Madras High Court
Kaliammal(Died) vs S.K.Subramanian on 22 September, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:22.09.2008 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.NO.754 OF 1996 1.Kaliammal(died) 2.R.Dhatchanamoorthy ... Appellants Second appellant brought on record as LR of the deceased sole appellant vide order of Court dated 13.6.2008 made in C.M.P.No.449 to 451 of 2008 vs. 1.S.K.Subramanian 2.S.K.Ramasamy 3.Parvathi 4.Mariammal 5.Dhanalakshmi 6.Selvam 7.S.V.Venkidusamy 8.Mani 9.K.Rajamanickam 10.Raju Sethupillai 11.Shajahan 12.K.K.Rajagopal .. Respondents Appeal preferred against the judgment and decree dated 1.7.1996 passed in O.S.No.21 of 1996 by the Subordinate Judge, Bhavani. For Appellants : Mr.M.M.Sundresh For Respondents : Mr.T.Murugamanickam for R1 JUDGMENT
This appeal is focussed as against the judgment and decree dated 1.7.1996 passed by the Subordinate Judge, Bhavani in O.S.No.21 of 1996, which is a suit for partition. For convenience sake the parties are referred to here under as per their letigative status before the trial Court.
2. Niggard and bereft of details, the case of the plaintiff as stood exposited from the plaint could be portrayed thus:
(a) The deceased Karuppagounder and D1-Kaliammal (since died during the pendency of the appeal) gave birth to two sons and three daughters, namely, S.K.Subramanian-the plaintiff, D2-S.K.Ramasamy, D3-Parvathi, D4-Mariammal and D5-Dhanalaxmi. The said Karuppagounder died on 17.2.1994 intestate.
(b) The agricultural land measuring an extent of 1.64 acres in Jambai Village of Bhavani Taluk was allotted to the share of the deceased Karuppagounder, in the partition effected between him and his brother and mother. As such, the said agricultural property constituted the ancestral coparcenary property of the co-parcenery, comprised of Karuppagounder and his two sons, namely, the plaintiff and D2 herein.
(c) From out of the income derived from it Karuppagounder purchased the house site on 6.1.1958, whereupon he raised a house and leased it out to various tenants and earned income. The plaintiff being a lorry driver, earned sufficiently and contributed for the welfare of the joint family and augmented the coparcenary income.
(d) Karuppagounder was doing firewood business. On 20.10.1999, the plaintiff's father-Karuppagounder purchased the plot area in the suit property, described in the schedule of the plaint, from out of the joint family funds in the name of D1, his wife. The said property was purchased benami in the name of D1, which was intended to confer any benefit to D1. In law, the suit property happened to be the coparcenary property.
(e) D1 had no financial ability to purchase any property much less the said plot, over which the joint family had put up superstructure for being used as houses and shops.
(f) The ancestral agricultural properties were sold as per sale Deed dated 6.1.1958. A portion of such sale proceeds was utilised for putting up additional constructions in the suit property. The plaintiff with his wife and three daughters living separately in a part of the suit property. Whereas D2 with his son and daughter living in another portion of the suit property. The parents of the plaintiff were much attached towards the second defendant's family.
(g) D6 to D12 are the tenants occupying various portions in the suit properties and Karuppagounder, during his life time collected rents from them. After his death, within a period of six months, dispute erupted between the plaintiff and defendants 1 to 5 in sharing the rents accruing from part of the suit properties. Hence, the suit for partition claiming 7/18th share in the suit properties.
3. Remonstrating and denying, gainsaying and disputing the allegations/averments in the plaint, D1 filed the written statement, which was adopted by D3, the gist and kernal of them would run thus:-
(i) Karuppagounder and his two sons did not constitute Hindu Co-parcenary family. Karuppagounder during his life time sold the only land belonged to him. The said agricultural land, which Karuppagounder got in the partition was not a Nanja land and no income was derived out of it. Karuppagounder had big family comprised of two sons and three daughters and he could not have saved money. As such, the averments in the plaint as though from out of the joint family income the properties were purchased and constructions were raised are all false.
(ii) The plot area of the suit property was purchased by D1 as per Sale Deed dated 20.10.1959 from out of her own sources, as she was doing retail business in vegetables and wholesale business in tomatos and derived income. She also sold her 15 sovereign of jewels, which she got from her mother. As such, from out of her own sources she purchased the plot area of the suit property. The constructions were raised on the said plot by D1 from her own funds by raising loans from Bhavani Co-operative House Mortgage Co-operative Bank.
