Andhra HC (Pre-Telangana)
Anam Lakshmamma (Died) By R. Mangamma vs Anam Venkatarama Reddy And Ors. on 11 July, 1991
Equivalent citations: 1992(1)ALT93
JUDGMENT Jagannadha Rao, J.
1. The 5th defendant has filed this Letters Patent Appeal as the legal representatives of the 3rd defendant in O.S.No. 48/1974 on the file of Sub-Court, Kavali. The Letters Patent Appeal is filed against the concurrent judgments of the learned Single Judge and of the trial Judge by which a 1/3rd share has been granted to the respondents-plaintiffs 1 to 3 in the above said suit.
2. The brief facts of the case are as follows:- The 2nd plaintiff is one Ramanamma and she is the widowed daughter-in-law of Anam Lakshmamma (D-3). She has filed the present suit along with her son and daughter who are impleaded as plaintiffs 1 and 3. She has claimed 1/3rd share in/the plaint schedule properties treating them as joint family properties. Lakshmamma (D-3) was the daughter of one Kondareddy. Lakshmamma's husband was Rami Reddy. According to the plaintiffs, Rami Reddy died some time in 1940 while according to the defendants 1, 2, 5 and others, Rami Reddy died some time in 1950. Lakshmamma and Rami Reddy have one daughter Mangamma (D-5) and three sons Venka Reddy (husband of 2nd plaintiff and father of plaintiffs 1 and 3) who died in 1974 and Ramana Reddy (D-1) and Chenchurami Reddy (D-3). The 10th defendant is the husband of Mangamma (D-5) and defendants 4 and 9 are their daughters while defendants 6 to 8 are their sons. In the suit, the 2nd plaintiff claimed that her father-in-law late Rami Reddy was an illatom son-in-law of Konda Reddy but that contention has not been accepted by the trial Court and/by the learned single Judge. Therefore, it is not necessary to go into the said question. The plaintiff's claim has to be considered on the basis that the claim is for a share in the Joint family properties in respect of the joint family of late Rami Reddy and his three sons Venka Reddy, the plaintiffs claiming the 1/3rd share of Venka Reddy.
3. In this appeal, we are mainly concerned with 3 acres in item No. 6, item 7 and as to the question whether the plaintiffs are entitled to a 1/3rd share as contended by them or to a 1/4th share as contended by the other defendants.
4. So far as the 3 acres in item No. 6 of the plaint A Schedule are concerned, it is the case of the plaintiffs in the plaint that the said item was purchased by sale of 8 acres of joint family property in Brahmanakraka village under Ex. A-1 dated 15-3-1968 for Rs. 25,500/-. that the purchase of item No. 6 is under Ex. A-2 dated 15-5-1968 for Rs. 19,000/-. The plaintiffs also stated in para 9 that after the death of Konda Reddy the plaintiff's father-in-law Rami Reddy became entitled to the entire properties of Konda Reddy, that some land at Brahmanakraka was sold and with the sale proceeds, item No. 6 was purchased but that the sale deed for an extent of 3 acres was taken 'benami' in the name of the 5th defendant, mother of defendants 1 and 2 and late Venka Reddy. It is then stated that the 3rd defendant Lakshmamma had no right or interest in the said property, that she has no capacity to purchase the same and that the entire A schedule property is the joint family property of defendants 1 and 2 and the deceased Venka Reddy. In the written statements it was stated that the land at Brahmanakraka was sold for Rs. 23,000/- and not for Rs. 25,000/- that item No. 6 was jointly purchased by defendants 1, 2 and late Venka Reddy and the 3rd defendant and that the 3 acres out of the said item belong to the 3rd defendant. It is again stated in paragraph 9 of the written statement that the 3rd defendant was actually entitled to 3 acres in item No. 6 and that it is false to say that the 3rd defendant had no capacity to purchase the said property. It is stated that she contributed the entire consideration in relation to the said 3 acres.
