IN THE SUPREME COURT OF INDIA
\nCIVIL APPELLATE JURISDICTION
\nCIVIL APPEAL NO. 4805 OF 2019
\n(ARISING OUT OF SLP (C) NO.29642 OF 2016)<\/p>\n
Mangathai Ammal (Died) through
\nLRs and Others ..Appellant(s)
\nVersus
\nRajeswari & Others ..Respondent(s)<\/p>\n
J U D G M E N T<\/p>\n
M.R. SHAH, J.
\n1. Leave granted.
\n2. Feeling aggrieved and dissatisfied with the impugned
\nJudgment and Order passed by the High Court of Judicature at
\nMadras dated 05.01.2016 passed in AS No.785 of 1992
\ndismissing the same and affirming the Judgment and Decree
\ndated 05.08.1992 passed by the learned Subordinate Judge, Arni
\n1
\nin O.S. No.124 of 1990 decreeing the suit for partition by original
\nplaintiff, the original defendant nos. 1 to 3 have preferred the
\npresent appeal.
\n3. The facts leading to the present appeal in nutshell are
\nas under :
\nThat, one Rajeswari and Othersoriginal
\nplaintiffs
\ninstituted a suit bearing O.S. No.124 of 1990 for partition of the
\nsuit properties and separate possession. It was the case on behalf
\nof the plaintiffs that the first defendant is the wife of one
\nNarayanasamy Mudaliar. That, the said Narayanasamy Mudaliar
\nand original defendant no.1 had one son and three daughters
\nnamely Elumalai (son), Ranganayaki (daughter), Nagabushanam
\n(daughter) and Navaneetham (daughter). That, the son Elumalai
\nand daughter Ranganayaki had died. The first plaintiff is the wife
\nof Elumalai, the second plaintiff and plaintiff nos. 3 to 8 are the
\nhusband and children of the deceased Ranganayaki. That,
\nElumalai and the first plaintiff did not have issue. According to
\nthe original plaintiffs, Narayanasamy Mudaliar sold the ancestral
\nproperties and purchased the suit property in the name of first
\ndefendant Mangathai
\nAmmal (wife of Narayanasamy Mudaliar).
\n2
\nTherefore, it was the case on behalf of the plaintiffs that
\nNarayanasamy Mudaliar and his son Elumalai are entitled to half
\nshare of the ancestral properties. That, it was the case on behalf
\nof the plaintiffs that the same Narayanasamy Mudaliar had died
\ntwenty years back to the filing of the suit. His share in the
\nproperties was inherited by Elumalai, defendant nos. 1 and 2 viz
\nNagabushanam Ammal and Ranganayaki Ammal. That, the
\nRanganayaki died about six years before filing of suit, therefore,
\nher legal representatives viz original plaintiff nos.2 to 8 inherited
\nher share in the properties. That, the Nagabushanam executed
\nthe Release Deed dated 24.04.1990 in favour of the first
\ndefendant. According to the plaintiffs, the first plaintiff is entitled
\nto 5\/8th share, plaintiff nos. 2 to 8 are entitled to 1\/8th share
\nand the defendants are entitled to 1\/4th share in the suit
\nproperties. According to the plaintiffs, since the defendant tried
\nto claim the suit properties, the plaintiffs filed the present suit for
\npartition.
\n3.1 The suit was resisted by the defendants. As per the
\ncase of the first defendant, except item nos. 1 and 3 of the suit
\nproperties, the other properties are selfacquired
\nproperties of the
\n3
\nfirst defendant. According to the first defendant, the first item of
\nthe suit property was purchased out of the money provided by
\nher in her name. According to the first defendant, the suit
\nproperties are not the ancestral properties of Narayanasamy
\nMudaliar. It was denied that the suit properties were purchased
\nby selling the ancestral properties. It was the case on behalf of
\nthe defendant no.1 that except properties in item nos. 1 and 3 of
\nSchedule II, the properties were purchased by the defendant no.1
\nout of the stridhana she received from her parents\u2019 house and by
\nselling the gold jewellery. It was also the case on behalf of
\ndefendant no.1 that after purchasing the property from
\nThangavel Gounder and others; she constructed a house and is
\nin possession and enjoyment of the said property. According to
\nthe defendant no.1, the deceased Narayanasamy Mudaliar was
\nentitled to 47 cents in Survey No. 218\/1 and 8 cents in Survey
\nNo. 218\/3 and the deceased Ranganayaki Ammal is entitled to
\n1\/5th share in the suit properties. It was also the case on behalf
\nof the first defendant that, similarly, the first plaintiff\u2019s husband
\nis also entitled to 1\/5th share, in which, first defendant and first
\nplaintiff are entitled to half share in the suit properties. According
\nto the first defendant, the first defendant\u2019s daughter
\n4
\nNagabhushanam executed a Release Deed in respect of her own
\nshare. It was also the case on behalf of the first defendant that
\nshe never acted as a manager of the joint family. According to
\nher, she executed a Will dated 11.02.1987 in favour of plaintiff
\nnos. 1 and 2 and Nagabhushanam Ammal. However, since the
\nbeneficiaries of the Will did not take care of the first defendant,
\nshe revoked the Will on 11.06.1990.