(iii) D1's daughters namely D4 and D5 each gifted 10 sovereigns of gold jewels so as to enable D1 to raise funds with that and put up construction over the said plot. D3 had matrimonial dispute with her husband and whereupon she did business in tomato and other vegetables and earned sufficiently and living under the care of D1, by contributing her income to D1.
(iv) D1 also incurred debts from 3rd parties for putting up such construction and she discharged them. She also participated in several chit transactions and earned money. D1 permitted the plaintiff to occupy a portion of the suit property out of pity towards him. D1 executed a registered Will on 17.1.1994 bequeathing the suit properties in favour of her grant son Dhatchanamoorthy-the son of D2. The superstructure in the suit property stands in the name of D1 only and the water and electricity connections are in her name and she has been paying the house tax also. The tenants in the part of the suit properties were inducted only by D1 herein and she has been collecting rents from them. During the life time of Karuppagounder and D1, the plaintiff tortured and man-handed them demanding money for his nefarious activities.
Accordingly D1 prayed for dismissal of the suit.
4. The warp and woof of the written statement filed by D2, which was adopted by D4 and D5, would run thus:-
Karuppagounder had no firewood business of his own during the year 1959. Between 1962 and 1965 he had small firewood shop, but he could not run that shop profitably. Hence, he closed down the business. D1 purchased the plot area of the suit property from out of her own sources with the notion that she should have a property of her own.
As such, D2 filed the written statement in support of the stand taken by D1 in her written statement.
5. D12 filed the written statement, which was adopted by D6 to D11, the nitty-gritty of them would run thus:-
The defendants were inducted into the suit property only by D1 and they have been paying rents only to her. Karuppagounder had nothing to do with the tenancy and he did not collect rent from them during his life time.
Accordingly, they prayed for the dismissal of the suit.
6. D1 filed the addition written statement, the warp and woof of it would run thus:-
The agricultural land in Jambai Village referred to in the plaint constituted the separate property of Karuppagounder, as per the partition deed dated 14.7.1954, which emerged between himself and his uterine-brother and his mother, as he got the same towards his share. In fact, they were not co-parceners and consequently, the said agricultural land cannot be taken as the ancestral property, which Karuppagounder got in the partition. Karuppagounder treated the said property as his separate property only.
Accordingly, she prayed for the dismissal of the suit.
7. The trial Court framed the issues. During trail, the plaintiff examined himself as P.W.1 and Ex.A1 to Ex.A33 were marked. On the side of the defendants, the first defendant examined herself as D.W.1 and Ex.B1 to Ex.B8 were marked.
8. Ultimately, the trial Court decreed the suit allotting 7/24th share in favour of the plaintiff.
9. Being aggrieved by and dissatisfied with the judgment and decree of the trail Court, the first defendant filed the appeal. During pendency of the appeal, the first defendant died, consequently the legatee of her 'Will' namely, Dhatchanamoorthy came on record. Tersely and briefly the grounds of appeal would run thus:-
(a) the suit filed by the plaintiff was hit by Section 4 of the Benami Transactions (Prohibition) Act 1988(Act 45 of 1988).
(b) The lower Court, without considering that even if the property had been purchased in the name of the wife, still the benami nature of the transaction could be proved that at the time of purchase of the said property, it was not intended to benefit the wife, but for the benefit of the person who paid the sale price.
(c) ignoring the fact that Karuppagounder had no financial capability to purchase any property or put up any construction, the trial Court held otherwise.
(d) no evidence has been adduced to prove that the suit property was purchased from out of the alleged joint family funds.
(e) Disregarding the fact that D1 from out of her own sources purchased the plot as well as put up construction, the lower Court decreed the suit in favour of the plaintiff.
(f) Karuppagounder during his life time never treated the suit property as his own property; but the documentary evidence on the side of the defendants established that the suit property was treated as an exclusive property.
Accordingly, D1 prayed for setting aside of the judgment and decree of the trial Court and consequently for the dismissal of the original suit.
10. The points for consideration are as to:
(i) Whether the plot area of the suit property was purchased and constructions were made thereon from out of the joint family income of the co-parcenary, which comprised of Karuppagounder and his two sons? or whether the suit property is the absolute property of D1?
(ii) Whether the embargo as envisaged under the provisions of the Benami Transactions (Prohibition) Act 1988 would operate as against the plaintiff's case?
(iii) Whether there is any infirmity in the judgment and decree of the trial Court.
Point Nos.1 and 2:
These points are taken together as they are inter-linked and inter-woven with each other.
