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2017 DIGILAW 2087 (MAD)

Ramakrishnan v. Gurusamy (Died)

2017-07-18

N.SATHISH KUMAR

body2017
JUDGMENT : Aggrieved over the concurrent finding of the lower Courts in dismissing the suit filed for declaration and injunction in respect of the suit property, the above second appeal is filed. 2. The parties are referred as per their ranking before the Trial Court. The brief case of the plaintiff is as follows:- Originally the first plaintiff has filed the suit in O.S.No.41 of 1993 before the learned District Munsif, Aruppukottai and after his demise, his legal representatives were brought on record as Plaintiff Nos. 2 to 7. The suit property along with residential house originally belong to Nagalinga Chettiar. From whom, the first plaintiff's father Ariyanathan Pandaram, purchased the vacant site and thereafter, put up the house therein and they also used the suit property as cow shed. The plaintiffs were in enjoyment of the property for more than 70 years. After the death of the first plaintiff, the plaintiffs Nos. 2 to 7 succeeded the suit property and the defendants, who have no right whatsoever in the suit property, tried to encroach upon the suit property from 03.07.1990 claiming right over the suit property. Hence, the suit for declaration and the consequential injunction. 3. The case of the defendants 1 and 2 is that the suit property was never in possession of the plaintiffs at any point of time and the plaintiffs have suppressed the relationship of the parties in the suit. The defendants never tried to encroach upon the suit property. In fact, the defendants father one Ganapathi Pandaram and the first plaintiff's father Ariyanathan Pandaram were brothers. The defendants father Ganapathi Pandaram was practising in country medicine and used to go foreign countries. In the year 1920 he was in Rangoon and he sent his earnings to his brother Ariyanathan Pandaram. From the above amount, since Ganapathi Pandaram was in Rangoon, the suit property was purchased in the name of Ariyanathan Pandaram. Thereafter, in the year 1921 there was an oral partition between the two brothers, in which the suit property was allotted to the defendants' father. The southern part of the suit property was allotted to Ariyanathan Pandaram. After such oral partition, a common wall was put up between the two shares and the brothers were enjoying their respective share by putting up construction. The defendants were in continuous possession of their father's share after his death. The southern part of the suit property was allotted to Ariyanathan Pandaram. After such oral partition, a common wall was put up between the two shares and the brothers were enjoying their respective share by putting up construction. The defendants were in continuous possession of their father's share after his death. Prior to that on 20.11.1922, 25.06.1934, 26.07.1940 and 30.11.1954, the property allotted to the defendants' father was mortgaged and redeemed. In the above-said mortgage agreements, the allotment of the property to the defendants father is clearly mentioned. Thereafter, in the year 1962 a fire accident occurred, in which houses of the respective 'brothers have burnt and thereafter in the presence of Panchayatdars again a common wall was built up, in respect of which an agreement was also entered into. Suit property are in the possession of the defendants. Taking advantage of the fact that suit property are vacant land and that the defendants were in Madurai doing tailoring business, the plaintiffs encroached upon the suit property and put up a shed on 01.07.1990 and the same was removed. Thereafter a criminal case was also registered and the same was pending between them. Hence, the case of the defendants is that the plaintiffs are not entitled to share. 4. On the side of the plaintiffs PW1 and PW2 were examined and exhibits Ex.A1 to Ex.A27 were marked. On the side of the defendants DW.1 and D.W.2 were examined and Ex.B1 to Ex.B16 were marked. Ex.C1 and Ex.C2 were also marked. Based on the oral and documentary evidence, the Trial Court dismissed the suit. Aggrieved over the same, the plaintiffs filed an appeal in A.S.No.23 of 1996 before the learned Subordinate Judge, Virudhunagar at Srivilliputhur and the same was also dismissed by the First Appellate Court on 04.08.1997. As against the concurrent finding, the present second appeal is filed. 5. At the time of admitting the second appeal, the following substantial question of law is framed:- Whether the Courts below are right in following the judgment reported in 1989 1 Law Weekly 430, when the same had been over-ruled in 1996 (2) MLJ 76 (Supreme Court)? 6. As against the concurrent finding, the present second appeal is filed. 5. At the time of admitting the second appeal, the following substantial question of law is framed:- Whether the Courts below are right in following the judgment reported in 1989 1 Law Weekly 430, when the same had been over-ruled in 1996 (2) MLJ 76 (Supreme Court)? 