\n3.2 Defendant nos. 2 and 3 supported defendant no.1.
\nAccording to defendant nos. 2 and 3, defendant no.1 mortgaged
\nthe property with defendant no. 3 for a valuable consideration,
\nwhich was also known to the plaintiffs. Defendant nos. 2 and 3
\nalso adopted the written statement filed by defendant no.1.
\n3.3 That the learned Trial Court framed the following
\nissues:
\n\u201c1) Whether the suit schedule properties are
\nancestral properties of husband of the 1st plaintiff
\nnamely Elumalai and the deceased
\nNarayansamy?
\n2) Whether it is true that the 1st defendant had
\nmanaged the suit schedule properties being the
\nManager of the Family?
\n3) Whether it is true that the Suit Schedule
\nproperties are jointly enjoyed by all the family
\nmembers as Joint Family Property?
\n5
\n4) Whether the plaintiffs are entitled to claim
\npartition in view of the Release Deed dated
\n24.04.90 executed by Nagabooshanam Ammal?
\n5) Whether it is true that the 1st defendant had
\nexecuted a Will on 11.2.87 to and in favour of
\nplaintiffs in respect of suit schedule property and
\nrevoked the said Will on 11.6.90?
\n6) Whether it is true that the plaintiffs are in
\njoint possession of the suit schedule properties?
\n7) Whether the plaintiffs are entitled to get 3\/4th
\nshare over the suit schedule properties?
\n8) Whether the present suit is not valued
\nproperly?
\n9) To what relief the plaintiffs are entitled?
\n3.4 Before the Trial Court, on the side of the plaintiffs,
\nfour witnesses were examined and three documents Exh. A1 to
\nA3 were marked. On the side of the defendants, two witnesses
\nwere examined and 19 documents Exh. B1 to B19 were marked.
\nThat, the learned Trial Court, after taking into consideration the
\noral and documentary evidences of both the sides, passed a
\npreliminary decree finding that the plaintiffs are entitled to 3\/4th
\nshare in the suit properties. Feeling aggrieved and dissatisfied
\nwith the Judgment and Decree passed by the Trial Court, the
\noriginal defendant nos. 1 to 3 preferred appeal before the High
\nCourt. That, by impugned Judgment and Order, the High Court
\nhas dismissed the said appeal and has confirmed the Judgment
\n6
\nand Decree passed by the Trial Court. Feeling aggrieved and
\ndissatisfied with the impugned Judgment and Order passed by
\nthe High Court dismissing the appeal and confirming the
\nJudgment and Decree passed by the learned Trial Court, original
\ndefendant nos.1 to 3 have preferred the present appeal.
\n4. Shri V. Prabhakar, learned Counsel has appeared on
\nbehalf of the appellantsoriginal
\ndefendants and Shri G. Balaji,
\nlearned Counsel has appeared on behalf of the respondentsoriginal
\nplaintiffs.
\n5. Shri V. Prabhakar, learned Counsel appearing on
\nbehalf of the original defendant nos.1 to 3 has vehemently
\nsubmitted that in the facts and circumstances of the case, both,
\nthe learned Trial Court as well as the High Court have committed
\na grave error in decreeing the suit and holding that the original
\nplaintiffs have 3\/4th share in the suit properties.
\n5.1 It is further submitted by Shri V. Prabhakar, learned
\nCounsel appearing on behalf of the appellantsoriginal
\ndefendant
\nnos.1 to 3 that the suit properties were purchased by defendant
\nno.1 out of the stridhana she received from her parents and by
\nselling the gold jewellery. It is submitted that, admittedly, the suit
\n7
\nproperties were purchased in the name of original defendant no.1
\nand was in possession of defendant no.1. It is submitted
\ntherefore, the finding that the properties were purchased by
\nNarayanasamy Mudaliar is erroneous.
