Karnataka High Court
Smt N Narasamma vs Smt Prema Kumari N on 21 November, 2023
Author: V Srishananda
Bench: V Srishananda
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NC: 2023:KHC:42109
RFA No. 979 of 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
®
DATED THIS THE 21ST DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL No.979 OF 2008 (DEC)
BETWEEN:
SMT. N. NARASAMMA,
W/O LATE B. ANDANAPPA,
AGED ABOUT 64 YEARS,
R/AT NO.1103, 18TH B MAIN,
5TH BLOCK, RAJAJINAGAR,
BANGALORE - 10.
REP. BY HER SON AND GPA HOLDER
SRI. A. MANJUNATH,
AGED ABOUT 40 YEARS,
S/O LATE B. ANDANAPPA,
R/AT NO.1103, 18TH 'B' MAIN,
5TH BLOCK, RAJAJINAGAR,
BANGALORE - 560 040.
Digitally ...APPELLANT
signed by R
MANJUNATHA (BY SRI. T. SESHAGIRI RAO,
Location: SRI. SUNIL S RAO,
HIGH COURT
OF SRI. MUNIRAJU K. AND
KARNATAKA
SRI. M.M. HEGDE, ADVOCATES)
AND:
SMT. PREMA KUMARI N.,
W/O K.B. SHANKARAIAH,
AGED ABOUT 52 YEARS,
R/AT NO. 74C, 17TH A CROSS ROAD,
4TH BLOCK, 4TH STAGE,
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NC: 2023:KHC:42109
RFA No. 979 of 2008
BASAVESHWAR NAGAR,
BANGALORE.
...RESPONDENT
(BY SRI. G.V. CHANDRASHEKHAR, SENIOR COUNSEL A/W
SRI. V. KRISHNA MURTHY AND
SRI. BYREGOWDA N., ADVOCATES)
THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER 41
RULE 1 R/W SEC.96 OF CPC AGAINST THE JUDGEMENT AND
DECREE DATED 10.07.2008 PASSED IN OS.NO.3452/2003 ON
THE FILE OF THE XXXVII ADDL.CITY CIVIL AND SESSIONS
JUDGE, BANGALORE, DISMISSING THE SUIT FOR
DECLARATION OF OWNERSHIP AND POSSESSION AND IN THE
ALTERNATIVE PARTITION, SEPERATE POSSESSION AND RELIEF
OF INJUNCTION.
THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri.T.Seshagiri Rao, learned counsel for the appellant and Sri.G.V.Chandrashekar, learned Senior Counsel for the respondents.
2. The present appeal is filed challenging the validity of the judgment and decree passed in O.S.No.3452/2003 dated 10.07.2008 on the file of XXXVII Additional City Civil Judge, Bangalore City (CCH - 38).
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3. Parties are referred to as plaintiffs and defendants for the sake of convenience as per their original ranking before the Trial Court.
4. A suit came to be filed by the plaintiffs with the following prayer:
"(a) Grant a judgment and decree declaring that the first plaintiff is the owner in possession of 'A' Schedule property having got the same allotted from the B.D.A. in the name of the first defendant, the lease cum sale deed dated 28.07.1988 (Registered on 8-8-88) executed by BDA Registered as No.1289/1988-89 in Book I, at pages 114 to 118 and (registered on 29.05.1999) also executed by BDA which is registered in the office of the Sub-
Registrar, Srirampuram, Bangalore.
(b) Declare that the plaintiffs are the owners in possession of suit schedule 'B' property which is a portion of the property purchased by first plaintiff under a Registered Sale dated 21.01.1960 registered as No.9078/1959-60 in the office of the Sub-Registrar, Bangalore North taluk and subsequently declare that the gift deed dated 29.12.2001 executed by the first defendant in favour of the second defendant which is registered in the office of the Sub-Registrar, Rajajinagar as null and void and unenforceable in law.
(c) Grant permanent injunction restraining the defendants their agents, servants or any one on their behalf from interfering with the plaintiffs peaceful possession and enjoyment of the Schedule 'A' and 'B' properties in any manner.
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(d) Grant any other relief or reliefs as this Hon'ble Court may deem fit to grant in the circumstances of the case to meet the ends of justice.
(e) Direct the defendants to pay costs of this suit.
5. The suit properties are comprised of three items which are described in Schedule 'A', 'B' and 'C' as under:
SCHEDULE - A Site bearing No.1113 sitauted at Chandra Layout, Ist stage, Ist Phase, measuring East to West 12.20 meters and North to South 9.14 meters bounded on the East by Road, West by Site No.1110, North by Site No.1112 and South by Site No.1114.
SCHEDULE - B Portions of property bearing No.90/9 presently situated at Magadi Main road, Agrahara Dasarahally Industrial City Ward No.21 of Bangalore Mahanagara Palike, measuring East to Wet 36 feet and North to South 30 feet with an industrial shed, bounded on the East by Road, West by property belonging to Veerappa and Sons, North by remaining portion of the same property bearing No.90/9 and South by vacant site belonging to Smt.Lakshmidevamma.-5-
NC: 2023:KHC:42109 RFA No. 979 of 2008 SCHEDULE - C Gift deed dated 29.12.2001 which is registered in the office of the Sub-Registrar, Rajajinagar, as No.4861/2001-02 at Book No.1 executed by the first defendant Smt.Narasamma in favour of the Second defendant Smt.Premakumari in respect of Schedule 'B' property.
6. It is the contention of the plaintiff that plaintiff No.1 namely Sri.Narasimaiah was working as employee in Binny Mills Ltd. and he retired in the year 1964.
Defendant No.1 is the mother of Sri.Narasimaiah and plaintiff No.2 and defendant No.2 are the daughters born in the wedlock between plaintiff No.1 and defendant No.1.
7. It is further contention of plaintiffs that plaintiff No.1 was earning salary in a sum of Rs.350/- per month from his employer in Binny Mills Ltd. and from the said salary amount, plaintiff No.1 purchased item No.2 of the property through a registered sale deed dated 21.01.1960 marked at Ex.P.3.
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8. It is further contention of the plaintiffs that during the year 1988, BDA had called for allotment of sites and defendant No.1 applied for allotment of the house sites by filing an application and lease cum sale deed came to be executed after allotment on 28.07.1988 and subsequently, a sale deed came to be registered in the name of defendant No.1.
9. It is further contention of the plaintiff that defendant No.1 is a house wife, who had no income whatsoever. Therefore, the sale consideration in respect of Ex.P.3 and sale consideration for allotment of the sites by the BDA in the name of defendant No.1, were met by plaintiff No.1 from out of his earnings. Therefore, it is the property of plaintiff No.1, but the same is standing in the name of defendant No.1.
10. It is further contended by the plaintiffs that there was a settlement and portion of the property in item No.1 was permitted to be occupied by plaintiff No.2 and she was permitted to construct a house and form a road -7- NC: 2023:KHC:42109 RFA No. 979 of 2008 by spending sum of Rs.3,50,000/-. Thereafter, she continued to be in possession of the property.
11. Further, it is contended that portion occupied by plaintiff No.2, was let out by one Sri.Govinda Chowdari on rental basis and plaintiff No.2 was collecting rents from the portion, which was in possession of plaintiff No.2.
12. It is further contention of the plaintiffs that clandestinely defendant No.1 executed a gift deed in favour of defendant No.2 on 29.12.2001 without any right, whatsoever, possessed by the defendant No.1 to execute the gift deed in favour of defendant No.2 and therefore, plaintiffs are constrained to file a suit with the aforesaid prayer.
