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2014 DIGILAW 853 (MAD)

S. Balakrishnan v. S. Ayyammal

2014-04-04

P.R.SHIVAKUMAR

body2014
JUDGMENT 1. The unsuccessful plaintiffs in O.S.No.198 of 2003, which was dismissed by the Trial Judge viz., learned Additional District Judge/Fast Track Court I, Coimbatore by his judgment and decree dated 30.9.2003, are the appellants in the appeal. Initially, the defendants 1 to 5 therein have been arrayed as respondents 1 to 5 in the appeal. During the pendency of the appeal, the first respondent Ayyammal died and appellants 1 to 3 and the remaining respondents viz., respondents 2 to 5 have been recorded as her legal representatives. 2. Admittedly, the suit property had been purchased under a sale deed dated 10.2.1946, a certified copy of which has been produced as Ex.A2. The vendor under the said sale deed was none other than Nanjappa Gounder, the father of the decreased first respondent Ayyammal. Ayyammal’s husband was one Subbia Gounder. Their sons are appellants 1 and 2/plaintiffs 1 and 2 and respondents 2 to 4/defendants 2 to 4. The third appellant/third plaintiff and the fifth respondent/fifth defendant are their daughters. The appellants/plaintiffs claim that the purchase made under the original of Ex.A2 sale deed was not made with the funds of the purchaser therein viz., Ayyammal and on the other hand, the sale deed came to be executed by Nanjappa Gounder because Ayyammal’s husband Subbiah Gounder discharged the usufructuary mortgage executed in favour of one Lakshmi Ammal. The certified copy of the said mortgage deed dated 25.1.1944 came to be produced as Ex.A1 before the Trial Court. It was the further contention of the appellants/plaintiffs that, after the purchase of the property in the name of Ayyammal, the ground floor and first floor portions were constructed with the funds provided by Subbiah Gounder and his two daughters viz., the third appellant/third plaintiff and the fifth respondent/fifth defendant. Based on their contention that the property was the property of Subbiah Gounder though it stood in the name of Ayyammal, the appellants/plaintiffs had filed the suit praying for partition. 3. The respondents/defendants resisted the suit contending that the suit property was the self-acquired property of Ayyammal, who purchased it from the income derived by her from the Tiffin shop she was running for several years. 3. The respondents/defendants resisted the suit contending that the suit property was the self-acquired property of Ayyammal, who purchased it from the income derived by her from the Tiffin shop she was running for several years. It was the further contention of the respondents/defendants that constructions were put up with the funds available with Ayyammal derived from her business and also the funds provided by her elder son viz., the second respondent/second defendant in addition to her own funds. 4. The learned Trial Judge framed three issues which are as follows: 1) Whether the suit property is the self-acquired property of the first defendant and as such not liable to be partitioned? 2) Whether the plaintiffs are entitled to 3/8 share as claimed by them in the plaint? 3) To what reliefs the plaintiffs are entitled? 5. In the Trial, only the party witnesses deposed and no independent witness was examined. The first appellant/first plaintiff figured as PW1, the third appellant/third plaintiff figured as PW2, the first respondent/first defendant (deceased Ayyammal) figured as DW1 and the second respondent/second defendant Natarajan figured as DW2. As many as eight documents were produced on the side of the plaintiffs as Exs.A1 to A8, whereas 26 documents were produced and marked as Exs.B1 to B26 on the side of the respondents herein/defendants. 6. At the conclusion of Trial, appreciating the evidence, the learned Trial Judge rendered a finding that the claim of the appellants herein/plaintiffs that Subbiah Gounder, the husband of the first respondent herein/first defendant, discharged the usufructuary mortgage created in favour of Lakshmi Ammal, was not proved by evidence. The learned Trial Judge also held that the contention of the appellants herein/plaintiffs that the suit property was conveyed by the father of the first respondent herein/first defendant in favour of the first respondent herein/first defendant for the amount paid by Subbiah Gounder, was also not substantiated. The further contention of the appellants herein/plaintiffs that constructions were put up with the funds of Subbiah Gounder and his two daughters viz., the third appellant/third plaintiff and fifth respondent/fifth defendant, was also held to be not substantiated by reliable evidence. Accordingly, the learned Trial Judge held that the suit property was the self-acquired property of the first defendant and it was the absolute property of the first defendant in which, neither her sons nor her daughters could claim any partition against her. Accordingly, the learned Trial Judge held that the suit property was the self-acquired property of the first defendant and it was the absolute property of the first defendant in which, neither her sons nor her daughters could claim any partition against her. Based on the said findings, the Trial Court also held that the appellants herein/plaintiffs were not entitled to either the relief of partition or any other relief. Thus, the learned Trial Judge chose to dismiss the suit without cost. As against the said decree of the Trial Court dated 30.9.2003 dismissing the suit, the present appeal has been filed by the appellants herein/plaintiffs on various grounds set out in the Memorandum of grounds of Appeal. 7. The points that arise for consideration in this appeal are: 1) Whether the purchase made under the original of Ex.A2 in the name of the first respondent/first defendant was the purchase made by her husband Subbiah Gounder and hence, he became the owner of the property whereas the first respondent/first defendant Ayyammal was only a name lender? 2) Whether such a plea of purchase by Subbiah Gounder benami in the name of his wife Ayyammal is maintainable in view of the provisions of Benami Transactions Prohibition Act, 1988? 