\n5.2 It is further submitted by Shri V. Prabhakar, learned
\nCounsel appearing on behalf of the appellantsoriginal
\ndefendant
\nnos.1 to 3 that if it was the case on behalf of the original
\nplaintiffs that the properties purchased in the name of defendant
\nno.1 were the benami transactions, in that case, the onus is\/was
\nupon the plaintiffs to prove by leading cogent evidence that the
\ntransactions were benami transactions. It is submitted that in
\nthe present case, the plaintiffs have failed to discharge the onus
\nto prove that the transactions were benami transactions. It is
\nsubmitted that, both, the Trial Court as well as the High Court
\nhad erroneously shifted the burden upon the defendants to prove
\nthat the transactions\/Sale Deeds in favour of defendant no.1
\nwere not benami transactions. It is submitted that the aforesaid
\nis contrary to the settled proposition of law laid down by this
\nCourt.
\n8
\n5.3 It is further submitted by Shri V. Prabhakar, learned
\nCounsel appearing on behalf of the appellantsoriginal
\ndefendant
\nnos.1 to 3 that in the present case, solely on considering two
\ndocuments, namely, Exh. B3, Sale Deed in respect of one of the
\nproperties and Exh. B4, the Sale Deed with respect of two
\nproperties, the Courts below have considered the entire suit
\nproperties as ancestral properties and\/or the same properties
\npurchased from the funds raised by selling the ancestral
\nproperties.
\n5.4 It is further submitted by Shri V. Prabhakar, learned
\nCounsel appearing on behalf of the appellantsoriginal
\ndefendant
\nnos.1 to 3 that merely because some consideration or part
\nconsideration was paid by the husband at the time of purchase of
\nproperty at Exh. B3Sale
\nDeed and\/or merely purchasing the
\nstamp papers while purchasing the property at Exh. B4Sale
\nDeed, it cannot be said that the same properties as such were
\npurchased from the funds raised by selling the ancestral
\nproperties and\/or the same were purchased for and on behalf of
\njoint family.
\n9
\n5.5 It is further submitted by Shri V. Prabhakar, learned
\nCounsel appearing on behalf of the appellantsoriginal
\ndefendant
\nnos.1 to 3 that both the Courts below have materially erred in
\nmisinterpreting the Release Deed at Exh. A1. It is submitted that
\nboth the Courts below have materially erred in holding the suit
\nproperties as joint family properties of Narayanasamy Mudaliar
\non the ground that execution of Release Deed at Exh. A1 by
\nNagabhushanam on payment of Rs.10,000\/to
\nNagabhushanam
\nand on such payment Nagabhushanam released her share in the
\nproperty, was good to hold that the properties are the joint family
\nproperties of Narayanasamy Mudaliar.
\n5.6 It is further submitted by Shri V. Prabhakar, learned
\nCounsel appearing on behalf of the appellantsoriginal
\ndefendant
\nnos.1 to 3 that even considering the documentary evidences on
\nrecord, more particularly, Exh. B3 to B7, it can be seen that the
\nsuit properties were purchased in the name of defendant no.1
\nwere purchased much prior to the sale of some of the ancestral
\nproperties of Narayanasamy Mudaliar. It is submitted that,
\ntherefore, the case on behalf of the plaintiffs that the suit
\nproperties were purchased in the name of defendant no.1 out of
\n10
\nthe funds raised on selling the ancestral properties of
\nNarayanasamy Mudaliar, cannot be accepted. Relying upon
\nparagraph 10 of the decision of this Court in the case of Om
\nPrakash Sharma v. Rajendra Prasad Shewda, (2015) 15 SCC 556,
\nit is submitted by Shri V. Prabhakar, learned Counsel appearing
\non behalf of the appellants that as the transactions\/Sale Deeds
\nin favour of defendant no.1 were prior to the enactment of the
\nHindu Succession Act and the amendments made thereto from
\ntime to time, even it can be said that the intention of the
\nNarayanasamy Mudaliar to purchase the properties in the name
\nof defendant no.1his
\nwife was in order to provide the wife with a
\nsecured life in the event of his death.