11. The warp and woof of the argument of the learned counsel for the plaintiff is that during the life time of Karuppa Gounder, absolutely there was no dispute relating to the property being the co-parcenary property; consequently there had been no necessity for the plaintiff to get any partition effected among the co-parceners, namely Karuppa Gounder, the plaintiff and D2 the co-parceners; within a short time after the death of Karuppa Gounder, bad blood started running in the relationship between the plaintiff on the one side and the defendants 1 and 2 on the other side which necessitated the plaintiff to file the suit for partition; D1 the mother of the plaintiff had no financial wherewithal to purchase either the plot area of the suit property or put up construction thereon and the suit property is out and out the co-parcenary property which was acquired from out of the co-parcenary income in the name of the first defendant not to benefit her, but to benefit the entire co-parcenary family.
12. Animadverting upon the argument as put forth on the side of the plaintiff, the learned counsel for the appellant put across his argument which is pithily and precisely to the effect that Karuppa Gounder had no financial wherewithal to purchase any property, much less the plot area of the suit property and put up construction thereon; the alleged agricultural property cannot be treated as ancestral property; furthermore it was not fetching any income and it was also sold by all the three namely, Karuppa Gounder, the plaintiff and his two sons; the plaintiff had no sufficient income at all to contribute anything so as to augment the alleged joint family income; the records relating to the suit property are all speaking in the name of the plaintiff and the provisions as contemplated under the Benami Transaction (Prohibition) Act, 1988 would squarely applicable as against the very case of the plaintiff for the reason that there is no iota or shred of evidence available on the plaintiff side to prove that the suit property was acquired in the name of the first defendant not to benefit her, but for the benefit of the entire family.
13. At this juncture, it is just and necessary to refer to the legal position relating to benami transactions. Indubitably and indisputably, the suit was filed during the year 1995, so to say long after the commencement of Benami Transaction (Prohibition) Act, 1988. As such, for the purpose of this case, Sections 3 and 4 of the Act are required to be considered in depth. In fact, both sides are not at variance relating to the current legal view governing the concept benami and its prohibition as envisaged under the Benami Transaction (Prohibition) Act, 1988. The following are the relevant precedents:
(i) An excerpt from the decision reported in 1995 (4) SCC 572 [Nand Kishore Mehra v. Sushila Mehra] would run thus:
6. Sub-section (1) of Section 3, as seen, prohibits a person from entering into any benami transaction. Sub-section (3) of Section 3, as seen, makes a person who enters into a benami transaction liable for punishment. Section 5 makes properties held benami liable for acquisition without payment of any amount. But, when sub-section (2) of Section 3 permits a person to enter into a benami transaction of purchase of property in the name of his wife or unmarried daughter by declaring that the prohibition contained against a person in entering into a benami transaction in sub-section (1) of Section 3, does not apply to him, question of punishing the person concerned in the transaction under sub-section (3) thereof or the question of acquiring the property concerned in the transaction under Section 5, can never arise, as otherwise the exemption granted under Section 3(2) would become redundant. What we have said of the person and the property concerned in sub-section (2) of Section 3 in relation to non-applicability of Section 3(3) and Section 5 shall equally hold good for non-applicability of the provisions of sub-sections (1) and (2) of Section 4 in the matter of filing of the suit or taking up the defence for the selfsame reason. Further, we find it difficult to hold that a person permitted to purchase a property in the name of his wife or unmarried daughter under sub-section (2) of Section 3 notwithstanding the prohibition to enter into a benami transaction contained in sub-section (1) of Section 3 cannot enforce his rights arising therefrom, for to hold so would amount to holding that the statute which allows creation of rights by a benami transaction also prohibits the enforcement of such rights, a contradiction which can never be attributed to a statute. If that be so, there can be no valid reason to deny to a person, enforcement of his rights validly acquired even in the past by purchase of property in the name of his wife or unmarried daughter, by making applicable the prohibition contained in respect of filing of suits or taking up of defences imposed in respect of benami transactions in general by sub-sections (1) and (2) of Section 4 of the Act. But, it has to be made clear that when a suit is filed or defence is taken in respect of such benami transaction involving purchase of property by any person in the name of his wife or unmarried daughter, he cannot succeed in such suit or defence unless he proves that the property although purchased in the name of his wife or unmarried daughter, the same had not been purchased for the benefit of either the wife or the unmarried daughter, as the case may be, because of the statutory presumption contained in sub-section (2) of Section 3 that unless a contrary is proved that the purchase of property by the person in the name of his wife or his unmarried daughter, as the case may be, was for her benefit.
7. Therefore, our answer to the question under consideration is that neither the filing of a suit nor taking of a defence in respect of either the present or past benami transaction involving the purchase of property by a person in the name of his wife or unmarried daughter is prohibited under sub-sections (1) and (2) of Section 4 of the Act.