5. The trial court as well as the learned single Judge came to the conclusion that the 3rd defendant did not have the capacity to purchase the 3 acres from her own funds and that the purchase was made under Ex. A-2 with the help of the funds obtained by the sale of land under Ex. A-1 at Brahmanakraka village. Before the learned single Judge, a contention was raised that inasmuch as the allegation in paragraph 9 of the plaint was that the 3 acres in item 6 was purchased 'benami' in the name of 3rd defendant Lakshmamma, the said property cannot be recovered in view of the provisions of Section 3 of the Benami Transactions (Prohibition) Act, 1988 which have been held to be retrospective by the Supreme Court in Mithilesh Kumar v. Prem Behari Khare, . In this appeal, it is again contended for the 5th defendant by the learned counsel Sri Suresh Kumar that if Venkareddy could not plead benami as against Lakshmamma, Venka Reddy's successors-in-interest viz., the plaintiffs could not also make any such claimagainst Lakshmamma for recovery of the property and that they could not also make such a claim against Lakshmamma's successor-in-interest, the 5th defendant. It may here be noted that Lakshmamma died pending the proceedings and the 5th defendant is claiming her property under a will executed by Lakshamamma in her favour.
6. Therefore, the first point arising in this appeal is as to whether the plaintiffs can recover their share in the 3 acres in item 6 of the plaint A schedule.
7. The second question that has been urged by the learned counsel for the appellants is that item No. 7 of the plaint A schedule was purchased by late Konda Reddy under Ex. B-4 dated 10-7-1901 along with other properties and that the said property must be treated to have devolved on Lakshmamma, the 3rd defendant and that on that basis the 5th defendant, as her legatee would be entitled to the property and that the plaintiffs would have no claim. The trial Court and the learned single Judge have relied upon Ex. A-3 dated 16-9-1973 under which Venka Reddy was allowed to treat item 7 as joint family property under which he settled the same on the 5th defendant and her children. The said settlement deed has been held to be void inasmuch as the co-parceners could not have executed a settlement deed of joint family properties in favour of a third party. The plaintiffs, therefore, rely on the recitals in Ex. A-3 for purpose of showing that the property was treated as joint family property by Venka Reddy and his brothers and their father late Ramana Reddy. In this appeal, it is again contended that item No. 7 cannot be treated as joint family property. This is the second point arising in the appeal.
8. The 3rd point that is raised by the learned counsel for the appellants relates to the quantum of share that the plaintiffs could claim in the suit. As already stated, the trial Court as well as the learned single Judge have granted a 1/3rd share in the suit properties on the basis that Lakshmamma was not entitled to any share in the agricultural properties of the joint family as her husband Rami Reddy died some time in 1940 well before 26-11-1946 from which date alone the Madras Hindu Womens Rights to Property (Extension to Agricultural Land) Act, 1947 came into effect and on the basis that late Rami Reddy's properties could be divided only into 3 shares among the three sons. The third point therefore that is urged in this appeal is that the trial Court as well as the learned single Judge were wrong in treating the death of Rami Reddy as having occurred some-time in 1940 and that the evidence shows that he died in 1950 by which time the amending Act came into force and therefore Lakshmamma would be entitled to a 1/4th share which would go to the 5th defendant under Lakshmamma's will. This will be the third point to be decided in this appeal.
9. Before adverting to the first point, we shall dispose of 2nd and 3rd points. So far as the 2nd point is concerned we are in entire agreement with the trial Court and the learned single Judge that Ex. A-3 is sufficient evidence to show that item 7 was treated as joint family property and was never treated as the property of Konda Reddy which had devolved on Lakshamamma exclusively. The Courts below were right in not relying upon Ex. B-4 under which Konda Reddy purchased the property originally. No material has been produced by the defendants to establish that after the death of Konda Reddy, item 7 was being treated as the separte property of Lakshmamma. On the other hand, Ex. A-3 and the other evidence in the case would reveal that the said item was being continuously treated as joint family property. Therefore, the plaintiffs will be entitled to a share in item No. 7. Coming to the 3rd point urged by the learned counsel for the appellants it must be stated that the plaintiffs came forward with a specific plea that late Rami Reddy died 35 years ago prior to the plaint (vide para 5 of the plaint). There is no specific denial of the said averment in the written statement but a positive averment was made that the said Rami Reddy died in 1950 (para 12 of the written statement). The learned single Judge proceeded on the basis that the averments in the written statement could not be treated as amounting to a specific denial of the plaint averments. We do not propose to go into that part of the reasoning but we are of the view that the said finding can be supported on an alternative basis. In the cross-examination, Lakshmamma as D.W.1 stated that her husband Remi Reddy died 10 years before the marriage of her son Venka Reddy with the 2nd plaintiff. It will be noticed that the 1st plaintiff's age is given in the plaint as 22 years. The plaint was filed in 1974. That could mean that the 1st plaintiff was born in or about 1952. It could therefore be reasonably presumed that the marriage of Venka Reddy with the 2nd plaintiff must have been performed not later than 1952. Deducting 10 years therefrom the death of Rami Reddy could not be later than 1942. This is the highest that could be said in favour of the defendants. Therefore, Rami Reddy must have died long before 1946 when the Madras Amendment came into force and therefore Lakshmamma would not get a share in the agricultural properties and the properties of Rami Reddy would be divisible only in three shares. Therefore, we affirm the finding of the learned single Judge on the third point though on a different line of reasoning.