13. Upon service of suit summons, defendants entered appearance and filed a detailed written statement.
In the written statement, the plaint averments are denied in toto. It was contended that suit of the plaintiffs' is not -8- NC: 2023:KHC:42109 RFA No. 979 of 2008 maintainable. The only admission that was there in the written statement is about the relationship of the parties.
14. Defendants denied that plaintiff No.1 was earning a sum of Rs.350/- per month as salary and he had contributed for the purchase of item Nos.1 and 2 of properties and sought for dismissal of the suit.
15. On the contrary, it was maintained by the defendants that defendant No.1 out of her earnings, purchased suit item No.2 from her own brother by means of registered sale deed dated 21.01.1960 and plaintiff No.1 had not contributed any money for the purchase of the said property.
16. Further, it was contended by the defendants that defendant No.1 applied for allotment of the house site from BDA and in pursuance of her application, BDA allotted item No.1 of the suit property and thereafter, on adhering to the terms of lease cum sale deed, BDA executed a sale deed in favour of defendant No.1 and -9- NC: 2023:KHC:42109 RFA No. 979 of 2008 therefore, defendant No.1 is the absolute owner in respect of item Nos.1 and 2 of the suit properties and therefore, she was competent enough to gift both the properties in favour of defendant No.2 and sought for dismissal of the suit.
17. Based on the rival contentions of the parties, learned Trial Judge raised following issues and additional issues:
"1. Does 1st plaintiff prove that he got allotted site by BDA in the name of 1st defendant and that he paid the consideration amount in respect of suit property?
2. Is the 1st plaintiff the beneficiary of the lease sum sale agreement dated 28.07.1998 executed by BDA in favour of first defendant?
3. Can 1st plaintiff claim title over the suit site in view of execution of absolute sale deed dated 06.05.1999 by BDA in favour of 1st defendant?
4. Does plaintiff prove he purchased revenue site referred in para 5 of plaint in the name of 1st defendant under the registered sale deed dated 21.01.1960 and rectified as per rectification deed dated 04.06.1964 out of his money and also money contributed by 2nd plaintiff?
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5. Was the industrial shed on suit property constructed out of the money of the 2nd plaintiff?
6. Is the registered gift deed dated 29.12.2001 executed by 1st defendant in favour of 2nd defendant valid and legal?
7. Were plaintiffs in lawful possession of suit property on the date of the suit?
8. Is alleged interference true?
9. Is the suit property valued and court fee paid sufficient?
10. What decree or order?
Additional Issues:
1. Whether the plaintiff proves the gift deed dated 29.12.2001 and 10.12.1999 and rectification deed dated 09.07.2003 made by the first defendant in favour of the second defendant are not binding on the share of the plaintiff?
2. Whether the plaintiff is entitled for alternative relief of decree for partition and separate possession of the plaintiff's half share in the entire suit schedule property?
18. In order to prove the case of the plaintiffs, plaintiff No.2 got examined herself as P.W.1 and Sri.S.L.Venkatesh and Smt.Jeevarathna are examined as
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NC: 2023:KHC:42109 RFA No. 979 of 2008 P.W.2 and P.W.3 and plaintiffs relied on as many as 46 documents which were exhibited and marked as Ex.P.1 to Ex.P.46 comprising of following documents:
Ex.P.1 - Certified copy of lease cum sale agreement dated 28.07.1988.
Ex.P.2 - Certified copy of sale deed dated 06.05.1999 Ex.P.3 - Certified copy of the sale deed dated 21.01.1960.
Ex.P.4 - Certified copy of the tax demand register extract.
Ex.P.5 - Certified copy of the rent agreement.
Ex.P.6 - Certified copy bank account extract.
Ex.P.7 - Certified copy of the bank extract of Govinda Chowdari.
Ex.P.8 - Certified copy of license for power traders.
Ex.P.9 - True copy of the sale deed dated 05.05.1990.
Ex.P.10 - Certified copy of the gift deed dated 29.12.2001.
Ex.P.11 - Certified copy of the sale deed dated 12.12.1996.
Ex.P.12 - Certified copy of the sale deed dated 11.07.2002.
Ex.P.13 - Copy of allotment letter.
Ex.P.14 to 18 - Office copy of the income tax returns.
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NC: 2023:KHC:42109 RFA No. 979 of 2008 Ex.P.19 - Certified copy of the sale deed dated 21.01.1960.
Ex.P.20 - Certified copy of the rectification deed.
Ex.P.21 - Certified copy will deed 15.01.1993.
Ex.P.22 - Certified copy of the will dated 15.01.1993.
Ex.P.23 - SBI bank pass book.
Ex.P.24 to 26 - Certified copy of voters lists.
Ex.P.27 - Partition deed dated 20.11.1974.
Ex.P.28 - Certified copy of the rectification deed.
Ex.P.29 - Certified copy of letter dated 16.05.1977.
Ex.P.30 - Certified copy of affidavit of Narasamma.
Ex.P.31 - Certified copy of letter dated 07.07.1987 and 25.06.1986.
Ex.P.32 - Certified copy of challan dated 26.09.1985.
Ex.P.33 - Certified copy of letter to BDA.
Ex.P.34 - Certified copy of application dated 10.05.1985.
Ex.P.35 - Certified copy of additional information sheet.
Ex.P.36 - Certified copy of affidavit dated 10.05.1985.
Ex.P.37 - Certified copy of letter dated 24.12.1982.
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NC: 2023:KHC:42109 RFA No. 979 of 2008 Ex.P.38 - Copy of correct dimension report dated 08.03.1984.
Ex.P.39 - Certified copy of allotment intimation dated 30.07.1984.
Ex.P.40 - Certified copy of challan bearing No. 103223.
Ex.P.41 - Certified copy of letter dated 2nd November with resolution dated 17.01.1982.
Ex.P.42 - Certified copy of encumbrance certificate.
Ex.P.43 - Certified copy of letter dated 30.05.1977.
Ex.P.44 - Copy of voters list of 1983.
Ex.P.45 - Copy of another voters list.
Ex.P.46 - Certified copy of further chief and cross of P.W. 1 in O.S.4990/2002.
19. To counter the oral and documentary evidence placed on record on behalf of the plaintiffs, on behalf of defendants, Sri.K.B.Shankaraiah, is examined as D.W.1, who claims himself as Power of Attorney Holder of defendant No.2 and Smt.Chandramma, is examined as D.W.2. Defendants placed reliance on 21 documents which were exhibited and marked as Ex.D.1 to Ex.D.21 comprising of following documents:
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RFA No. 979 of 2008
Ex.D.1 - Allotment letter.
Ex.D.2 - Challan dated 27.07.1985.
Ex.D.3 - Challan dated 05.04.1999.
Ex.D.4 - Tax paid receipt.
Ex.D.5 - Endorsement dated 02.08.2003.
Ex.D.6 - Possession certificate.
Ex.D.7 - Khatha certificate
Ex.D.8 - Sale deed dated 06.05.1999.
Ex.D.9 - Gift deed dated 10.12.1999.
Ex.D.10 - Rectification deed dated 09.07.2003.
Ex.D.11 - Special notice dated 28.08.2003.
Ex.D.12 - Tax paid receipt.
Ex.D.13 - Encumbrance certificates &14 Ex.D.15 - Receipt dated 21.02.1983.
Ex.D.16 - Notice dated 18.02.1999.
Ex.D.17 - Khatha certificate.
Ex.D.18 - Certificate dated 30.01.2008.
Ex.D.19 - Special power of attorney.
Ex.D.20 - Election ID card.