(ii) An extract from the decision of the Hon'ble Apex Court reported in 1998(1) LW 346 [Rebti Devi v. Ram Dutt and another] would run thus:
9. This Court referred to R. Rajagopal Reddy's case (1995 (2) SCC 630 = 1995-1-L.W.427). The plaint being subsequent to 17-5-1988, the principle that the Act was not retrospective as stated in R. Rajagopal Reddy's case was no doubt initially not attracted to that case. That would mean that Section 4(1) applied unless of course the case fell within the exceptions stated either in Section 3(2) or in Section 4(3) of the Act. In that case, this Court permitted the plea of benami in a post-19-5-1988 suit, because the Court was concerned with the exception in Section 3(2). The Court also incidentally referred to the other exceptions falling under Section 4(3). This Court in that case noticed that the purchase was on 24-4-1964 and was in the name of the wife. That was why this Court proceeded to refer to the exception in Section 3(2) which concerns benami purchases in the name of a wife or unmarried daughters. This Court also referred to the presumption contained under the same exception in Section 3(2) to the effect that unless the contrary was proved, in the cases of purchases in the name of a wife or unmarried daughters, it shall be presumed that the property had been purchased for the benefit of the wife or the unmarried daughters. In view of the exception in Section 3(2), the prohibition under Section 3(1) was held not to apply. It was held that even though the plaint was filed after 19-5-1988 such a plea of benami was not shut out. This Court directed that the suit be disposed of, of course, by applying the statutory presumption contained in Section 3(2) which is to be mandatorily drawn but which is rebuttable. The plaintiff in a suit filed after 19-5-1988 could still prove that the property had not been purchased by him for the benefit of his wife and he could rebut the presumption and claim that he was the real owner.
10. Therefore, to the six principles hereinbefore culled out from R. Rajagopal Reddy's case, the following further principles decided in Nand Kishore Mehra's case can be added:
(7) Seventhly, if in a suit, claim or action, a plea or defence based on benami is raised even after 19-5-1988 and the purchase is in the name of a wife or unmarried daughter, such a plea of benami is permissible and R. Rajagopal Reddy's case will not come in the way merely because the plea is raised after 19-5-1988. Such a plea if raised, will however have to be decided taking into account the statutory presumption laid down in Section 3(2). This is because the Act says that if the purchase is in the name of the wife or unmarried daughter, the prohibition in Section 3(1) will not apply. Section 3(2) is enacted as an exception to the provisions in the Act and does not depend for its interpretation on the question as to what extent Sections 4(1) and 4(2) are retrospective.
(8) Eighthly, if the case falls within the exception in Section 4(3)(a) i.e. 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 coparceners in the family, or where as stated in Section 4(3)(b) 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 stands in such capacity, then in both situations if such a plea or defence is raised in a suit filed after 19-5-1988, the same can be decided by the Court notwithstanding Section 4(1) or 4(2) and notwithstanding what is decided in R. Rajagopal Reddy's case.
11. For the above reasons, we are unable to find how Nand Kishore Mehra's case can be said to have doubted R. Rajagopal Reddy's case. In fact, far from doubting it, it proceeds to accept the said judgment and then considers the case of exceptions provided in Section 3(2). It holds incidentally that there is another exception contained in Section 4(3) of the Act. These exceptions apply even to suits filed after 19-5-1988 and are not affected by what is decided in R. Rajagopal Reddy's case.
12. In order to complete the discussion, we shall also refer to two subsequent cases. The case in Heirs of Vrajlal J. Ganatre v. Heirs of Parshottam S. Shah 1996(4) SCC 490 was one where the suit was filed in 1981 claiming that the defendant in whose name the deed dated 16-12-1963 stood was benami. The plaintiffs heirs filed appeal in the Gujarat High Court in 1990 against the judgment of the trial court. No contention based on the Act of 1988 was raised in the High Court. For the first time it was argued in this Court that the plea was prohibited by the Act. This Court followed R. Rajagopal Reddy's case and held that the plea was raised in a suit filed before 19-5-1988, and it was not barred under the Act. This Court then proceeded to decide the case on merits, dismissing the plaintiffs appeal."
14. From the above it is crystal clear that as per Section 3(2) of the Benami Transaction (Prohibition) Act, there is a presumption that if a property stands in the name of the wife, it is presumed that it was so purchased in her name for the benefit of the wife and such a presumption is a rebuttable one which means that the person who pleads benami should prove that the intention of such purchase in the name of the wife was not for her benefit, but for the benefit of the person who paid the money for such purchase.