10. Coming to the first point, it is true that the allegations in paragraph 9 of the plaint is that 3 acres of land in item No. 6 were taken benami in the name of the 2nd plaintiff's mother-in-law Lakshmamma (D-3). Basing on this allegation it is contended for the appellants that in view of Section 3 of the Benami Transactions (Prohibition) Act, 1988, neither Venka Reddy nor his successors-in-interest could recover the property from Lakshmamma or her heirs pleading that Lakshmamma held the property benami for Venka Reddy and his brothers. The learned counsel for the plaintiffs-respondents has, however, contended that by the word 'benami' used in the plaint, the plaintiffs only meant that Lakshmamma was a nominal owner and not that she was a benamidar. In fact, the learned single Judge has accepted that the word 'benami', in the particular context of the plaint, must be understood as a plea of the nominal character of the title of Lakshmamma. The question therefore arises whether in the entire context of the facts of the case, the plaintiffs really meant that Lakshmamma was a benamidar for 3 acres in item 6 of the plaint A schedule.
11. That parties some time describe a sham and nominal transaction as a benami transaction has been judicially recognised by the Supreme Court in more than one case. In Meenakshi Mills Ltd. v. I.T.Commissioner, , Venkatarama Ayyar, J., speaking for the Court observed thus:
"In this connection, it is necessary to note that the word 'benami' is used to denote two classes of transactions which differ from each other in their legal character and incidents. In one sense, it signifies a transaction which is real, as for example, when A sells properties to B but the sale deed mentions X as the purchaser. Here the sale itself is genuine, but the real purchaser is B, X being his benamidar. This is the class of transactions which is usually termed as benami. But the word 'benami' is also occasionally used, perhaps not quite accurately, to refer to a sham transaction, as for example, when A purports to sell his property to B without intending that his title should cease or pass to B. The fundamental difference between these two classes of transactions is that whereas in the former there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none such, the transferor continuing to retain the title notwithstanding the execution of the transfer deed. It is only in the former class of cases that it would be necessary, when a dispute arises as to whether the person named in the deed is the real transferee or B, to enquire into the question as to who paid the consideration for the transfer, X or B. But in the latter class of cases, when the question is whether the transfer is genuine or sham, the point for decision would be, not who paid the consideration but whether any consideration was paid"
Again in Bhim Singh v. Kan Singh, the Supreme Court observed thus:
"Two kinds of benami transactions are generally recognised in India. Where a person buys a property with his own money but in the name of another person without any intention to benefit such other person, the transaction is called benami. In that case, the transferee holds the property for the benefit of the person who has contributed the purchase money, and he is the real owner. The second case which is loosely termed as a benami transaction is a case where a person who is the owner of the property executes a conveyance in favour of another without the intention of transferring the title to the property thereunder. In this case, the transferor continues to be the real owner. The difference between the two kinds of benami transactions referred to above lies in the fact that whereas in the former case there is an operative transfer from the transferor to the transferee though the transferee holds the property for the benefit of the person who has contributed the purchase money, in the latter case, there is no operative transfer at all and the title rests with the transferor notwithstanding the execution of the conveyance. One common feature, however, in both these cases is that the real title is divorced from the ostensible title and they are vested in different persons. The question whether a transaction is a benami transaction or not mainly depends upon the intention of the person who has contributed the purchase money in the former case and upon the intention of the person who has executed the conveyance in the latter case. The principle underlying the former case is also statutorily recognised in Section 82 of the Indian Trusts Act, 1882, which provides that where property is transferred to one person for a consideration paid or provided by another person and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee, the transferee must hold the property for the benefit of the person paying or providing the consideration."