6. The learned counsel for the appellants would submit that the defendants have taken a plea of benami and there is no pleading in the written statement that the property was purchased in the name of Ariyanathan Pandaram for the benefit of his brother Ganapathi Pandaram. In the absence of any plea, the defendants cannot succeed in put-forthing the plea of benami transaction. The Trial Court has not considered these aspects. Suit itself was filed only in the year 1990. Therefore, the defendants have no defence based on any benami right in respect of any property holding benami is not maintainable. It is the contention of the learned counsel for the appellants that the Trial Court has not appreciated Sections 3 and 4 of the Benami Transactions (Prohibition) Act, 1988 and simply dismissed the suit. 7. It is the contention of the respondents that the plaintiffs have suppressed even the relationship between the parties. PW1 in his evidence, had stated that he was not aware of the defendants, whereas the defendants are none other than the plaintiffs' own cousin. There is suppression of material facts. That apart, there is no bar in law to hold the property as a trustee or other persons standing in a fiduciary capacity. Admittedly, the first plaintiff's father, Ariyanathan Pandaram and the defendants' father Ganapathi Pandaram were brothers. Ganapathi Pandaram was practising country medicine and he was away from India. At the relevant time of purchase of the property in 1920, Ganapathi Pandaram was in Rangoon and he sent amount to his brother Ariyanathan Pandaram, out of that amount, the suit property was purchased in the name of Ariyanathan Pandaram for the benefit of Ganapathi Pandaram also. Further, in the year 1921, there was an oral partition between the two brothers, in which suit property was allotted to Ganapathi Pandaram. Ex.B5 to Ex.B8 clearly proves the oral partition. Further, in the year 1921, there was an oral partition between the two brothers, in which suit property was allotted to Ganapathi Pandaram. Ex.B5 to Ex.B8 clearly proves the oral partition. Ever since the date of oral partition, the property fell in the share of Ganapathi Pandaram and he enjoyed the property and after his death, the defendants were in enjoyment of the property. Therefore, it is the contention of the learned counsel for the respondents that the suit itself is not maintainable. The Trial Court and the First Appellate Court have considered the entire oral and documentary evidence and come to the right conclusion. Hence, he prayed for dismissal of the second appeal. 8. Heard the learned counsel on either side and also carefully perused the materials available on record. 9. Though a substantial question of law is framed at the time of admitting the second appeal, a careful perusal of the judgment of the Trial Court and the First Appellate Court would go to show that the Trial Court has relied upon the judgment of Hon'ble Supreme Court in Mithilesh Kumari v. Prem Behari Khare reported in 1989 (1) L.W. 430. However, the first appellate Court taken note of the larger bench judgment of the Hon'ble Apex Court in R.Rajagopal Reddy (D) by Lrs and others v. Padmini Chandrasekharan (D) by Lrs J.T.(1996) (2) S.C. 667 and also taken note of the fact that the Mithilesh Kumar's case (cited supra) has been overruled and rightly found that the plaintiffs' reliance on Mithilesh Kumari case is not maintainable. On a careful reading of the entire judgment of the First Appellate Court would reveal that the First Appellate Court has not rendered its judgment only based on the Mithilesh Kumari's case, in fact the First Appellate Court has considered the pleadings and evidence of both sides and found that the plaintiffs have not succeeded in getting a decree for declaration and consequential injunction. 10. Be that as it may, the only contention of the appellants before this Court is that the defendants have not entitled to the plea of benami in view of Section 4 of the Benami Transaction (Prohibition) Act, 1988 (hereinafter referred as the Act). 10. Be that as it may, the only contention of the appellants before this Court is that the defendants have not entitled to the plea of benami in view of Section 4 of the Benami Transaction (Prohibition) Act, 1988 (hereinafter referred as the Act). It is the further contention of the learned counsel for the appellants that in the absence of any specific plea that the property was held in the name of Ariyanathan Pandaram as a trustee or other persons standing in a fiduciary capacity and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity, the plea of benami is not maintainable. 