15. Keeping in mind the aforesaid settled proposition of law, I would like to analyse the evidence on record.
16. Ex.B1, the sale deed dated 20.10.1959 speaks of the fact that the first defendant purchased the plot area in the suit property for a valuable consideration of Rs.1,500/-. According to the first defendant, in her written statement as well as in her deposition D.W.1, she purchased the said plot as per Ex.B1 from out of her own earnings as a vegetable vendor and also by selling her 15 sovereigns gold jewels which was given to her at the time of her marriage by her parents. As such, her deposition is in support of the recitals in Ex.B1 the sale deed, whereas, it is the contention of the plaintiff as P.W.1 that the first defendant had no financial capability at all to purchase such property and that the said co-parcenary family alone had necessary income and it was purchased. It is a trite proposition of law that the plaintiff who pleads benami should prove it and onus of proof is not on the defendants.
17. On the side of the plaintiff, the learned counsel would submit that the first defendant has not produced any evidence so as to fortify and buttress her plea. At this juncture, I recollect fruitfully the common or garden principle governing the adjudication in civil cases that the plaintiff cannot try to achieve the success in the litigative battle by picking holes in the case of the defendants, but he has to stand or fall on his own pleadings and evidence. Except the sole testimony of the plaintiff as P.W.1, absolutely there is no iota or shred of evidence or circumstances highlighted concerning the benami transaction and that too, as already observed supra, here in this case, it is not enough even if the alleged payment of sale consideration by the family is proved, but it should be established that the property was purchased in the name of the first defendant not for benefiting her but for the benefit of the family. As such, the burden of proof so far this case is concerned is two fold on the plaintiff's side.
18. At the first instance, the plaintiff must be able to prove that the sum of Rs.1,500/- as contemplated in Ex.B1 was not paid by the first defendant from out of her own income, but it was from out of the co-parcenary family income and over and above, he must also be able to show that at the time of such purchase, the first defendant was not intended to be benefited by it, but only the co-parcenary family. Keeping the aforesaid principle in mind, if the evidence is analysed it is at once crystal clear that absolutely there is no miniscule or exiguous extent of evidence adduced on the plaintiff's side to prove the facts capable of attracting the aforesaid ingredients. It is the claim of the first defendant that she raised construction over the suit property from the year 1970 onwards and completed it, by from out of her own funds, so to say by availing loan from the Bhavani Co-operative House Mortgage Society Limited and also other financial assistance from her son-in-laws. Ex.B2, the pass book issued by the Bhavani Co-operative House Mortgage Society Limited would reveal that she availed housing loan during the year 1971 and she had lot of transactions as found set out therein. Ex.B3 the pass book issued by the Bhavani Koodal Co-operative Urban Bank Limited would exemplify that the first defendant availed loan from such Bank also. As such, by way of buttressing and fortifying her contention, she relied on clinching documentary evidence; over and above that to prove that she from her income raised construction, Ex.B4 the approved plan would speak to the effect that such a plan was issued in the name of the first defendant only for raising construction over the suit property. Ex.B5 would demonstrate that the share certificate was issued in the name of the first defendant by the said Urban Bank.
19. The learned counsel for the plaintiff would try to torpedo the documentary evidence on the side of the first defendant by putting forth his argument that it was no wonder that those loan transactions and building plan are standing in the name of the first defendant, because Ex.B1 stands in her name.
20. I am at a loss to understand as to how those clinching documentary evidence can simply be brushed aside accepting the argument of the learned counsel for the plaintiff ignoring the fact that the onus of proof is on the plaintiff as held supra to prove his case, which he failed to prove. Over and above those clinching documentary evidence, the first defendant also palpably and pellucidly highlighted that the suit property was assessed in her name by the Municipality relating to property tax and the electricity connection also stands in her name as revealed by Ex.B6 series which comprised of the house tax receipts and the electricity charges.
21. Exs.A5 and A6 were filed by the plaintiff with the authentic documentary evidence adduced on the side of the first defendant.