\n5.7 Shri V. Prabhakar, learned Counsel appearing on
\nbehalf of the appellantsoriginal
\ndefendant nos.1 to 3 submitted
\nthat even otherwise, the plaintiffs have failed to prove by leading
\ncogent evidence that the transactions of sale in favour of
\ndefendant no.1 were benami transactions. It is submitted by Shri
\nV. Prabhakar that even in the plaint also there were no specific
\npleadings that the sale transactions of the suit properties in
\nfavour of defendant no.1 were benami transactions. It is
\n11
\nsubmitted that even the learned Trial Court also did not frame
\nany specific issue with respect to benami transactions. It is
\nsubmitted that even otherwise on merits also and on considering
\nthe recent decision of this Court in the case of P. Leelavathi v. V.
\nShankarnarayana Rao (2019) 6 SCALE 112, in which after
\nconsidering the earlier decisions of this Court in the case of
\nJaydayal Poddar v. Bibi Hazra (Mst.) (1974) 1 SCC 3; Thakur
\nBhim Singh v. Thakur Kan Singh (1980) 3 SCC 72; Binapani Paul
\nv. Pratima Ghosh (2007) 6 SCC 100 and Valliammal v.
\nSubramaniam (2004) 7 SCC 233, it cannot be said that the Sale
\nDeeds executed in favour of defendant no.1 were benami
\ntransactions.
\n5.8 Making above submissions and relying upon above
\ndecisions it is prayed to allow the present appeal.
\n6. Present appeal is vehemently opposed by Shri G.
\nBalaji, learned Counsel appearing on behalf of the respondentsoriginal
\nplaintiffs.
\n6.1 Shri G. Balaji, learned Counsel appearing on behalf of
\nthe respondentsoriginal
\nplaintiffs has vehemently submitted that
\non appreciation of entire evidence on record, both, learned Trial
\n12
\nCourt as well as the High Court, have rightly held that the
\ntransactions of sale in favour of defendant no.1 were benami
\ntransactions as the said properties were purchased by
\nNarayanasamy Mudaliar in the name of defendant no.1 out of the
\nfunds received from selling the ancestral properties. It is
\nsubmitted that on considering the documentary evidences Exh.
\nB3, B4 and even Exh. A1, the High Court has rightly observed
\nand held that the transactions\/Sale Deeds in favour of defendant
\nno.1 were benami transactions and therefore the plaintiffs are
\nentitled to 3\/4th share in the suit properties which were
\npurchased in the name of defendant no.1 but purchased out of
\nthe funds received from selling the ancestral properties by
\nNarayanasamy Mudaliar.
\n6.2 It is further submitted by Shri G. Balaji, learned
\nCounsel appearing on behalf of the respondentsoriginal
\nplaintiffs
\nthat in the present case, all the conditions to prove the
\ntransactions as benami transactions as laid down by this Court
\nin the case of P. Leelavathi (Supra) have been satisfied.
\n6.3 It is vehemently submitted by Shri G. Balaji, learned
\nCounsel appearing on behalf of the respondentsoriginal
\nplaintiffs
\n13
\nthat in the present case, even from the intention and conduct of
\nthe parties it is proved that though the properties were in the
\nname of defendant no.1, they were purchased and enjoyed as
\nJoint Family Properties. It is submitted that otherwise the
\nNagabhushanam would not have released her share in favour of
\ndefendant no.1, if the daughter Nagabhushanam had no share. It
\nis submitted that execution of the Release Deed by
\nNagabhushanam in favour of defendant no.1 suggests that
\ndefendant no.1 also considered the share of the daughter
\nNagabhushanam by treating the suit properties as Joint Family
\nProperties.
\n6.4 It is further submitted by Shri G. Balaji, learned
\nCounsel appearing on behalf of the respondentsoriginal
\nplaintiffs
\nthat the Will dated 11.02.1987, executed by defendant no.1, also
\nincluded even the properties exclusively belonging to
\nNarayanasamy Mudaliar. It is submitted, therefore, the intention
\ncan be gathered from Exh. B8 and Exh. B9 that the suit
\nproperties are Joint Family Properties and therefore liable for
\npartition and not exclusive properties of defendant no.1.
\n14
\n6.5 It is further submitted by Shri G. Balaji, learned
\nCounsel appearing on behalf of the respondentsoriginal
\nplaintiffs
\nthat the suit properties were purchased in the name of defendant
\nno.1 during the lifetime of Narayanasamy Mudaliar. It is
\nsubmitted that original defendant no.1 had no independent
\nincome. It is submitted that Narayanasamy Mudaliar had
\nancestral properties\/agricultural lands which were generating
\nincome and he purchased all the properties in the name of his
\nwifedefendant
\nno.1 from the income generated from the
\nancestral properties and by selling some of the ancestral
\nproperties.