Ex.D.21 - Ration card.
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20. Thereafter, learned Trial Judge heard the parties in detail and on cumulative analysis of oral and documentary evidence on record, dismissed the suit of the plaintiffs by recording the findings on the issues and additional issues as under:
Issue No.1 : Negative
Issue No.2 : Negative
Issue No.3 : Negative
Issue No.4 : Negative
Issue No.5 : Negative
Issue No.6 : Affirmative
Issue No.7 : Negative
Issue No.8 : Negative
Issue No.9 : Affirmative
Issue No.10 : As per final order
Additional : Negative
Issue No.1
Additional : Negative, for the
Issue No.2 following
21. Being aggrieved by the same, unsuccessful plaintiffs have preferred the present appeal on the following grounds:
The learned trial Judge answered Issue Nos. 1, 2 and 3 together in the negative.
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NC: 2023:KHC:42109 RFA No. 979 of 2008 Issue Nos. 1,2 and 3 read thus :
1. Does 1st Plaintiff prove that he allotted site by BDA in Defendant and that he paid the got name of 1st the consideration amount in respect of the suit property ?
2. Is the 1st Plaintiff the beneficiary of the lease cum sale agreement dated 28.7.1998 executed by BDA in favour of first defendant ?
3. Can 1st Plaintiff claim title over the suit site in view of execution of sale deed dated 6.5.1999 by BDA in 1st defendant ?
absolute favour of 1st defendant?
The finding on Issue Nos. 1, 2 and 3 is bad for the following reasons :
It is the case of the Plaintiff No.1 that he arranged to make an application before Bangalore Development Authority in the name of the Defendant No.1 seeking for allotment of a site. It is further contention of the plaintiff No.1 that the Bengaluru Development Authority acting on the said application allotted a site in the name of the defendant No.1. The defendant No.1 is the wife of the plaintiff No.1. On the day when the site was allotted to defendant No.1, she was aged about 57 years and she was only a house wife living with plaintiff No.1. She has no income of her own. It was the plaintiff No.1 who paid the allotment charges leaved by the Bangalore Development Authority with respect to allotment of item No.1 of the suit schedule property. Pursuant to allotment Bangalore Development Authority called upon defendant No.1 to execute the lease cum sale agreement and which was executed also. Later on i.e., 06.05.1999 the Bangalore Development Authority has executed
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NC: 2023:KHC:42109 RFA No. 979 of 2008 the absolute sale deed in the name of defendant No.1. It is specific contention of plaintiff no.1 that it was he who met all the expenses to have the sale deed executed i.e., stamp duty, registration charges and incidental charges in that regard.
Unfortunately after filing of the suit the Plaintiff No.1 passed away. As such it has become for the Plaintiff No.2 Smt. Narasamma to enter the witness box in order to depose in the matter. It is to be noted here that it is a joint plaint presented by the father and daughter against the mother and another daughter. The Plaintiff No.2 entered the witness box and gave evidence as P.W1. In her evidence she has categorically stated that Item No.1 of the suit schedule property was allotted by the Bangalore Development Authority in the name of the Defendant No.1. It was the Plaintiff No.1 who was instrumental in getting allotted the said site, also deposed that the Plaintiff No.1 who paid the allotment charges to the Bangalore Development Authority, so also the money incurred for purchase of stamp paper and to meet the registration and incidental expenses. As regards the said portion of the evidence is concerned, there is no serious challenge by the other side.
In the given case even defendant No.1 was also dead when evidence commenced. The Defendant No.2 i.e., Prema Kumari did not enter the witness box. On the other hand she had given power of attorney to her husband K.B.Shankaraiah on her behalf to depose. K.B.Shankaraiah married the Defendant No.2 in the year 1976. Item No.1 of the suit schedule property was allotted by the Bangalore Development Authority in the name of the Defendant No.1 in the year 1982. In the year 1982 the Defendant No.1 and the Plaintiff
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NC: 2023:KHC:42109 RFA No. 979 of 2008 No.1 were living along with the Plaintiff No.2. The reasons as to why the Plaintiff No.2 was residing along with the Plaintiff No.1 and the Defendant No.1 was that she had lost her husband she had no other relative to take care of her, so she thought it fit to live with her parents for her safety. Accordingly she from 1974 has been staying with her parents, whereas the Defendant No.2 is concerned, she after 1976 has been living with her husband in her matrimonial home. The defendant No.2 had no knowledge as to how the site was allotted and who paid the allotment charges. The evidence of Plaintiff No.2 and the Defendant No.2 are weighed the evident of Plaintiff No.2 would out-weigh the evidence of the Defendant No.2 since the Plaintiff had full knowledge about the allotment of the site by the Bangalore Development Authority in the name of the Defendant No.1 so also as regards payment of allotment charges is concerned. The learned trial Judge did not appreciate this aspect of the matter while answering Issue Nos. 1, 2 and 3 in negative. There is no proper appreciation of evidence which was on record answering Issue Nos. 1. 2 and 3.
It is pertinent to note that Plaintiff No.2 was married to very affluent person and she was in commanding position as far as financial position is concerned. The payment of allotment charges is concerned, the Development Authority levied a sum of Rs.3467/- and called upon the Defendant No.1 to the remit same, at which point of time the Defendant No.1 had no money of her to remit the said amount. It is the Plaintiff No.1 asked the Plaintiff No.2 to arrange for the same. The Plaintiff No.2 on 21.2.1983 withdrew a sum of Rs.3,500/- from her Bank account and paid the same in the hands of the Plaintiff No.1 to remit the same towards allotment charges of Item
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NC: 2023:KHC:42109 RFA No. 979 of 2008 No.1 of the suit schedule property. In fact the entries in Ex.P23 would co-relate with Ex.P40. The learned trial Judge has lost sight of this aspect of the matter while dealing with Issue Nos. 1, 2 and 3. On the contrary the Defendant No.2 has pleaded a different story stating that her husband taking loan from his employer paid the amount. In support of the said contention she has produced Ex.D18. On a perusal of Ex.D18, which in any way does reflect borrowing of any money either on 21.2.1983 or earlier to it with regard to make payment to the Bangalore Development Authority towards allotment charges. Ex.D18 in no way supports the contention of the Defendant. No.2. Had the learned trial Judge read Ex.P.23 and Ex. P24 along with Ex.D18 definitely he would not have answered Issue Nos. 1, 2 and 3 in the negative.
The Plaintiffs by virtue of producing Ex. P23 and Ex. P40 have established the fact that Item No.1 of the suit schedule property purchased by Plaintiff No.1 benami in the name the Defendant No.1. Purchasing a property by the family in the name of member of the family is protected under section 4(3)(a) of the Benami Transaction joint Act and it is not uncommon in a Hindu Joint family purchasing a property in the name of any member of the family for the benefit of family. The learned trial Judge without proper appreciation of Section 4(3)(a) Act of Benami Transaction Act has reached a conclusion holding that Item No.1 of the suit schedule property is the exclusive property of the Defendant No.1 since the same was allotted to her by the Development Authority and in furtherence of the allotment she gifted the same in favour of the the Defendant No.2 by executing a gift deed by holding so the learned Trial Judge has committed an illegality in refusing to grant the
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NC: 2023:KHC:42109 RFA No. 979 of 2008 decree of declaration to declare that the joint family purchased item No.1 of the suit schedule property in the name of the Defendant No.1 benami and for partition. As such the finding on Issue Nos. 1, and 3 is liable to be set aside.
In a matter of benami transaction covering section 4(3)(a) what is required to be present is the source from which the purchase money came.
