Madras High Court
Kannammal vs Balaraman And Govindaraman on 19 February, 2002
Equivalent citations: (2002)2MLJ110
JUDGMENT K. Govindarajan, J.
1. The unsuccessful plaintiff before the lower Appellate Court has filed the above Appeal.
2. The plaintiff filed a suit for declaration and for injunction with respect to the suit property. According to the plaintiff under Ex.A.1 dated 11-10-1949 her husband Marimuthu purchased the property in the name of one Kannammal, the first wife of Marimuthu. The said property solely belongs to late Marimuthu and the same was purchased benami in the name of his first wife Kannammal. Subsequently, the said property was settled by Marimuthu under Ex.A.12 dated 05-09-1972 giving her life interest and her children were given the absolute right in the said property.
3. The defendants who are the children of Kannammal, the first wife of Marimuthu, contested the suit contending inter-alia that the said property was purchased by their mother out of her own funds and in alternative they have come forward with the plea that even if it is held that it is purchased by Marimuthu in the name of their mother, it was intended only for the benefit of Kannammal and so Marimuthu did not have any right in the suit property so as to enable him to execute the Settlement Deed. The defendants have also come forward with the plea that they have been in possession of the property. 4. The trial Court while rejecting the case of the defendants that the property was purchased by their mother from out of her own funds held that Marimuthu purchased from out of his funds benami in the name of his first wife Kannammal. It is also found that the plaintiff was in possession of the property. On the basis of the said finding decreed the suit. So the defendants filed the Appeal in A.S. No. 56 of 1991 on the file of Sub-Court, Chengleput. The learned Subordinate Judge reversed the judgment and decree of the trial Court holding that since the Benami Transaction (Prohibition) Act, 1988, applies to the facts of the case, the plaintiff cannot sustain the case against the interest of the defendants. It is also held that the plaintiff has not established that the property was purchased benami in the name of Kannammal, for the benefit of the family only. The lower Appellate Court also found that the plaintiff has not established that she is in possession of the property. On the basis of the above said finding, the lower Appellate Court allowed the Appeal and hence, the Second Appeal.
5. At the time of admission the following substantial question of law arose for consideration.
"Whether the retrospective application of Section 4 of the Benami Transaction (Prohibition) Act, 1988 can be invoked in the case of wife and unmarried daughter covered under Section 3(2) of the Act ?"
6. In the present case, the defendants are claiming right under Ex.A.1 on the basis that the property belongs to their mother as she purchased from her own funds. The plaintiff has come forward with the case claiming right on the basis of the Settlement Deed marked as Ex.A.12 dated 05-09-1972 executed by late Marimuthu, her husband. Though the plaintiff has come forward with the plea that the said Marimuthu purchased the property from out of his funds under Ex. A.1, benami in the name of Kannammal, the said fact alone cannot be taken into consideration to reject the alternative case of the defendants. Even assuming that Marimuthu purchased the property in the name of his first wife Kannammal, if the intention was only for the benefit of Kannammal, the plaintiff cannot sustain the suit and so the plaintiff has to establish that the property was purchased by Marimuthu himself benami in the name of Kannammal for the benefit of Marimuthu and not for the benefit of Kannammal herself. Though the trial Court rejected the case of the defendants that the property was purchased under Ex.A.1 from out of the funds of their mother the trial Court has not at all considered the alternative defence that has been taken by the defendants to the effect that even assuming that Marimuthu purchased the property in the name of Kannammal, it is only for her benefit. Unfortunately, the lower Appellate Court also has not considered the case of the defendants that the property was purchased by Kannammal herself by paying consideration out of her own funds. The lower Appellate Court has reversed the judgment of the trial Court only on the ground that the Benami Act of 1988 will apply to the facts of the case though the said finding cannot be sustained in view of the judgment of the Apex Court reported in A.I.R. 1996 S.C. 236. Even with respect to the intention the lower Appellate Court has simply found that the plaintiff has not established that the Marimuthu purchased the property with intention to retain the benefit for the family in the said property. 7. Since the Courts below have not properly dealt with the case to arrive at the correct conclusion, in the interest of justice, I am inclined to remit back the matter to the trial Court to dispose of the suit afresh framing proper issues even with reference to the alternative plea raised by the defendants regarding the intention of Marimuthu to purchase the property for the benefit of his first wife Kannammal. Hence the judgment and decree of the Courts below are set aside and the matter is remitted back to the trial Court to try the suit again and decide the case. The parties are at liberty to adduce any evidence, if it is necessary.
With the above observations, the Appeal is allowed. No costs.