Exs.A5 and A6 are mere receipts issued by the Municipality relating to the tea and biscuit shops in the plaintiff's name. Admittedly, it is the case of the first defendant that she allowed the plaintiff being her son to occupy a portion of the suit property and in such a case, such receipts Exs.A5 to A16 would have no evidentiary value at all to discharge the burden of proof heavily cast upon him as observed supra. Exs.A17 to A24 are the receipts evidencing the payment of electricity charges which are in the name of the first defendant only and that would not in any way enure to the benefit of the plaintiff's case. Ex.A25 is the letter sent by Canara Bank to S.K.Subramanian, the plaintiff citing his address as 72, Anthiyur Road, Tea Stall, Bhavani, presumably referring to part of the suit property. This is a pococurante evidence sought to be placed before the Court and it is quite obvious that no more elaboration is required. Ex.A26 is the voter's card of S.K.Subramanian the plaintiff. Ex.A27 is the receipt issued by the Weights and Measures Department relating to his said shop and Ex.A28 is the certificate of Registration of Users of Weights and Measures issued to the plaintiff relating to his shop. Ex.A29 is the certificate of verification issued by the Department of Weights and Measures relating to the plaintiff's business. Exs.A30 and A31 are the cash receipts issued by the Inspector of Labour relating to his shop. As such, the aforesaid documentary evidence adduced on the side of the plaintiff are not worth the paper on which those documents are found printed/inscribed or written considering the mammoth heavy burden caused upon the plaintiff to prove his case.
22. At this context, it is just and necessary to analyse the evidence relating to the alleged ancestral property of the first defendant which he got in the partition as per Ex.B8 which would exemplify that on 14th July 1954, a partition emerged among the following persons, namely Krishnammal W/o Ramasamy Gounder and her two sons namely Narayana Gounder and Karuppa Gounder (father of the plaintiff). An excerpt from it is absolutely necessary and accordingly, it is extracted here under for ready reference:
"1954 tUc&k; N:iy khjk; gjpdhd;F njjp gthdp jhY}f;fh $k;ig fpuhkk; rPj ghisaj;jpypUf;Fk; td;dpah; gaph; uhkrhkp ft[z;ld; kidtp fpUc&;zk;khs; 1 i&ahs; kf;fs; ehuhaz ft[z;ld; 2/ fUg;g ft[z;ld; 3 Mfpa ehk; vGjpf; bfhz;l ghfg;gphptpidg; gj;jpuk;/ ek;kpy; 1yf;fkpl;ltUf;F 2yf;fkpl;l ehuhazf; ft[z;ld;; uhkrhkp ft[z;ld; K:y;akha; Vw;gl;l xnu xU kfd; ek;kpy; 1yf;fkpl;ltUf;F 3yf;fkpl;l fUg;g ft[z;ld; vd;gtd; Fg;g ft[z;ld; K:y;akha; Vw;gl;l Xnu xU kfd;/ Mifahy; ehk; rnfhjuu;fs; Mf ntz;Lk;/ ,jdoapy; fhdhqk; g{uhr; brhj;Jf;fspy; rpyJ ek;kpy; 2/3 yf;fkpl;ltUf;F bghJthf capy; rhrd K:y;akha[k;. fpua tifapYk; ghj;jpag;gl;L ehk; bghJthf mDgtpj;J te;jjpy; ekf;Fs; brsfhpag;glhky; ghfg;gphptpid bra;J bfhs;s mgpg;gpuhag;gl;L g";rhaj;jhu;fs; igry; go ghfg;gphptpid bra;J bfhz;ljpd; tpgukhtJ"
23. The above excerpt would support the contention of the first defendant that the plaintiff's father Karuppa Gounder was the uterine brother of Narayana Gounder. It is not known that they got any property from their common male ancestor. Unless it could be shown that from a common male ancestor the property devolved upon those two brothers or that those two borthers constituted a co-parcenary and out of their joint exertion the property emerged, the question of treating the property allotted to Karuppa Gounder under Ex.B8 as ancestral property would not arise. At this juncture, I would like to refer to the definition of co-parcenary/Ancestral property:
"Coparcenary property:Coparcenary property means and includes (1) ancestral property, (2) acquisitions made by the coparceners with the help of ancestral property, (3) joint acquisitions of the coparceners even without such help provided there was no proof of intention on their part that the property should not be treated as joint family property, and (4) separate property of the coparceners thrown into the common stock.