Further the relationship between the parties who pleads benami should be established.
These two things have been proved by the Plaintiffs by adducing evidence. The learned trial Judge on the basis of address contained on some documents has reached a conclusion that the Defendant No.2 was residing with the Defendant No.1 and with all probabilities the Defendant No.2 must have paid the allotment charges, by recording a finding answered Issue Nos. 1, 2 and 3 in the negative. The documents referred to by the learned trial Judge in that connection are Ex.D4, Ex.D5 and Ex.D6. Had the learned trial Judge referred Ex.P29, Ex. P37, Ex. P41 and Ex. P43 he would not have committed the mistake which he has committed in holding that the Defendant was residing with the Defendant No.2 at the relevant point of time.
As such the finding on Issue Nos. 1, 2 and 3requires to be held as unjust, improper and liable to be set as aside. It is to be noted here that during the life time of Sri Narasimhaiah it was he who was enjoying the suit schedule property since Smt. Narasamma i.e., the Defendant No.1 had thrown said property to the common hotch pot of joint family. At no point of time Smt.Narasamma had treated the
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NC: 2023:KHC:42109 RFA No. 979 of 2008 said property as her exclusive property. As such the finding on Issue No.1, 2, 3 is perverse illegal and which is liable to be set aside.
Issue Nos.4,5 and 6 read thus:
Does plaintiff prove he purchased revenue site referred in para 5 of plaint in the name of 1st defendant under the registered sale deed dated 21.1.1960 and rectified as per rectification deed dated 4.6.1964 out of his money contributed by 2nd Plaintiff?
Was the industrial shed on suit property constructed out of the money of the 2nd Plaintiff?
Is the registered gift deed dated 29.12.2001 executed by 1st defendant in favour of 2nd defendant valid and legal ?
The said finding one recorded by the learned trial Judge is bad for the following reasons:
Yet again the said property i.e.. Item No.2 was purchased by the Plaintiff No.1 in the name of his wife i.e., the Defendant No.1. The same was purchased in the year 1960. On the day when he purchased Item No.2 of the suit schedule property there was no partition in his family. As such he thought it fit to purchase the property in the name of his wife i.e., the Defendant No.1. The entire sale consideration was paid by the Plaintiff No.1 to purchase Item No.2 of the suit schedule property in the name of the Defendant No.1. Plaintiff No.1 after purchasing Item No.2 of suit schedule property has constructed two industrial sheds on Item No.2 of the suit schedule property. By oral arrangement one shed was given to the Defendant No.1 and another shed to the Plaintiff No.2. The shed given to the Plaintiff
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NC: 2023:KHC:42109 RFA No. 979 of 2008 No.2 is in the occupation of a tenant by name Govinda Choudary and he is paying sum of Rs.2,750/- as rent per month in the hands of Plaintiff No.2. The other shed which is in the occupation of the Defendant No.2, she has also let out the same to a tenant. It is the Defendant No.2 who is collecting the rent from the tenant of the other shed. The property was purchased in the year 1960 by the Plaintiff No.1 in the name Defendant No.1. At of which point of time Defendant No.1 had no money of her own to purchase said property. On the day when Item No.2 of the suit schedule property was purchased, the Plaintiff No.2 and the Defendant No.2 were minors. The Defendant No.1 was an a house wife. It was only the Plaintiff No.1 who was an earning member in the family. From the earnings of Plaintiff No.1, Item No.2 of the suit schedule property was purchased by him in the name of the Defendant No.1, at which point of time the Plaintiff No.1 was working at Binny Mills Ltd., and getting a salary Rs.350/- per month. Either of the party has produced any material document on record as regards the suit flow of money to purchase of Item No.2 of the schedule Property. The Plaintiffs have pleaded stating that the Plaintiff No.1 was working at Binny Mills Ltd., and that the property was purchased by him. Item No.2 was purchased for sum of Rs.1000/-. As such the Plaintiff No.1 was the only earning member in the family.
It is only out of the income Plaintiff No.1 Item No.2 of the suit schedule property was purchased in the name of the Defendant No.2. The learned Trial Judge has failed to analyse the situation while answering Issue Nos.4, 5 and 6 and has committed an illegality in answering the said issues in the negative, as such the said finding on the said issues is pervrerse, illegal and liable to be set aside.
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NC: 2023:KHC:42109 RFA No. 979 of 2008 Issue No.7 reads thus:
Whether the Plaintiffs in lawful possession of suit property on the date of the suit ?
Item Nos. 1 and 2 of the suit schedule property was purchased by the Plaintiff No.1 in the name of the Defendant No.1. The Defendant No.1 during her life time did not treat Item Nos. 1 and 2 of the suit schedule property as her exclusive property. On the other hand she threw the said properties to the common hotch pot and they are the joint family properties which were in joint possession and enjoyment of the said two properties. Only for the first time in the 2003 the Defendant No.2 set up claim to schedule property on the basis of the fraudulent gift deed by her from the Defendant No.1 to the deterimental to the interest of the Plaintiffs. As such Issue No.7 requires to be held in the affirmative i.e., they are the joint family properties of the Defendants and the Plaintiffs and both the Plaintiffs and the Defendants are in joint possession of the same.
Issue No. B reads thus:
Is alleged interference true?
The Defendant No.2 on the basis of the gift deed alleged to have been executed by the Defendant No.1 in her favour started asserting the title to the properties and made attempts to dispossess Plaintiff No.1 from the suit schedule property i.e.. just prior to the filing of the suit. As such the Issue No.8 has to be held in affirmative.
Additional Issue No.1 reads thus :
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NC: 2023:KHC:42109 RFA No. 979 of 2008 1. Whether the Plaintiff proves the gift deeds dated 29.12.2001 and 10.12.1999 and rectification deed dated 9.7.2003 made by the first defendant in favour of second defendant are not binding on the share of the plaintiffs?
In case Issue Nos.1 to 6 are held in the affirmative, naturally the finding held on Issue No.1 must be in the affirmative. The learned trial Judge having held Issue Nos. 1 to 6 in the negative was forced to hold additional Issue no.1 negative. Additional Issue No.1 depends upon the finding on Issue Nos. 1 to 6 at the hands of this Hon'ble Court.
Additional Issue No.2 reads thus:
2. Whether the Plaintiff is entitled for alternative relief of decree for partition and separate possession of the plaintiff's half share in the entire suit schedule property ?
It is submitted that the 0.S.No.3452/2003 is a joint suit filed by the father and one daughter on the one hand as the Plaintiff and mother and another daughter as the defendant on other hand. During the pendency of the suit both father and mother passed away. On their death the suit schedule property has become the joint family property of the Plaintiff No.2 and the Defendant No.2. As such the first relief i.e.. the declaration does not survived then what remains is the second relief for partition. As such the suit for partition is very much maintainable. The Plaintiff being the 2nd daughter of Narasimhaiah and Narasamme are entitled to equal share in Item Nos. 1 and 2 of the suit schedule property. As such the impugned judgment and decree is liable to be set aside.
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22. During the pendency of the suit, plaintiff No.1 and defendant No.1 died and therefore, the appeal is now between plaintiff No.2 and defendant No.2.
23. Sri.T.Seshagiri Rao, learned Counsel for the appellant, reiterating the grounds urged in the appeal memorandum vehemently contended that learned Trial Judge grossly erred in dismissing the suit of the plaintiffs.
24. He further contended that even though there is a specific issue vide issue No.6 as to the validity of the gift deed, learned Trial Judge has not recorded a proper finding on issue No.6 and held the same in a vague manner in the 'negative' resulting in miscarriage of justice.