3) Whether the findings of the Trial Court that the suit property was the self-acquired property of the first respondent Ayyammal and that constructions put up therein were made with her own funds and the funds provided by the second respondent/second defendant are erroneous? 4) Whether the appellants/plaintiffs are entitled to the relief of partition as claimed by them? 8. The arguments advanced by Mr. V. Nicholas, learned counsel for the appellants and the arguments advanced by Mr. CH. Pandian, learned counsel for the respondents are heard. The pleadings, judgment and decree of the Trial Court and the other materials available on record are also perused. This court applied its mind to the said materials and the rival contentions made on both sides. 9. V. Nicholas, learned counsel for the appellants and the arguments advanced by Mr. CH. Pandian, learned counsel for the respondents are heard. The pleadings, judgment and decree of the Trial Court and the other materials available on record are also perused. This court applied its mind to the said materials and the rival contentions made on both sides. 9. Points 1 to 3: The learned Trial Judge, on appreciation of evidence and on application of the principles of law, rendered a correct finding to the effect that, except the interested oral testimonies of P.Ws.1 and 2 (party witnesses), there was no other evidence to substantiate their contention that the fund for the purchase of the property was provided by Subbiah Gounder and the fund for the construction of the superstructure flew from Subbiah Gounder and two of his daughters. On proper appreciation of evidence, the learned Trial Judge came to the conclusion that the respondents/defendants were able to prove that the first defendant was having her own business out of which she was having sufficient income and the same was used for the purchase of the property from her own father under the original of Ex.A2 and that the constructions were put up by her using her own funds and the funds provided by her elder son viz., the second respondent/second defendant. This court, on re-appreciation of evidence, comes to the very same conclusion and thereby finds no scope for interfering with the well considered finding of facts by the court below. 10. Apart from the factual finding that the suit property was purchased by the first defendant out of her own funds and the constructions were put up by her with her own funds and the funds provided by her elder son, this court also holds that section 4 of the Benami Transactions Prohibition Act is a bar for the plea made by the appellants/plaintiffs. Of course, section 3 of the Benami Transactions (Prohibition) Act, 1988 contains a clause that a purchase made by a person in the name of his wife or unmarried daughter shall not be a benami transaction and that unless the contrary is proved, it shall be presumed that the said property had been purchased for the benefit of the wife or the unmarried daughter as the case may be. Sub- section 1 of section 3 makes every benami transaction a punishable offence, besides making it subject to acquisition by the competent authority without paying compensation. Only as an exemption from the penal consequence and the consequence of the property being liable to be acquired under section 5, section 3 (2)(a) has been provided. It does not say that though it is a benami transaction, it will not attract the abovesaid penal consequences or the consequences contemplated under-section 5. On the other hand, it implies a presumption that it shall not be a benami transaction if the purchase is made with the funds provided by the husband or the father of the unmarried daughter as the case may be. In other words, such act of making available the funds can be treated to be a gift in favour of wife or unmarried daughter. That is the reason why the Parliament, in its wisdom, has chosen to state that such a purchase made by a person in the name of the wife or daughter shall not be deemed to be a benami transaction and it shall be deemed to have been purchased for the benefit of the wife or the daughter as the case may. In other words, it is implied that the purchaser is none other than the wife or the daughter as the case may be and that the husband or the father providing fund cannot claim to be the real purchaser or owner of the property. But, such a presumption is subject to an exception as sub-clause (a) says that such a presumption shall arise unless the contrary is proved. That means one can prove that the purchase was not made for the benefit of the wife or the unmarried daughter as the case may be. Previously, there was a conflict of opinion regarding the locus standi of the person claiming to be the real owner to rebut the presumption by proving that the purchase was not made for the benefit of the person in whose name the property was purchased. Now, it has become an established proposition that it is not open to the father or the husband (or any one claiming through them) to contend that he purchased the property for his own benefit and not for the benefit of the wife or the daughter as the case may be. Now, it has become an established proposition that it is not open to the father or the husband (or any one claiming through them) to contend that he purchased the property for his own benefit and not for the benefit of the wife or the daughter as the case may be. Section 4 provides an absolute bar on the person claiming to be the real owner from making a claim that he is the real owner and the person in whose name the property stands was only a benami viz., a name-lender. 