11. No doubt there is no specific plea made in the written statement that Ariyanathan Pandaram is a trustee and also standing in a fiduciary capacity. It is to be noted that the plea of the parties need not be in verbatim as found out in the Statute. The case of the parties can be inferred from the nature of the pleadings. The defendants have clearly pleaded in the written statement that, only their father has contributed the full amount to purchase the suit property in the name of his own brother. D.W.1 also in his evidence clearly stated that Ganapathi Pandaram at the relevant time of the purchase of the property in the year 1920 was in Rangoon. That aspect is not even disputed by the plaintiffs in their cross-examination. Though the defendants have to prove that the property was purchased out of the contribution made by their father in the name of Ariyanathan Pandaram, only for the benefit of their father, subsequent development between the parties can be taken into consideration to infer the factum of purchase made in the name of elder brother out of the fund contributed by the younger brother for the benefit of the family. It is to be noted that it is the specific case of the defendants that after the purchase of the suit property in the year 1920, there was an oral partition in the year 1921 between two brother namely Ariyanathan Pandaram and Ganesan Pandaram, in which suit property was allotted to Ganesan Pandaram. It is well settled that oral partition is not alien to Hindu society. It is well settled that oral partition is not alien to Hindu society. In a joint family, even a self acquired property can be treated as a joint family property and it can be blended in the family property. A perusal of Ex.B5 Oothi document dated 20.11.1922 entered between Subbiah Pandaram and Ganapathi Pandaram would go to show that the suit property was allotted to Ganapathi Pandaram. Similarly Ex.B6, mortgage document dated 25.06.1934 executed in favour of one Shenbaga Pandaram, wherein also it shows suit property was allotted to Ganapathi Pandaram. Ex.B7, dated 26.07.1940 executed by Ganapathi Pandaram to Arayanathan Pandaram clearly proves the factum that the properties have been treated as joint family property, thereafter it has been allotted to the share of Ganapathi Pandaram. In Ex.B8, dated 30.11.1954 also Ganapathi Pandaram executed mortgage namely Oothi in favour of one Arumuga Pandaram, wherein also the property shown as absolute property of Ganapathi Pandaram. Exs.B5 to Exs.B8 earlier documents, in fact, clearly prove the oral partition between the two brothers. Therefore even assuming that the benami plea is not maintainable, as pleaded by the plaintiff, throwing self acquired property in to the common hotchpotch of the family property is possible between two brothers of the Hindu joint family. These documents prove the factum that two brothers have treated the suit property as joint family property. 12. It is further to be noted that plaintiffs, in fact suppressed the very relationship of the defendants in the plaint. In fact even in the examination of PW1, he has shown ignorance about the relationship with the defendants. The defendants are none other than their own cousins. All these facts clearly indicate that the plaintiffs' case is not true. On the other hand, Exs.B5 to Exs.B8 clearly show that the suit property infact fell in the share of Ganapathi Pandaram, the father of the defendants. Merely on the basis of the properties stood in the name of Ariyanathan Pandaram, the plaintiffs cannot succeed and establish the title. Subsequent conduct of the properties from the year 1922 and treating the property as their own property and executing several documents of mortgage to 3rd parties clearly prove the oral partition. Therefore, this Court is of the view that the plaintiffs have not succeeded in establishing their title. Subsequent conduct of the properties from the year 1922 and treating the property as their own property and executing several documents of mortgage to 3rd parties clearly prove the oral partition. Therefore, this Court is of the view that the plaintiffs have not succeeded in establishing their title. Merely on the basis of the kist receipt paid for some period for the house property, it cannot be presumed that the plaintiffs have established title over the property. 13. It is further to be noted that Section 4 of the Benami Transactions (Prohibition) Act, 1988 stood before the amendment . Section 4 of the Act reads as follows:- 4. Prohibition of the right to recover property held benami.-(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. (3) Nothing in this Section shall apply,- (a) Where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparcerners in the family; or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stand in such capacity. Sub Section 3 of Section 4 of the Act makes it clear that there is no bar for purchase of the property in the name of persons and also standing as trustee or other person standing in fiduciary capacity. When the two brothers were in joint family and purchased the property in the name of other brother for the benefit of the family is permissible under law, subsequent conduct of the parties in treating the property should be looked into. When the two brothers were in joint family and purchased the property in the name of other brother for the benefit of the family is permissible under law, subsequent conduct of the parties in treating the property should be looked into. In this case the subsequent conduct clearly shows that the property, infact treated as a joint family property and oral partition took place. Therefore, the contention of the learned counsel for the appellants that the defendants have no right to plead benami is also not sustained. At any event, on considering the entire aspect, this Court finds there is no substantial question of law involved in this second appeal. In the result, the second appeal fails and the same is dismissed. No costs.