25. He further contended that learned Trial Judge failed to note the material evidence on record proves that it is defendant No.1, who had paid the sale consideration in respect of Ex.P.10 for purchase of item No.2 of the property on 21.01.1960 and subsequently, for purchase of the site allotted by the BDA, it is plaintiff No.1, who has
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NC: 2023:KHC:42109 RFA No. 979 of 2008 paid the sale consideration inasmuch as, defendant No.1 was only a house wife. Therefore, dismissal of the suit by the trial Court is improper.
26. He further contended that learned Trial Judge failed to appreciate the legal principles governing the proof of gift deed marked at Ex.P.10 and Ex.D.9 and therefore, dismissal of the suit is improper.
27. He drew the attention of this Court to Section 68 of Indian Evidence Act, 1872 whereunder, the gift deed is a compulsory attestable document and non-examination of any attesting witnesses to prove Ex.P.10 and Ex.D.9 has resulted in miscarriage of justice.
28. Further, he drew the attention of this Court that even though P.W.1 is an attesting witness to Ex.P.10, in her entire examination-in-chief, she does not whisper a single word as to her attestation to Ex.P.10. Therefore, there is no material evidence on record to hold that gift deeds are valid and whereby, plaintiff No.2 is entitled for
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NC: 2023:KHC:42109 RFA No. 979 of 2008 half share in the suit properties and sought for allowing the appeal.
29. Sri.T.Seshagiri Rao, learned Counsel for the appellant further contended that it is plaintiff No.1, who has contributed for the sale consideration of purchase of suit item Nos.1 and 2 of the suit properties, defendant No.1 held the suit item Nos.1 and 2 of the properties as benami holder. Therefore, she was incompetent to execute the gift deeds in favour of defendant No.1 vide Ex.P.10 and Ex.D.9 and sought for allowing the appeal.
30. In support of his arguments, Sri.T.Seshagiri Rao, learned Counsel for the appellant has placed reliance on the judgement of Hon'ble Apex Court in the case of Rosammal Issetheen Ammal Fernandez Vs. Joosa Mariyan Fernandez and Others reported in (2000) 7 SCC Page 189. He drew the specific attention of this Court to paragraph Nos.7 and 9 of the said judgment wherein it is held as under:
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NC: 2023:KHC:42109 RFA No. 979 of 2008 "7. We find the High Court committed error by drawing such inference. In considering this question, whether there is any denial or not, it should not be casually considered as such finding has very important bearing on the admissibility of a document which has important bearing on the rights of both the parties. In fact the very finding of the High Court, "it is difficult to infer a specific denial of the execution of the document", shows uncertainty and vagueness in drawing such inference. In considering applicability of proviso to Section 68 the finding should be clearly specific and not vaguely or negatively drawn. It must also take into consideration the pleadings of the parties which has not been done in this case. Pleading is the first stage where a party takes up its stand in respect of facts which they plead. In the present case, we find that the relevant part of the pleading is recorded in the judgment of the trial court dated 17-8-1977 which is the judgment prior to the remand.
9. The aforesaid pleading leaves no room of doubt about denial of execution of the said documents.
The pleading records that Defendants 1 and 2 forged the signature of their father after influencing the Sub-Registrar. The denial cannot be more strong than what is recorded here. Once when there is denial made by the plaintiff, it cannot be doubted that the proviso will not be attracted. The main part of Section 68 of the Indian Evidence Act puts an obligation on the party tendering any document that unless at least one attesting witness has been called for proving such execution the same shall not be used in evidence."
31. Per contra, G.V.Chandrashekar, learned Senior Counsel representing the contesting respondent /defendant No.2 argued that the plea of benami sought to
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NC: 2023:KHC:42109 RFA No. 979 of 2008 be canvassed on behalf of the appellant cannot be countenanced in law in view of the authoritative principles of law enunciated in R. Rajagopal Reddy v. Padmini Chandrasekharan reported in (1995) 2 SCC 630, and Mithilesh Kumari v. Prem Behari Khare reported in (1989) 2 SCC 95.
32. He further contended that the material evidence on record would clearly indicate that defendant No.1 was not a mere house wife and she was indulged in agarbatti business as is admitted by P.W.1 in her cross-examination.
Therefore, there was an independent income possessed by defendant No.1 to purchase the suit properties. He further argued that in respect of item No.2, the sale deed came to be executed on 21.01.1960. The vendor of the sale deed is none other than the brother of defendant No.1. What exactly is the sale amount that has been mentioned in the sale deed marked at Ex.P.3 has been paid by defendant No.1 out of her self-earning. Therefore, the plaintiffs cannot maintain a plea that the suit items of the
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NC: 2023:KHC:42109 RFA No. 979 of 2008 properties are held in benami by defendant No.1 and plaintiff No.1, contributed for the sale consideration of suit items of the properties. As such, he sought for dismissal of the appeal.
33. He further contended that when once it is held that defendant No.1 is the absolute owner of the suit properties, the competence to execute the gift deed in favour of defendant No.2 by defendant No.1 vide Ex.P.10 and Ex.D.9 cannot be questioned by plaintiffs at all.
34. He further submitted that insofar as proof of Ex.P.10 and Ex.D.9 are concerned, though gift deed is a compulsory attestable document, law does not enjoin a responsibility on the person, who is a beneficiary under the gift deed to prove the Gift Deed by examining one of the attesting witnesses in view of the proviso of Section 68 of Indian Evidence Act, 1872.
35. Further, he contended that since defendant No.1, who is the donor of suit properties in favour of
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NC: 2023:KHC:42109 RFA No. 979 of 2008 defendant No.2 and she being a party to the suit, there was no necessity for the defendants to examine any attesting witnesses to prove Ex.P.10 and Ex.D.9. Hence, dismissal of the suit in the Court below by holding that it is defendant no.2, who is owner of the suit properties, is just and proper.
36. Sri.G.V.Chandrashekhar, further emphasized that in the plaint itself there is no denial of execution of the gift deed and what has been questioned is the competence of defendant No.1 in executing the gift deed.
Therefore, dismissal of the suit by the Court below is just and proper and sought for dismissal of the Appeal.
37. In view of the above rival contentions of the parties following points would arise for consideration.
1. Whether the plaintiffs have made out a case that plaintiff No.1 has contributed the sale consideration for purchase of suit item Nos.1 and 2 from out of his earnings?
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2. If so, whether the provisions of Benami Transactions (Prohibition) Act, 1988 would be applicable?
3. Whether the plaintiffs have established that defendant No.1 had no competence to execute the gift deeds marked at Ex.P.10 and Ex.D.9 in favour of defendant No.2?
4. Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference of this Court?
5. What order?
REG. POINT NOS.1 TO 4:
38. In the case of hand, suit item Nos.1 and 2standing in the name of defendant No.1 is not in dispute.
Suit item No.2 is purchased vide Ex.P.3 on 21.01.1960 through a registered sale deed. The vendor of the said item of the property is none other than the brother of defendant No.1.
39. Likewise, suit item No.1 is allotted in favour of defendant No.1 by the BDA. Material documents available on record would go to show that defendant No.1 applied
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NC: 2023:KHC:42109 RFA No. 979 of 2008 for allotment of the house site to the BDA and it has been allotted in her name and thereafter, lease cum sale deed came to be executed in her name and absolute sale deed also came to be executed in her name. Subsequently, revenue records have been mutated in favour of defendant No.1 and she was paying taxes to both the items of properties all along. Plaint averments would go to show that even though revenue records are standing in the name of defendant No.1, the same shall not grant any absolute right, title or interest over the suit properties in favour of defendant No.1.