\n6.6 It is further submitted by Shri G. Balaji, learned
\nCounsel appearing on behalf of the respondentsoriginal
\nplaintiffs
\nthat even the statutory presumption which was rebuttable under
\nSection 3 (2) of the Benami Transaction Act, 1988 has been
\nomitted by Benami Amendment Act of 2016. It is submitted that
\ntherefore as on date, there is no such statutory presumption that
\nthe purchase made in the name of wife or children is for their
\nbenefit.
\n15
\n6.7 Making above submissions and relying upon above
\ndecisions it is prayed to dismiss the present appeal.
\n7. Heard the learned Counsel appearing on behalf of the
\nrespective parties at length. We have gone through and
\nconsidered in detail the findings recorded by the learned Trial
\nCourt as well as the High Court. We have also considered in
\ndetail the evidences on record both oral as well as documentary.
\n7.1 At the outset, it is required to be noted that the
\noriginal plaintiffs instituted the suit before the learned Trial
\nCourt for partition of the suit properties and claiming 3\/4th share
\nwith the pleadings that the suit properties were ancestral
\nproperties and that the Narayanasamy Mudaliar has purchased
\nthe suit properties in the name of his wifedefendant
\nno.1 out of
\nthe funds derived through selling his share of the property
\nacquired through ancestral nucleus to some other person and
\nthat the suit properties were in absolute possession and
\nenjoyment of the Joint Family Property since the date of
\npurchase. From the pleadings, it appears that it was not
\nspecifically pleaded by the plaintiffs that the Sale
\nDeeds\/transactions in favour of defendant no.1 were benami
\n16
\ntransactions. It was also not pleaded that the suit properties were
\npurchased in the name of defendant no.1 by Narayanasamy
\nMudaliar from the income derived out of the ancestral properties.
\nEven the learned Trial Court did not specifically frame the issue
\nthat whether the transactions\/Sale Deeds in favour of defendant
\nno.1 are benami transactions or not? Despite the above, learned
\nTrial Court and the High Court have held that the
\ntransactions\/Sale Deeds in favour of defendant no.1 were benami
\ntransactions. The aforesaid findings recorded by the Trial Court
\nconfirmed by the High Court and the consequent relief of
\npartition granted in favour of the plaintiffs is the subject matter
\nof the present appeal.
\n8. While considering the issue involved in the present
\nappeal viz. whether the transactions\/Sale Deeds in favour of
\ndefendant no.1 can be said to be benami transactions or not, the
\nlaw on the benami transactions is required to be considered and
\nfew decisions of this Court on the aforesaid are required to be
\nreferred to.
\n8.1 In the case of Jaydayal Poddar (Supra) it is specifically
\nobserved and held by this Court that the burden of proving that a
\n17
\nparticular sale is benami and the apparent purchaser is not the
\nreal owner, always rests on the person asserting it to be sold. It is
\nfurther observed that this burden has to be strictly discharged by
\nadducing legal evidence of a definite character which would either
\ndirectly prove the fact of the benami transaction or establish
\ncircumstances unerringly and reasonably raising an interference
\nof that fact. In paragraph 6 of the aforesaid decision, this Court
\nhas observed and held as under :
\n\u201c6. \u201cIt is wellsettled
\nthat the burden of proving
\nthat a particular sale is benami and the apparent
\npurchaser is not the real owner, always rests on
\nthe person asserting it to be so. This burden has
\nto be strictly discharged by adducing legal
\nevidence of a definite character which would
\neither directly prove the fact of benami or
\nestablish circumstances unerringly and
\nreasonably raising an inference of that fact. The
\nessence of a benami is the intention of the party
\nor parties concerned; and not unoften, such
\nintention is shrouded in a thick veil which
\ncannot be easily pierced through. But such
\ndifficulties do not relieve the person asserting the
\ntransaction to be benami of any part of the
\nserious onus that rests on him; nor justify the
\nacceptance of mere conjectures or surmises, as a
\nsubstitute for proof. The reason is that a deed is
\na solemn document prepared and executed after
\nconsiderable deliberation, and the person
\nexpressly shown as the purchaser or transferee
\nin the deed, starts with the initial presumption in
\nhis favour that the apparent state of affairs is the
\nreal state of affairs. Though the question whether
\n18
\na particular sale is benami or not, is largely one
\nof fact, and for determining this question, no
\nabsolute formulae or acid tests, uniformly
\napplicable in all situations, can be laid down; yet
\nin weighing the probabilities and for gathering
\nthe relevant indicia, the courts are usually
\nguided by these circumstances:(1) the source
\nfrom which the purchase money came; (2) the
\nnature and possession of the property, after the
\npurchase; (3) motive, if any, for giving the
\ntransaction a benami colour; (4) the position of
\nthe parties and the relationship if any, between
\nthe claimant and the alleged benamidar; (5) the
\ncustody of the title deeds after the sale and (6)
\nthe conduct of the parties concerned in dealing
\nwith the property after the sale.