11. In Section 4 itself, certain exemptions are provided. Such exemptions protect the interest of the members of the Hindu Undivided Family and the person claiming to be a beneficiary for whose benefit the property is held by another person as trustee in a fiduciary capacity. The definition clause excluding the transaction from benami transaction found in section 3(2)(a) cannot be read into section 4 . Then the question may arise who shall be competent to rebut the presumption contemplated under section 3(2) (a) and on such rebuttal what shall be the consequences. The State, which is given the power to punish the benami transaction and the power to acquire the property purchased benami without paying compensation by virtue of sections 3(3) and 5 of the Benami Transactions Prohibition Act, 1988, shall have the competence to rebut the presumption. If a person purchases a property with his own funds in the name of his wife or in the name of his unmarried daughter, the transaction will be protected and the person in whose name the purchase is made, shall stand protected unless it is established that it has not been for the benefit of the wife or the daughter as the case may be and that it is actually a purchase made by the husband or the father as the case may be for his own benefit. Then, he can be punished under section 3(3) and the property can be confiscated (acquired without compensation) under section 5 of the Benami Transactions (Prohibition) Act, 1988. Then, he can be punished under section 3(3) and the property can be confiscated (acquired without compensation) under section 5 of the Benami Transactions (Prohibition) Act, 1988. Simply because section 4 of the said Act attaches a disability on a person claiming to be the real owner from claiming the property or making defence on the said basis against the person in whose name the property has been purchased, the State does not lose its power of punishing the person entering into the benami transaction and acquire the property under section 5 of the said Act. 12. The abovesaid interpretation and elucidation of the provisions of the Benami Transactions (Prohibition) Act, 1988 will make it clear that the contentions of the appellants herein/plaintiffs that the purchase made in the name of Ayyammal the first respondent/first defendant was actually a purchase made by her husband Subbiah Gounder and that though the purchase was made in the name of Ayyammal viz., the first respondent/first defendant, her husband Subbiah Gounder was the real purchaser are barred by section 4 of the Benami Transactions (Prohibition) Act, 1988. In view of the said statutory bar also, the appellants/plaintiffs are bound to fail. 13. Based on the abovesaid findings, this court comes to the conclusion that the decree of the Trial Court dismissing the suit filed by two of the sons of the first defendant and one of the daughters of the first defendant against the first defendant herself arraying the other sons and another daughter as co-defendants, is one granted on proper appreciation of evidence and on application of sound principles of law and that the said decree cannot be interfered with and on the other hand, it deserves to be confirmed. Point Nos. 1 to 3 are answered accordingly. Point No. 4: 14. However, the learned counsel for the appellants has contended further that since the first respondent/first defendant died during the pendency of the appeal, the court should take into account the supervening event viz., death of Ayyammal and decide the question of succession to her property. Of course, if there is no rival contention that she died intestate leaving the property in tact, as canvassed by the learned counsel for the appellant, the same can be worked out in this appeal itself. Of course, if there is no rival contention that she died intestate leaving the property in tact, as canvassed by the learned counsel for the appellant, the same can be worked out in this appeal itself. On the other hand, if the parties claim to have derived title to the property before the death of Ayyammal or that some of them have become successors/legal heirs by virtue of any bequeath made by her, then it shall not be prudent to decide the question in this appeal as allowing the parties to adduce evidence shall be necessary. 15. In this case, the respondents have filed a petition in C.M.P.No.47 of 2014 under Order XLI Rule 27 of the Code of Civil Procedure for reception of additional documentary evidence which came into existence subsequent to the filing of the appeal. The document which is sought to be produced as additional evidence is the certified copy of the settlement deed dated 13.12.2004 alleged to have been executed by Ayyammal in favour of the second respondent/second defendant. The genuineness of the said document has not been admitted. Hence, it requires a detailed trial and it is not feasible to decide the question in this appeal. The cause of action for the suit and the cause of action for seeking partition of the first defendant’s property differ. If the contention of the leaned counsel for the appellant is accepted, it will be accepting the alteration of the cause of action and permitting the plaintiffs to litigate on a different cause of action. The question whether their claim against the first defendant can be sustained is the main issue involved in the appeal. That has been decided against the appellants. There ends the matter and the parties shall be at liberty to rake up their claim regarding succession to the properties of the first respondent/first defendant by a separate suit. When this position was made clear, the learned counsel for the respondent came forward to withdraw C.M.P. No.47 of 2014 and the learned counsel for the appellants came forward to make an endorsement on the appeal memorandum to the effect that the appeal could be disposed of without prejudice to the right of the parties to file a separate suit for establishing their claim of succession to the properties of the first defendant Ayyammal. Recording the endorsement, C.M.P.No.47 of 2014 is dismissed. Recording the endorsement, C.M.P.No.47 of 2014 is dismissed. In view of the same and in view of the foregoing discussions, this court holds that the appellants are not entitled to the relief of partition or any other relief in this appeal. The 4th point for consideration is answered accordingly. 16. For the reasons stated supra, this court comes to the conclusion that there is no merit in the appeal and the same deserves to be dismissed confirming the decree of the Trial Court challenged in this appeal. 17. In the result, A.S.No.689 of 2004 is dismissed. The decree of the Trial Court dated 30.9.2003 made in O.S.No.198 of 2003 on its file is confirmed. C.M.P.No.47 of 2014 and C.M.P.No.10667 of 2004 are also dismissed. There shall be no order as to costs. Appeal dismissed.