40. In other words, it is the case of the plaintiffs that it is plaintiff No.1, who contributed the sale consideration for the sale deed marked at Ex.P.3 and also for the purchase of allotted site from BDA by defendant No.1. In this regard, the plaintiffs have not placed any documentary evidence on record except oral testimony of P.W.1.
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41. It is pertinent to note that in the cross -
examination of P.W.1, who is plaintiff No.2, there is a clear and categorical admission that defendant No.1 was engaged in agarbatti business. She has admitted in her cross-examination that her mother (defendant No.1) was doing the work of preparing agarbatti.
42. She further admits in her cross-examination that she was occupying a portion of item No.2 of the property as per the permission granted by her parents. In other words, P.W.1 categorically admits that she was in permissive portion of the property. In that regard, the contention of the defendants that plaintiff No.2 was only a rent collector and not an owner in the eviction proceedings initiated against the tenant by name Sri.Govind Chowdari assumes importance.
43. At any rate, either in the plaint or in the evidence of P.W.1, there is no serious dispute as to the ownership of the property in defendant No.1 as per the documents on record.
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44. Further, Sri.T.Seshagiri Rao, tried to impress upon the Court that the sale consideration as is mentioned in Ex.P.3 is Rs.1,000/- would not have been mustered by defendant No.1 from the income which has been derived by defendant No.1 from agarbatti business. Therefore, it should be construed that it is plaintiff No.1, who has contributed the sale consideration for the purchase of item No.2 of the property vide Ex.P.3.
45. However, the plaint averments would go to show that no such plea was taken by the plaintiffs in a categorical manner nor any plausible proof is placed on record. P.W.1 in her cross examination says that plaintiff No.1 was keeping Rs.1,000/- cash in his house in the treasury and she took out that cash and handed over to plaintiff No.1 for the purchase of the property by defendant No.1 from her brother. Admittedly, P.W.1 was aged about 16 years or so at the time of execution of Ex.P.3. How she came to know about the amount of Rs.1000/- being kept in treasury is a question that
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NC: 2023:KHC:42109 RFA No. 979 of 2008 remains unanswered. More so, said aspect is also not pleaded in plaint.
46. In so far as, contribution made by plaintiff No.1 for the purchase of item No.1 of the property which was allotted by BDA, no such proof is also forthcoming in the evidence of P.W.1. Therefore, what remains before the Court is the oral testimony of P.W1 which is self-
serving in establishing the fact that it is plaintiff No.1, who contributed for the sale consideration for purchase of suit item Nos.1 and 2.
47. It is under that pretext, the argument with regard to the purchase of property by defendant No.1 and defendant No.1 is a benami holder of suit items, assumes significance.
48. In order to appreciate the said arguments, it is desirable to cull out Section 3 of Benami Transactions (Prohibition) Act, 1988 which reads as under:
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NC: 2023:KHC:42109 RFA No. 979 of 2008 "3. Prohibition of benami transactions.--(1) No person shall enter into any benami transaction.
2. Omitted by s. 6, ibid. (w.e.f. 1-11-2016) (2) Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
(3) Whoever enters into any benami transaction on and after the date of commencement of the Benami Transactions (Prohibition) Amendment Act, 2016 (43 of 2016) shall, notwithstanding anything contained in sub-section (2), be punishable in accordance with the provisions contained in Chapter VII.
5. Omitted by s. 6, ibid. (w.e.f. 1-11-2016)"
49. Law on the point is no longer res-integra. The Hon'ble Apex Court in the case of Rajagopal Reddy Vs. Padmini Chandrasekharan reported in 1995 SCC (2) 630 has held as under :
"11. Before we deal with these six considerations which weighed with the Division Bench for taking the view that Section 4 will apply retrospectively in the sense that it will get telescoped into all pending proceedings, howsoever earlier they might have been filed, if they were pending at different stages in the hierarchy of the proceedings even up to this Court, when Section 4 came into operation, it would be apposite to recapitulate the salient feature of the Act. As seen earlier, the preamble of the Act itself states that it is an Act to prohibit benami transactions and the right to recover
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NC: 2023:KHC:42109 RFA No. 979 of 2008 property held benami, for matters connected therewith or incidental thereto. Thus it was enacted to efface the then existing right of the real owners of properties held by others benami. Such an Act was not given any retrospective effect by the legislature. Even when we come to Section 4, it is easy to visualise that sub-section (1) of Section 4 states that 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 shall lie by or on behalf of a person claiming to be the real owner of such property. As per Section 4(1) no such suit shall thenceforth lie to recover the possession of the property held benami by the defendant. Plaintiff's right to that effect is sought to be taken away and any suit to enforce such a right after coming into operation of Section 4(1) that is 19-5-1988, shall not lie. The legislature in its wisdom has nowhere provided in Section 4(1) that no such suit, claim or action pending on the date when Section 4 came into force shall not be proceeded with and shall stand abated. On the contrary, clear legislative intention is seen from the words "no such claim, suit or action shall lie", meaning thereby no such suit, claim or action shall be permitted to be filed or entertained or admitted to the portals of any court for seeking such a relief after coming into force of Section 4(1). In Collins English Dictionary, 1979 Edition as reprinted subsequently, the word 'lie' has been defined in connection with suits and proceedings. At page 848 of the Dictionary while dealing with Topic No. 9 under the definition of term 'lie' it is stated as under:
"For an action, claim appeal etc. to subsist; be maintainable or admissible."
The word 'lie' in connection with the suit, claim or action is not defined by the Act. If we go by the aforesaid dictionary meaning it would mean that such suit, claim or action to get any
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NC: 2023:KHC:42109 RFA No. 979 of 2008 property declared benami will not be admitted on behalf of such plaintiff or applicant against the defendant concerned in whose name the property is held on and from the date on which this prohibition against entertaining of such suits comes into force. With respect, the view taken that Section 4(1) would apply even to such pending suits which were already filed and entertained prior to the date when the section came into force and which has the effect of destroying the then existing right of plaintiff in connection with the suit property cannot be sustained in the face of the clear language of Section 4(1). It has to be visualised that the legislature in its wisdom has not expressly made Section 4 retrospective. Then to imply by necessary implication that Section 4 would have retrospective effect and would cover pending litigations filed prior to coming into force of the section would amount to taking a view which would run counter to the legislative scheme and intent projected by various provisions of the Act to which we have referred earlier. It is, however, true as held by the Division Bench that on the express language of Section 4(1) any right inhering in the real owner in respect of any property held benami would get effaced once Section 4(1) operated, even if such transaction had been entered into prior to the coming into operation of Section 4(1), and henceafter Section 4(1) applied no suit can lie in respect to such a past benami transaction. To that extent the section may be retroactive. To highlight this aspect we may take an illustration. If a benami transaction has taken place in 1980 and a suit is filed in June 1988 by the plaintiff claiming that he is the real owner of the property and defendant is merely a benamidar and the consideration has flown from him, then such a suit would not lie on account of the provisions of Section 4(1). Bar against filing, entertaining and admission of
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NC: 2023:KHC:42109 RFA No. 979 of 2008 such suits would have become operative by June 1988 and to that extent Section 4(1) would take in its sweep even past benami transactions which are sought to be litigated upon after coming into force of the prohibitory provision of Section 4(1); but that is the only effect of the retroactivity of Section 4(1) and nothing more than that. From the conclusion that Section 4(1) shall apply even to past benami transactions to the aforesaid extent, the next step taken by the Division Bench that therefore, the then existing rights got destroyed and even though suits by real owners were filed prior to coming into operation of Section 4(1) they would not survive, does not logically follow.
