnings? 4. Whether the plaintiff is entitled to a share in the suit schedule Property? If so, what is the extent of share? 5. Whether the plaintiff is entitled for mesne profits? 6. What order or decree? 7. Thereafter, court below recorded evidence of the parties. On behalf of plaintiff he examined himself as PW.1 and produced 4 documents and marked them as Exs.P1 to P4. Ex.P1 is the appointment letter to show his employment in BEL. Exs.P2 in P4 are salary slips to show his income to substantiate his claim that he contributed funds to his mother to acquire suit schedule properties. On behalf of defendants, 1st defendant did not enter into witness box, so also 3rd defendant. It is only 2nd defendant adduced evidence as DW.1, in support of her case. She case produced in all 14 documents and marked them as Exs.D1 to D14. On behalf of defendants, 1st defendant did not enter into witness box, so also 3rd defendant. It is only 2nd defendant adduced evidence as DW.1, in support of her case. She case produced in all 14 documents and marked them as Exs.D1 to D14. These documents are essentially agreements, sale deeds, tax paid receipts of ‘A’ and ‘B’ schedule properties and sanctioned plan for construction of building on suit ‘B’ schedule property and other relevant documents to demonstrate the ownership of suit properties also the manner in which they were acquired and developed by her. The court below on appreciation of oral and documentary evidence available on record, proceeded to answer the issues in the following manner. 8. First issue, which was framed with reference to plaintiff’s claim that suit schedule properties are acquired from out of the funds contributed from him, is answered in the negative. Second issue, which was framed to decide whether plaintiff proves that he along with 2nd defendant purchased suit schedule B property, is also answered in the negative. So far as issue No.3, which was framed casting burden on defendants calling upon them to establish whether suit schedule A and B properties were acquired by their own funds, is answered in the affirmative in favour of defendants, particularly, 2nd defendant. So far as 4th issue is concerned, which was framed to decide the right of plaintiff to seek share in suit schedule properties and extent of share, is answered in the negative. Similarly, 5th issue, which was framed to consider plaintiff’s right to seek mesne profits, is also answered in the negative. In other words, court below answered all the framed in favour of plaintiff in negative, consequently, dismissed the suit of plaintiff. 9. Being aggrieved by the same, present first appeal is filed by plaintiff on the ground that there is failure on the part of Court below in appreciating the pleadings, oral and documentary evidence available on record. Also, not appreciating the sale deeds produced by parties, which unclinchingly demonstrate that properties are standing in the name of late Mrs. Uthira Mary is not taken into consideration. It is contended that since Mrs. Uthira Mary in whose name property stood having died intestate, by succession a share would automatically come to plaintiff, which is not considered in appreciation of pleadings and evidence available on record. 10. Uthira Mary is not taken into consideration. It is contended that since Mrs. Uthira Mary in whose name property stood having died intestate, by succession a share would automatically come to plaintiff, which is not considered in appreciation of pleadings and evidence available on record. 10. Further, there is error on the part of Court below in not considering the provisions of Benami Transactions (Prohibition) Act, 1988 (for short the ‘Act’) with reference to defence taken by defendants. The Plea of benami purchase by defendants 2 and 3 being barred by aforesaid Act could not have been taken into consideration by court below. The court below ought to have held that suit schedule properties are the absolute properties of late Mrs. Uthira Mary, mother of plaintiff and defendants and ought to have decided the share of parties in the said proceedings. 11. It is also contended that though there are agreements entered into by 2nd defendant for purchase of said properties, sale deeds executed subsequently which are at Exs.D3 and D4 are contradictory with the contents of Exs.D1 and D2 so far as its value and other things are concerned. In that view of matter, there is error on the part of court below in holding that suit schedule properties are purchased by 2nd defendant in the name of deceased Mrs. Uthira Mary, which is contrary to the aforesaid provisions of Act. It is contended that there is failure on the part of court below in appreciating the oral evidence with reference to documentary evidence available on record. The court below also not drawn adverse inference as against 3rd defendant for not stepping into witness box and trying to substantiate that there is contribution from her for acquisition of suit schedule properties in the name of late Mrs. Uthira Mary. 12. On going through the grounds of appeal with reference to finding of court below in the impugned judgment this Court find that the following points arise for consideration in this appeal: 1. Whether the court below was justified in dismissing the suit of plaintiff for partition? 2. Whether the court below was justified in accepting that 2nd defendant is the owner of suit schedule properties in the light of Section 4 of Benami Transactions (Prohibition) Act 1988? 3. What order? Heard the Counsel for appellant and contesting respondent. Whether the court below was justified in dismissing the suit of plaintiff for partition? 2. Whether the court below was justified in accepting that 2nd defendant is the owner of suit schedule properties in the light of Section 4 of Benami Transactions (Prohibition) Act 1988? 3. What order? Heard the Counsel for appellant and contesting respondent. On re-appreciation of pleadings, oral and documentary evidence available on record with reference to finding of court below and grounds urged in this appeal, this Court answer the aforesaid points in the affirmative in favour of 2nd defendant and against the plaintiff before the court below, who is appellant herein for the following: REASONS 13. In the instant case, relationship between plaintiff and defendants with deceased Xavier and late Uthira Mary is not in dispute. It is also not in dispute that both plaintiff and defendants are children of late Xavier and late Uthira mary. So also, defendants 1 to 3 are elder daughters and plaintiff is youngest son of said couple. It is also not in dispute that 1st and 3rd defendants are married and are living comfortably with their respective spouses. So far as 2nd defendant is concerned, she is spinster. She remained unmarried and lived along with her deceased mother, Uthira Mary till her last days and took care of her. It is also not in dispute that deceased was a housewife and she did not have any independent income of her own, except for meager family pension which she was getting from the ex-employer of her late husband-Xavier. 