12. From the aforesaid extracts, it is clear that the word 'benami' is also loosely used to describe a sham and nominal transaction. The question whether the parties meant to take a plea of benami or to take a plea of the transaction being sham or nominal is to be decided on the overall pleadings and the entire facts and circumstances of the case. Further, it some times happens that parties make certain statements for a particular purpose or by way of ignorance and in such cases the court has to look into the real relationship of the parties in respect of the said properties. The Privy Council pointed out in Venkatapathi v. Venkata Narasimha, A.I.R. 1936 P.C. 264 that it some times happens that persons made statements to serve their purpose or proceed upon ignorance of the true position. It is not their statements but their relations with the property that is to be taken into consideration in determining the issue. The above said observations were followed by the Supreme Court in Rukhmabai v. Lakshminarayana, .
13. Bearing the above said principles in mind, we shall now examine the pleadings of the parties. In paragraph 7 of the plaint, the plaintiffs clearly stated that the joint family of defendants 1 and 2 and Venka Reddy and the plaintiffs own and possess the property in plaint A and B schedules. They further stated that 8 acres at Brahmanakraka village out of the said property was sold for Rs. 25,500/- and an extent of 12 acres, i.e., item 6, was purchased at Munganuru for Rs. 19,000/-. They also stated in paragraph 9 of the plaint that the entire plaint A schedule property including item 6 is the joint family property of defendants 1 and 2 and late Venka Reddy and that the 3rd defendant had no capacity to purchase 3 acres in item 6. The entire consideration came from the sale proceeds of the joint family property at Brahmanakraka village. The plaintiffs also say that 3 acres in item 6 was taken "benami" in the name of Lakshmamma, the 3rd defendant. We shall also mention the defence of the defendants so far as item 6 is concerned. They state in the written statement that item 6 was jointly purchased by defendants 1 and 2 and late Venka Reddy but they also say that the 3rd defendant was a purchaser of 3 acres therein and they specifically say in para 9 of the written statement that the 3rd defendant contributed the entire consideration in relation to the said 3 acres. As already stated, the defendants failed miserably to establish that the 3rd defendant Lakshmamma contributed anything for the purchase of the 3 acres. If, therefore, that part of the defence goes, the position would be that item 6 of the plaint A schedule is purchased with joint family funds and therefore, would partake, of the character of joint family property. The written statement does not mention that there was any motive in purchasing 3 acres benami in the name of Lakshmamma. Further, normally a plea of benami would arise in a case where a person purchased the entire property in the name of a benamidar but here the property is purchased in the name of the three sons and their mother Lakshmamma and it is from that fact that the defendants-sons went to support a plea of benami. In our view, the allegation in paragraph 9 of the plaint has to be understood as a plea that the mother's name was "nominally" included in Ex.A-2 transaction in 1968 and that the plaintiffs really intended to say that the sons who are the purchasers ever contemplated that Lakshmamma would be the benamidar for her sons. We are, therefore, in entire agreement with the view taken by the learned single Judge that by the word "benami" used in para 9 of the plaint, the plaintiffs only intended to raise a plea of the "nominal" inclusion of Lakshmamma's name in the document as a purchaser. In that view of the matter, Section 4 of the Benami Transactions Prohibition Act, 1988 does not come in the way of the plaintiffs claiming 1/3rd share in 3 acres of item 6 of the plaint A schedule.
14. Inasmuch as Lakshmamma was entitled to a share in Venka Reddy's share of the joint family properties, the learned single Judge has made a correction in the shares of plaintiffs 1 to 3. The said modification made by the learned single Judge will hold good.
15. We, therefore, confirm the findings of the learned single Judge in regard to the first point.
16. The appeal therefore fails and is dismissed but in the circumstances, without costs.