12. So far as Section 4(2) is concerned, all that is provided is that if a suit is filed by a plaintiff who claims to be the owner of the property under the document in his favour and holds the property in his name, once Section 4(2) applies, no defence will be permitted or allowed in any such suit, claim or action by or on behalf of a person claiming to be the real owner of such property held benami. The disallowing of such a defence which earlier was available, itself suggests that a new liability or restriction is imposed by Section 4(2) on a pre-existing right of the defendant. Such a provision also cannot be said to be retrospective or retroactive by necessary implication. It is also pertinent to note that Section 4(2) does not expressly seek to apply retrospectively. So far as such a suit which is covered by the sweep of Section 4(2) is concerned, the prohibition of Section 4(1) cannot apply to it as it is not a claim or action filed by the plaintiff to enforce right in respect of any property held benami. On the contrary, it is a suit, claim or action flowing from the sale deed or title deed in the name of the plaintiff. Even though such a suit might have been filed prior to
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NC: 2023:KHC:42109 RFA No. 979 of 2008 19-5-1988, if before the stage of filing of defence by the real owner is reached, Section 4(2) becomes operative from 19-5-1988, then such a defence, as laid down by Section 4(2) will not be allowed to such a defendant. However, that would not mean that Section 4(1) and Section 4(2) only on that score can be treated to be impliedly retrospective so as to cover all the pending litigations in connection with enforcement of such rights of real owners who are parties to benami transactions entered into prior to the coming into operation of the Act and specially Section 4 thereof. It is also pertinent to note that Section 4(2) enjoins that no such defence "shall be allowed" in any claim, suit or action by or on behalf of a person claiming to be the real owner of such property. That is to say no such defence shall be allowed for the first time after coming into operation of Section 4(2). If such a defence is already allowed in a pending suit prior to the coming into operation of Section 4(2), enabling an issue to be raised on such a defence, then the Court is bound to decide the issue arising from such an already allowed defence as at the relevant time when such defence was allowed Section 4(2) was out of the picture. Section 4(2) nowhere uses the words:
"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 to be raised or continued to be raised in any suit."
With respect, it was wrongly assumed by the Division Bench that such an already allowed defence in a pending suit would also get destroyed after coming into operation of Section 4(2). We may at this stage refer to one difficulty projected by learned advocate for the respondents in his written submissions, on the applicability of Section 4(2). These submissions read as under:
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NC: 2023:KHC:42109 RFA No. 979 of 2008 "Section 4(1) places a bar on a plaintiff pleading 'benami', while Section 4(2) places a bar on a defendant pleading 'benami', after the coming into force of the Act. In this context, it would be anomalous if the bar in Section 4 is not applicable if a suit pleading 'benami' is already filed prior to the prescribed date, and it is treated as applicable only to suit which he filed thereafter. It would have the effect of classifying the so-called 'real' owners into two classes-- those who stand in the position of plaintiffs and those who stand in the position of defendants. This may be clarified by means of an illustration. A and Bare 'real' owners who have both purchased properties in say 1970, in the names of C and D respectively who are ostensible owners viz.
benamidars. A files a suit in February 1988 i.e. before the coming into force of the Act against C for a declaration of his title saying that C is actually holding it as his benamidar. According to the petitioner's argument, such a plea would be open to A even after coming into force of the Act, since the suit has already been laid. On the other hand, if D files a suit against B at the same for declaration and injunction, claiming himself to be the owner but B's opportunity to file a written statement comes in say November 1988 when the Act has already come into force, he in his written statement cannot plead that D is a benamidar and that he, B is the real owner. Thus A and B, both 'real' owners, would stand on a different footing, depending upon whether they would stand in the position of plaintiff or defendant. It is respectfully submitted that such a differential treatment would not be rational or logical."
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(b) Again, in the case of Mithilesh Kumari Vs. Prem Behari Khare reported in (1989) 2 SCC 95 Hon'ble Apex Court has held as under:
"22. As defined in Section 2(a) of the Act "
'benami transaction' means any transaction in which property is transferred to one person for a consideration paid or provided by another person". A transaction must, therefore, be benami irrespective of its date or duration. Section 3, subject to the exceptions, states that no person shall enter into any benami transaction. This section obviously cannot have retrospective operation. However, Section 4 clearly provides that 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 real owner of such property. This naturally relates to past transactions as well. The expression "any property held benami" is not limited to any particular time, date or duration. Once the property is found to have been held benami, no suit, claim or action to enforce any right in respect thereof shall lie. Similarly, sub- section (2) of Section 4 nullifies the defences 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 in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. It means that once a property is found to have been held benami, the real owner is bereft of any defence against the person in whose name the property is held or any other person. In other words in its sweep Section 4 envisages past benami transactions also within
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NC: 2023:KHC:42109 RFA No. 979 of 2008 its retroactivity. In this sense the Act is both a penal and a disqualifying statute. In case of a qualifying or disqualifying statute it may be necessarily retroactive. For example when a Law of Representation declares that all who have attained 18 years shall be eligible to vote, those who attained 18 years in the past would be as much eligible as those who attained that age at the moment of the law coming into force. When an Act is declaratory in nature the presumption against retrospectivity is not applicable. Acts of this kind only declare. A statute in effect declaring the benami transactions to be unenforceable belongs to this type. The presumption against taking away vested right will not apply in this case inasmuch as under law it is the benamidar in whose name the property stands, and law only enabled the real owner to recover the property from him which right has now been ceased by the Act. In one sense there was a right to recover or resist in the real owner against the benamidar. Ubi jus ibi remedium. Where there is a right, there is a remedy. Where the remedy is barred, the right is rendered unenforceable. In this sense it is a disabling statute. All the real owners are equally affected by the disability provision irrespective of the time of creation of the right. A right is a legally protected interest. The real owner's right was hitherto protected and the Act has resulted in removal of that protection."
50. Keeping in background the principles of law enunciates in aforesaid decisions. In the case on hand, Section 3 of Benami Transactions (Prohibition) Act, 1988 has no application for more than one reason.
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51. Firstly, there is no legal proof to establish that it is defendant No.1, who contributed from out of his earnings for the sale consideration of item Nos.1 and 2 of the suit properties.
52. Secondly, even assuming for a moment that sale consideration is contributed by the plaintiff, in view of the legal principles enunciated in Rajagopal Reddy Vs. Padmini Chandrasekharan reported in 1995 SCC (2) 630 and Mithilesh Kumari Vs. Prem Behari Khare sreported in (1989) 2 SCC 95 as referred to supra, plaintiff No.1 and defendant No.1 having enjoyed the fiduciary relationship being the husband and wife, the proviso to Section 3 would apply. Therefore, provisions of Benami Transactions (Prohibition) Act, 1988 would not be made applicable to the facts and circumstances of the case.
53. Thirdly, the material evidence on record is hardly sufficient for establishing that plaintiff No.1 has
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NC: 2023:KHC:42109 RFA No. 979 of 2008 contributed for the purchase of suit item Nos.1 and 2 in the name of defendant No.1. On the contrary, documentary evidence placed on record by defendant No.1 which are the registered documents, sufficiently establish that it is defendant No.1, who is the absolute owner of the suit properties.
54. Resultantly, defendant No.1 had the capacity and competence to execute Ex.P.10 and Ex.D.9 in favour of defendant No.2.