Ancestral Property: The term "ancestral property", which is a technical term having a special meaning, does not mean property inherited from any ancestor, male or female, paternal or maternal, near or remote, but only such property as is inherited by a male from father, father's father and father's father's father [Atar v. Thakar, 35 I.A. 206: 5 C.1039: 6 I.C.721:18M.L.J.379:10 Bom.L.R.790; 12 C.W.N.1049(P.C.); Mahomed Hussain v. Babu Kishva Nandan, 46 L.W.1:1937 M.W.N.683: (1937) 2 M.L.J.151; Venkateshwarlu v. Raghavalu, 1955 An.W.R.39; Budhraj v. Bhan zarlal, 1954 Ajmer 69. Cf., Naragand Prabhu v. Janardhana Mallan, 1973 Ker.L.R.665]. Such inheritor's son, son's son and son's son's son get an interest in it by birth and can interdict improper alienations by the inheritor, whose position in respect of that property, though it will otherwise be absolute, is reduced in the presence of such descendants, to that of an owner with restricted rights [Chuttan Lal v. Kallu, 33 A.283: 8 A.L.J.15: 8 I.C.719; Jugmohandas v. Mangaldas, 10 B.528; Mahomed Hussain v. Babu Kishva Nandan, supra]. The circumstance that the property has been inherited from one of such three immediate paternal ancestors after the interposition of a life tenure created by that ancestor in his wife's favour does not take away the character of the property as ancestral and the inheritor's lineal male descendants up to the third degree will get an interest in it by birth [Beni Parshad v. Puran Chand, 23 C.262; Nanabhai v. Achratbai, 12 B.122]. Nor does the circumstance that the property, when it was with the ancestor from whom it was inherited was his self-acquired or separate property affect the question [Ram Narain v. Pertum Singh, 11 Beng.L.R.397; Madivalappa v. Subbappa, 39 Bom.L.R.895: 1937 B.458; Shyam Behart v. Rameshwar, 20 Pat.904: 1942 Pat.213; Mst.Ram Devi v. Mst.Gyarse, 1949 All.545 (F.B.)] Besides, it is absolutely immaterial whether the sons were born to the inheritor before or after the inheritance fell in. But if the property is inherited from a paternal ancestor beyond the third degree then the property is not ancestral as against the inheritor's sons, and the inheritor has absolute powers of disposal over it. So also, if the inheritor has neither a son, son's son, nor son's son's son, the property is absolute in the inheritor's hands even though he may have other relations, for instance, a great-great-grandson on a paternal uncle, in the case of inheritance from father [Janki v. Nand Ram, 11 A.194)"
24. As such, this Court cannot assume or presume that the property allotted to the first defendant happened to be ancestral property and that constituted the income bearing joint family nucleus among Karuppa Gounder and his two sons namely the plaintiff and the second defendant. Ex.A32 is the certified copy of the sale deed dated 15th June 1967 executed by Karuppa Gounder and his two sons in favour of third party alienating the property which Karuppa Gounder obtained under Ex.B8. No doubt, in Ex.A32 he referred to the property therein as his ancestral property as well as self acquired property and such reference by itself would not enure to the benefit of the plaintiff to contend that the property contemplated in Ex.B8 is the ancestral property. Even for argument sake, it is taken that it happened to be the ancestral property, nonetheless, there is nothing to indicate that during the year 1959, the co-parcenary comprised of Karuppa Gounder and his two sons was capable of generating income from that agricultural property which as per Ex.B8 was measuring only an extent of 1.07 acres. Whereas, in Ex.A3, the extent contemplated is 1.64 acres. Presumably, the executants referred to the self acquired property of the first defendant also in that extent of 1.64 acres and the recitals in Ex.A32 would also exemplify the same. Ex.A4 is the sale deed dated 27th November 1961 executed by the said Karuppa Gounder in favour of a third party alienating the property which he acquired as per the sale deed dated 06.01.1958. The recitals in Ex.A4 would unequivocally highlight the point that the said property referred to in Ex.A4 was purchased earlier from out of Karuppa Gounder's own funds and it constituted his self acquired property which he mortgaged it with Bhavani Koodal Co-operative Urban Bank Limited and a part of the debt was discharged and the remaining part was yet to be discharged and in that context, he sold that property.
25. It is therefore crystal clear from the recitals that he treated the property referred to in Ex.A4 as his self acquired property, whereas he treated the agricultural property which he got in the partition Ex.B8 as the one in which his sons also had share and accordingly, alienated the same as per Ex.A32, but he treated the suit property as the exclusive property of his wife D1 and he never laid any claim over it. Had as contended by the plaintiff that all the properties referred to supra constituted the joint co-parcenary property, then Karuppa Gounder would not have gone to the extent of referring the property in Ex.A4, as his self acquired property. Furthermore, even in Ex.A32 itself in respect of the said entire extent of 1.64 acres, he would state that part of it was treated as common property of himself and his sons and the remaining part was treated as his self acquired property.
26. The contention of the plaintiff that all the aforesaid properties contemplated under those documents were all treated as joint co-parcenary property is not at all well founded and such a plea emerged by catching hold of the wrong end of the stick by the plaintiff. Indubitably, the plaintiff did not raise any objection for the property having been sold as per Ex.A4. In the plaint he would contend that the property contemplated under Ex.A4 was purchased from out of the joint family funds, but my above discussion supra would highlight that Karuppa Gounder treated it as his self acquired property and accordingly, he mortgaged it and subsequently sold it without adding his two sons as parties and the plaintiff also kept quiet and he had not raised his little finger as against such alienation. But, on the other hand, in Ex.A32 relating to the sale of the said agricultural land, the plaintiff and D2 were also added along with Karuppa Gounder and executants.