\nIn the case of Thakur Bhim Singh (Supra) this Court in
\nparagraph 18 observed and held as under :
\n\u201c18. The principle governing the determination of
\nthe question whether a transfer is a benami
\ntransaction or not may be summed up thus: (1)
\nthe burden of showing that a transfer is a
\nbenami transaction lies on the person who
\nasserts that it is such a transaction; (2) it is
\nproved that the purchase money came from a
\nperson other than the person in whose favour the
\nproperty is transferred, the purchase is prima
\nfacie assumed to be for the benefit of the person
\nwho supplied the purchase money, unless there
\nis evidence to the contrary; (3) the true character
\nof the transaction is governed by the intention of
\nthe person who has contributed the purchase
\nmoney and (4) the question as to what his
\nintention was has to be decided on the basis of
\nthe surrounding circumstances, the relationship
\nof the parties, the motives governing their action
\n19
\nin bringing about the transaction and their
\nsubsequent conduct, etc.\u201d
\n8.2 In the case of P. Leelavathi (Supra) this Court held as
\nunder :
\n\u201c9.2 In Binapani Paul case (Supra), this Court
\nagain had an occasion to consider the nature of
\nbenami transactions. After considering a catena
\nof decisions of this Court on the point, this Court
\nin that judgment observed and held that the
\nsource of money had never been the sole
\nconsideration. It is merely one of the relevant
\nconsiderations but not determinative in
\ncharacter. This Court ultimately concluded after
\nconsidering its earlier judgment in the case of
\nValliammal v. Subramaniam (2004) 7 SCC 233
\nthat while considering whether a particular
\ntransaction is benami in nature, the following six
\ncircumstances can be taken as a guide:
\n\u201c(1) the source from which the purchase money
\ncame;
\n(2) the nature and possession of the property,
\nafter the purchase;
\n(3) motive, if any, for giving the transaction a
\nbenami colour;
\n(4) the position of the parties and the
\nrelationship, if any, between the claimant and
\nthe alleged benamidar;
\n(5) the custody of the title deeds after the sale;
\nand
\n20
\n(6) the conduct of the parties concerned in
\ndealing with the property after the sale.
\n(Jaydayal Poddar v. Bibi Hazra (supra), SCC p. 7,
\npara6)\u201d
\n8.3 After considering the aforesaid decision in the recent
\ndecision of this Court in the case of P. Leelavathi (Supra), this
\nCourt has again reiterated that to hold that a particular
\ntransaction is benami in nature the aforesaid six circumstances
\ncan be taken as a guide.
\n8.4 Applying law laid down by this Court in the aforesaid
\ndecisions to the facts of the case on hand and the reasoning
\ngiven by the Trial Court confirmed by the High Court, it appears
\nthat both, the learned Trial Court and the High Court have erred
\nin shifting the burden on the defendants to prove that the sale
\ntransactions were not benami transactions. As held hereinabove
\nin fact when the plaintiffs\u2019 claim, though not specifically pleaded
\nin the plaint, that the Sale Deeds in respect of suit properties,
\nwhich are in the name of defendant no.1, were benami
\ntransactions, the plaintiffs have failed to prove, by adducing
\ncogent evidence, the intention of the Narayanasamy Mudaliar to
\n21
\npurchase the suit properties in the name of defendant no.1 \u2013 his
\nwife.
\n9. Even the reasoning and the findings recorded by the
\nTrial Court confirmed by the High Court while holding the Sale
\nDeeds\/transactions in favour of defendant no.1 as benami
\ncannot be said to be germane and or fulfilling the circumstances
\nas carved out by this Court in the aforesaid decisions.
\n9.1 The first reason which is given by the learned Trial
\nCourt while holding the suit properties as benami transactions is
\nthat part sale consideration was paid by Narayanasamy Mudaliar
\nat the time of the purchase of the property vide Sale Deed Exh.