14. So far as 2nd defendant is concerned, she was working as an employee in BEL, she was residing along with her mother and was taking care of her. The records also disclose that plaintiff who is the only son of late Xavier and Uthira Mary though lived with his mother and sisters until he got married. Immediately after marriage, he went out of the house and started living with his wife and children separately. There was no assistance from him either to contesting 2nd defendant or to his mother-Uthira Mary in maintaining the family or in any other matter. It is also seen that 2nd defendant who was taking care of her mother had entered into agreements with prospective sellers of suit schedule A and B properties for purchase of the same. There was no assistance from him either to contesting 2nd defendant or to his mother-Uthira Mary in maintaining the family or in any other matter. It is also seen that 2nd defendant who was taking care of her mother had entered into agreements with prospective sellers of suit schedule A and B properties for purchase of the same. The said agreements of sale were initially entered in her name vide Exs.D1 and D2. 15. It is seen that subsequently, when sale deeds are executed, one sale deed is executed exclusively in the name of deceased Uthira Mary and second sale deed is executed in the joint name of Smt.Uthira Mary and 2nd defendant, spinster daughter of late Xavier and the Uthirla Mary. The oral and documentary evidence available on record clearly discloses that transaction commenced with Exs.D1 and D2 and concluded with Exs.D3 and D4. The said sale deeds are not transactions which are meant to defraud revenue or to take away the rights of third parties or to act contrary to any of the provisions of fiscal laws or revenue laws of the State. It is a simple arrangement between two ladies, who are related to each other as mother and daughter. The daughter being gainfully employed, having sufficient savings to acquire property in her name, entered into agreements to purchase these two properties under Exs.D1 and D2. Subsequently, as could be seen from pleadings in written statement to provide some sort of security, 2nd defendant acquired properties; one in the exclusive name of her mother and another in joint name of herself and her mother vide sale deeds at Exs.D3 and D4. 16. The aforesaid transaction by any stretch of imagination could not be termed as Benami transaction in the background of the object and scope of the Act with which it has come into force to prevent the people trying to invest the ill-gotten money in the name of third parties to prevent the accounting of the same as rightly held by this Court in the matter of M. Printer vs. Marcel Martins, reported in AIR 2002 KAR 191 , wherein it is observed as under:- “28. It is in this background we have to examine each transaction. It is in this background we have to examine each transaction. In view of the fact that benami transaction has been now defined under the Act if any transaction is held to be hit by the provisions of the said Act, the said transaction should satisfy the requirements of benami transaction as defined under the Act. The first and the foremost requirement is that a property should have been transferred in the name of a person for consideration paid or provided by another person. In other words, the consideration for the transaction should not have flown from the person in whose name the property is purchased. If the person in whose name the property is purchased also has contributed consideration for purchase of the property in his name along with others whose name is not reflected in the sale deed, it would not amount to a benami transaction as defined under the Act. 29. Secondly the object of such purchase, namely whether the property is 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. If the intention to purchase the property is to avoid payment of any tax or to conceal any unaccounted income, then before applying the provisions of the Act, a careful consideration of the nature of the transaction has to be looked into.” 17. In the light of aforesaid decision, it can be conveniently said that transactions referred to at Exs.D3 and D4 could not be considered as benami transaction as contended by plaintiff. In other words, the filing of suit by plaintiff itself is hit by the provisions of Section 4(1) of the Benami Transactions (Prohibition) Act, 1988. It reads as under: “4. In the light of aforesaid decision, it can be conveniently said that transactions referred to at Exs.D3 and D4 could not be considered as benami transaction as contended by plaintiff. In other words, the filing of suit by plaintiff itself is hit by the provisions of Section 4(1) of the Benami Transactions (Prohibition) Act, 1988. It reads as under: “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.” In the light of provisions of sub-section (1) of Section 4 of the Act, it clearly precludes the plaintiff to initiate a suit contending that suit schedule properties are the properties purchased in the name of his mother from out of the contributions made by him. Even otherwise, such a plea is not permissible in the light of the aforesaid provisions of Benami Transactions Act, 1988 and the oral and documentary evidence available on record does not substantiate the claim of plaintiff. In that view of matter, Court below has rightly held that suit of plaintiff is not maintainable. 18. Infact in this proceedings, plaintiff before the court below who is appellant herein tried to rely upon two judgments of Apex in the matter of Rebti Devi vs. Ram Dutt, reported in AIR 1998 SC 310 and in the matter of R.Rajagopal Reddy vs. P. Chandrasekharan, reported in AIR 1996 SC 238 , which clearly substantiate that filing of suit by plaintiff itself is not permissible in the light of Section 4(1) of the Act. In that view of matter, this Court find there is absolutely no justifiable reason to hold that finding of court below in dismissing the suit filed by plaintiff is incorrect either on facts or in law. Infact, this Court feel that the well reasoned finding of court below on issue Nos.1, 2, 4 and 5 clearly demonstrate that plaintiff is not entitled to any relief in the suit filed by him in the court below and also in this appeal. Accordingly, the appeal filed by appellant is dismissed without any order as to costs.