27. At this juncture, my mind is reminiscent of the trite proposition of law that witnesses might lie but circumstances will not and that preponderance of probability would govern the adjudication in civil cases. Accordingly if viewed, it is crystal clear that the plaintiff by his own conduct agreed to the method and manner in which his father treated those properties under three categories as delineated above.
28. Palpably and apparently, pellucidly and glaringly, Karuppa Gounder was meticulous and cautious enough in treating three categories of properties during his life time as set out supra. As such, in those three categories, the suit property was treated as the self acquired property of D1.
29. The fact also remains that Ex.B7 the Registered Will emerged on 17th January 1994, so to say during the life time of Karuppa Gounder as he died on 17.02.1994 as demonstrated by Ex.A1, the Death Certificate.
30. The learned counsel for the plaintiff would try to put across his point as though neither the plaintiff nor Karuppa Gounder was aware of such execution of the Will and that during the life time of Karuppa Gounder, absolutely there had been no necessity at all for the plaintiff to lay claim over the suit property because the suit property was treated only as the joint property. Such an argument is found torpedoed by the plaintiff's own averment in the plaint at paragraph No.5 and it is extracted here under for ready reference:
" 5. ... The plaintiff got married and only three daughters were born to him. The second defendant has got a son also besides his daughter. Hence, the parents of the plaintiff were much inclined towards the family of the second defendant. After the marriage of the second defendant, the plaintiff, his parents and the second defendant were living separately in the suit properties for convenience through the entire suit properties jointly belong to the plaintiff, the second defendant and to their father.
6. As such the plaintiff is in occupation of the asbestos roofed shop bearing door No.97 with electric service connection bearing S.C.No.404. He is also residing in the back portion of the suit properties which forms a part of Door No.104. The portions of the suit properties in occupation of the plaintiff are shown in red colour in plaint plan. ... "
31. Even though the plaintiff would contend that his father alone inducted the tenants into a part of the suit property during his life time, he has not chosen to adduce any evidence. But, on the other hand, the tenants filed the written statement in unmistakable terms and no uncertain terms that it was D1 who inducted them into the part of the suit property and she had been collecting the rent from the inception of the tenancy. It is therefore clear that the plaintiff is fraught with unsustainable and baseless averments and the plaintiff miserably failed to prove his case.
32. The learned counsel for the appellant would put across his specious argument without fraught with casuistry or sophistry or legerdemaie to the effect that the trial Court itself gave a finding that the first defendant contributed for the construction in the suit property. However, after giving such a finding it got itself flummoxed by the wrong logic as dished out and put forth on the plaintiff's side, by holding that in recognition of the money spent by D1, she is entitled to 1/4th share in the suit property.
33. I am in full agreement with the argument as put forth by the learned counsel for the appellant in view of the fact that the trial Court based on facts recognised that D1 had the financial wherewithal to put up construction over the suit property and in such a case, it amounts to the trial Court having rejected the plea of the plaintiff that D1 was penniless and had no financial wherewithal at all to do anything significantly relating to the purchase of the plot or for raising construction thereon.
34. In the absence of evidence having been let in to fortify and buttress the plea of the plaintiff, the trial Court should have accepted the case of D1 and should not have decreed the suit. Without aufait with the law relating to Benami, the trial Court upheld the plea of the plaintiff even though his plea is nothing but a slippery slope which he had chosen to wrongly lay claim over the suit property.
35. In the result these two points are decided in favour of the appellant to the effect that the plot area of the suit property was purchased by D1 from out of her own funds and she raised construction thereon from her independent sources and accordingly, D1 was the absolute owner of the suit property and she had the right to execute the registered Will in favour of D2's son. It is not the case of plaintiff that D2 acted as Svengali over D1 and got the Will executed in favour of his son but D1's right over the suit property alone was challenged which turned out to be an unsustainable plea.
36. Correspondingly, point No.2 is decided to the effect that the embargo as envisaged in the provision of Benami Transaction (Prohibition) Act 1988 could operate as against the case of the plaintiff.
POINT NO:3
37. In view of the ratiocination adhered to in deciding point Nos.1 and 2, the appeal is allowed and the judgment and decree of the trial are set aside and the Original Suit is dismissed. No costs.
22.09.2008 gms Index : Yes Internet: Yes To The Subordinate Judge, Bhavani.
G.RAJASURIA, J.
gms Pre-delivery judgment in A.S.No.754 of 1996 22.09.2008