55. No doubt, issue No.6 as referred to supra, raised by the trial Court has been dealt in extenso in the impugned judgment. The learned Trial Judge has not given any possible and plausible reasons for disbelieving the arguments of the plaintiffs insofar as the competence of defendant No.1 in executing the gift deeds vide Ex.P.10 and Ex.D.9 and proof of gift deeds in respect of the suit properties.
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56. In this regard, Sri.T.Seshagiri Rao, placed reliance on Section 68 of Indian Evidence Act, 1872 which reads as under:
"68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: 1[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
57. On close reading of Section 68 of Indian Evidence Act, 1872 especially the proviso, it is crystal clear that though a gift deed is a compulsorily attestable document, it is not imperative for a person to establish the proof of the gift deed by compulsorily examining one of the attesting witnesses. The reason is sound and obvious.
In case of a gift, there is a transfer of property inter vivos.
But in case of a Will, as the proviso itself says that it is very much necessary for establishing the proof of a Will,
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NC: 2023:KHC:42109 RFA No. 979 of 2008 propounder has to examine atleast one of the attesting witnesses.
58. In case of a Will, the proof of that document will be questioned before the Court when the executor is not alive. But in case of a gift deed, executor(donor) is very much available when the transfer of rights takes place.
59. In the case on hand, the executor of the gift deed viz., defendant No.1 is a party to the suit and she has not denied the execution of Ex.P.10 or Ex.D.9.
Therefore, absolutely there was no necessity for the trial Court to even frame an issue as per issue No.6.
Nevertheless, in view of the contentions taken by the plaintiffs questioning the competence of defendant No.1 in executing the gift deed in favour of defendant No.2, issue No.6 has been raised. Of course, issue No.6 is not happily worded nor properly raised. But the reasons best known to the parties, the parties did not seek for reframing of issue No.6 by resorting to provisions of Order XIV Rule 5
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NC: 2023:KHC:42109 RFA No. 979 of 2008 of CPC nor the trial Court reframed the issue No.6 at the time of passing the judgment by exercising the power under Order XIV Rule 5 of CPC.
60. Even assuming that issue No.6 is to be reframed as "whether the defendant No.1 had the competence to execute the gift deed vide Ex.P.10 and Ex.D.9", the aforesaid discussion in holding that the suit properties are the absolute properties of defendant No.1, the competence automatically vests in defendant No.1 in executing the gift deed vide Ex.P.10 and Ex.D.9 in favour of defendant No.2.
61. Further, what is the requirement of proof of a gift deed is also no longer res-integra. The Hon'ble Apex Court reported in the case of Brij Raj Singh v. Sewak Ram reported in (1999) 4 SCC 331 has held as under:
"28. As regards the cases cited on the issue of attestation, we find that Roda Framroze Mody v. Kanta Varjivandas Saraiya [AIR 1946 Bom 12 : 47 Bom LR 709] and Vishnu Ramkrishna v. Nathu Vithal [AIR 1949 Bom 266 :
51 Bom LR 245] relate to a will and as such may not be apposite to the case on hand concerning a
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NC: 2023:KHC:42109 RFA No. 979 of 2008 gift deed. In Sarkar Barnard & Co. v. Alok Manjary Kuari [AIR 1925 PC 89] , Abinash Chandra Bidyanidhi Bhattacharjee v. Dasarath Malo [AIR 1929 Cal 123 : 32 CWN 1228] and Sundrabai Sonba Tendulkar v. Ramabai Jayaram [AIR 1947 Bom 396 : 49 Bom LR 298] the question of failure to raise a specific denial regarding execution/attestation and the consequences thereof did not arise and, therefore, those cases are not quite relevant. In N. Ramaswamy Padayachi v. C. Ramaswami Padayachi [AIR 1975 Mad 88] a factually specific denial was raised and in that context the judgment was delivered on the scope of Section 123 of the Transfer of Property Act. In Balappa Tippanna v. Asangappa Mallappa [AIR 1960 Mys 234] the Court held as follows: (AIR Headnote) "The net effect of Section 68 is that if the execution of a document of gift is specifically denied, then an attesting witness must be called to prove it. If, however, such execution is not specifically denied, then it would not be necessary to call an attesting witness to prove the same. But the document all the same will have to be proved. The effect of the proviso is that the due execution and attestation of the gift deed will have to be proved, although it may be proved by calling a person other than an attesting witness."
29. Here again there is no quarrel with the proposition set out above."
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(b) Again, In the case of Surendra Kumar v.
Nathulal reported in (2001) 5 SCC 46, Hon'ble Apex Court has held as under:
"Section 123 of the Transfer of Property Act, 1882 provides:
"123. Transfer how effected.--For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses."
In the present case there exists a registered deed of gift signed by the donor and attested by two witnesses. Therefore, the requirement of the law as incorporated in the section is satisfied. Section 68 of the Indian Evidence Act, 1872 makes a provision regarding proof of execution of a document required by law to be attested. Therein it is laid down that:
"If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence:"
The proviso to the section, which is relevant for the present purpose, reads:
"Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of
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NC: 2023:KHC:42109 RFA No. 979 of 2008 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
(emphasis supplied) On a plain reading of the proviso, it is manifest that a registered deed of gift can be received in evidence without examining one of the attestors if the person who has executed the deed of gift has not specifically denied its execution. In the present case, the donor Chand Bai has specifically admitted execution of the deed of gift in favour of the appellant. Therefore, the lower appellate court was in error in holding that the deed of gift has not been duly proved since one of the attestors has not been examined as witness. Indeed the certified copy of the registered deed of gift was produced in the trial court along with an application filed by the plaintiff in the previous suit, Suit No. 69 of 1970 (4 of 1976) that the same may be called for. The trial court, being satisfied about the reason for non- production of the original document, marked the certified copy of the deed of gift as Exhibit 3."
62. Applying the principles of law enunciated in the aforesaid decisions, to the facts of the instant case one can safely infer that, the contentions taken by the appellant that non-examination of one of the attesting witnesses to Ex.P.10 and Ex.D.9 has rendered the gift deed as invalid, cannot be countenanced in law.
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63. Further, it is pertinent to note that D.W.1 is one of the attesting witnesses. No doubt, he has not whispered in his examination-in-chief about the fact of attesting Ex.P.10. But, in view of discussion made supra, as there is no legal requirement to compulsorily examine one of the attesting witnesses for the gift deed, in view of the fact that defendant No.1, who is the donor is party to the suit and also taking note of the fact that proviso to Section 68 of Indian Evidence Act, 1872, the said argument of the appellant that the trial Court erred in holding that defendant No.1 was competent enough to gift the suit properties in favour defendant No.2, cannot be countenanced in law.
64. These aspects of the matter have been rightly appreciated by the learned Trial Judge in the impugned judgment, though not, in so many words or by assigning the proper reasons especially while answering issue No.6.
65. Since, this Court has now clarified the position of law with regard to proof of the gift deed marked at
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NC: 2023:KHC:42109 RFA No. 979 of 2008 Ex.P.10 and Ex.D.9, the said short coming in the finding recorded on issue No.6 by the trial Court needs no interference in the considered opinion of this Court.
66. In view of the foregoing discussions, this Court does not find merit in any one of the grounds urged on behalf of the appellant so as to hold points Nos.1 to 4 in favour of the appellant. Resultantly, issue Nos.1 to 4 are answered in negative.
REG. POINT NO.5:
67. In view of the findings of this Court on point Nos.1 and 4 as above, following:
ORDER
(i) Appeal is meritless and hereby dismissed.
(ii) No order as to costs.
Sd/-
JUDGE KAV List No.: 1 Sl No.: 32 CT:SNN