\nB3. As held by this Court in catena of decisions referred to
\nhereinabove, the payment of part sale consideration cannot be
\nthe sole criteria to hold the sale\/transaction as benami. While
\nconsidering a particular transaction as benami, the intention of
\nthe person who contributed the purchase money is determinative
\nof the nature of transaction. The intention of the person, who
\ncontributed the purchase money, has to be decided on the basis
\nof the surrounding circumstances; the relationship of the parties;
\nthe motives governing their action in bringing about the
\n22
\ntransaction and their subsequent conduct etc. It is required to be
\nnoted that Narayanasamy Mudaliar, who contributed part sale
\nconsideration by purchasing property at Exh. B3, might have
\ncontributed being the husband and therefore by mere
\ncontributing the part sale consideration, it cannot be inferred
\nthat Sale Deed in favour of the defendant no.1wife
\nwas benami
\ntransaction and for and at behalf of the joint family. Therefore,
\nthe Trial Court as well as the High Court have committed a grave
\nerror in holding the suit properties as benami
\ntransactions\/ancestral properties on the basis of the document
\nat Exh. B3.
\n9.2 Similarly, merely because of the stamp duty at the
\ntime of the execution of the Sale Deed at Exh. B4 was purchased
\nby Narayanasamy Mudaliar, by that itself it cannot be said that
\nthe Sale Deed at Exh. B4 in favour of defendant no.1 was benami
\ntransaction. It is required to be noted that except the aforesaid
\ntwo documentary evidences at Exh. B3 and B4, no other
\ndocumentary evidence\/transaction\/Sale Deed in favour of
\ndefendant no.1 have been considered by the learned Trial Court
\nand even by the High Court.
\n23
\n9.3 Now, so far as the findings recorded by the Trial Court
\nand the High Court on considering the Release Deed at Exh. A1
\nviz. the Release Deed executed by Nagabushanam in favour of
\ndefendant no. 1 on payment of Rs.10,000\/and
\ntherefore
\ninference drawn by the learned Trial Court and the High Court
\nthat therefore even the defendant no.1 also considered the share
\nof the daughter and considered the suit properties as joint family
\nproperties and therefore plaintiffs have also share in the suit
\nproperties is concerned, the said finding is just a misreading
\nand
\nmisinterpretation
\nof the evidence on record. In her deposition,
\ndefendant no.1 has explained the payment of Rs.10,000\/to
\nNagabushanam, daughter and the Release Deed executed by her.
\nIt is specifically stated by her that though she had no share in
\nthe suit properties, with a view to avoid any further litigation in
\nfuture and to be on safer side, Rs.10,000\/is
\npaid and the
\nRelease Deed was got executed by Nagabushanam in favour of
\ndefendant no.1. Even in the Release Deed at Exh. A1, it is so
\nspecifically stated. Therefore, merely because to avoid any further
\nlitigation in future and though Nagabushanam had no share in
\nthe suit properties, Rs.10,000\/was
\npaid and the Release Deed
\nwas got executed in favour of defendant no.1, by that itself, it
\n24
\ncannot be said that defendant no.1 treated the suit properties as
\nancestral properties and\/or Joint Family Properties.
\n9.4 Even considering the Will executed by defendant no.1
\ndated 11.02.1987 and the subsequent revocation of the Will is
\nsuggestive of the fact that defendant no.1 all throughout treated
\nthe suit property as her selfacquired
\nproperty which according to
\nher were purchased from the Stridhana and selling of the
\njewellery.
\n10. It is required to be noted that in the plaint the
\nplaintiffs came out with the case that the suit properties
\npurchased in the name of defendant no.1 by Narayanasamy
\nMudaliar from the funds raised by selling the ancestral properties
\nreceived by him. It was never the case on behalf of the plaintiffs
\nthat the suit properties were purchased by Narayanasamy
\nMudaliar in the name of defendant no.1 out of the income
\nreceived from the ancestral properties. However, considering the
\ndate of transactions with respect to the suit properties and the
\nancestral properties sold by Narayanasamy Mudaliar, it can be
\nseen that all the suit properties purchased in the name of
\ndefendant no.1 were much prior to the sale of the ancestral
\n25
\nproperties by Narayanasamy Mudaliar. The ancestral property
\nwas sold by the Narayanasamy Mudaliar (Exh. A3) was on dated
\n11.11.1951. However, the Sale Deeds at Exh. B3, B4, B5, B6 and
\nB7 which are in favour of defendant no.1 were much prior to the
\nsale of the property at Exh. A3. Therefore, also it cannot be said
\nthat the suit properties were purchased in the name of defendant
\nno.1 by Narayanasamy Mudaliar from the funds received by
\nselling of the ancestral properties.
\n11. Even considering the observations made by this Court
\nin paragraph 10 in the case of Om Prakash Sharma (Supra) it
\ncan be said that Narayanasamy Mudaliar might have purchased
\nthe properties in the name of defendant no.1 in order to provide
\nhis wife with a secured life in the event of his death. It is required
\nto be noted that it was the specific case on behalf of the
\ndefendant no.1 that the suit properties were purchased by her
\nfrom the Stridhana and on selling of the jewellery.
\n12. It is required to be noted that the benami transaction
\ncame to be amended in the year 2016. As per Section 3 of the
\nBenami Transaction (Prohibition) Act 1988, there was a
\npresumption that the transaction made in the name of the wife
\n26
\nand children is for their benefit. By Benami Amendment Act,
\n2016, Section 3 (2) of the Benami Transaction Act, 1988 the
\nstatutory presumption, which was rebuttable, has been omitted.
\nIt is the case on behalf of the respondents that therefore in view
\nof omission of Section 3(2) of the Benami Transaction Act, the
\nplea of statutory transaction that the purchase made in the name
\nof wife or children is for their benefit would not be available in
\nthe present case. Aforesaid cannot be accepted. As held by this
\nCourt in the case of Binapani Paul (Supra) the Benami
\nTransaction (Prohibition) Act would not be applicable
\nretrospectively. Even otherwise and as observed hereinabove, the
\nplaintiff has miserably failed to discharge his onus to prove that
\nthe Sale Deeds executed in favour of defendant no.1 were benami
\ntransactions and the same properties were purchased in the
\nname of defendant no.1 by Narayanasamy Mudaliar from the
\namount received by him from the sale of other ancestral
\nproperties.
\n12.1 Once it is held that the Sale Deeds in favour of
\ndefendant no.1 were not benami transactions, in that case, suit
\nproperties, except property nos. 1 and 3, which were purchased
\n27
\nin her name and the same can be said to be her selfacquired
\nproperties and therefore cannot be said to be Joint Family
\nProperties, the plaintiffs cannot be said to have any share in the
\nsuit properties (except property nos. 1 and 3). At this stage, it is
\nrequired to be noted that the learned Counsel appearing on
\nbehalf of defendant no.1 has specifically stated and admitted that
\nthe suit property Item nos. 1 and 3 can be said to be the
\nancestral properties and according to him even before the High
\nCourt also it was the case on behalf of the defendant no.1 that
\nitem nos. 1 and 3 of the suit properties are ancestral properties.
\n13. In view of the above and for the reasons stated above,
\nthe present appeal is partly allowed. The impugned judgement
\nand order passed by the High Court as well as the Trial Court
\nholding that the plaintiffs have 3\/4th share in the suit properties
\n(Except Item Nos. 1 and 3 of the suit properties) are hereby
\nquashed and set aside. It is observed and held that except Item
\nNos. 1 and 3 of the suit properties, the plaintiffs have no share in
\nother suit properties. Preliminary Decree directed to be drawn by
\nthe learned Trial Court, confirmed by the High Court, is hereby
\n28
\ndirected to be modified accordingly. The present appeal is partly
\nallowed to the aforesaid extent. No costs.
\n\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.J.
\n[L. NAGESWARA RAO]
\nNew Delhi; \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.J.
\nMay 09, 2019. [M.R. SHAH]
\n29<\/p>\n","protected":false},"excerpt":{"rendered":"
It is required to be noted that the benami transaction came to be amended in the year 2016. As per Section 3 of the Benami Transaction (Prohibition) Act 1988, there was a presumption that the transaction made in the name of the wife and children is for their benefit. By Benami Amendment Act,2016, Section 3 (2) of the Benami Transaction Act, 1988 the statutory presumption, which was rebuttable, has been omitted.It is the case on behalf of the respondents that therefore in view of omission of Section 3(2) of the Benami Transaction Act, the plea of statutory transaction that the purchase made in the name of wife or children is for their benefit would not be available in the present case. Aforesaid cannot be accepted. As held by this Court in the case of Binapani Paul (Supra) the Benami Transaction (Prohibition) Act would not be applicable retrospectively<\/p>\n