Madras High Court
Dakshinamoorthy (Died) vs Gandhimathi on 8 September, 2017
Author: T.Ravindran
Bench: T.Ravindran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08.09.2017 Date of Reserving the Judgment Date of Pronouncing the Judgment 30.08.2017 08.09.2017 CORAM THE HONOURABLE MR.JUSTICE T.RAVINDRAN A.S.No.689 of 1992 and C.M.P.No.21579 of 2001 1.Dakshinamoorthy (Died) 2.John Peter 3.D.Rajendrakumar 4.D.Hemamalini 5.D.Manjula 6.D.Karunakarakumar ... Appellants [Appellants 3 to 6 are brought on record as L.Rs., of the deceased 1st Appellant vide order, dated 25.11.2011 and made in M.P.(MD) Nos.3 to 5 of 2011] -vs- 1.Gandhimathi 2.Radha 3.Susila 4.Subbaiah ... Respondents PRAYER: Appeal is filed under Section 96 of the Code of Civil Procedure, to set aside the Judgment and Decree of the learned Sub Judge, II Additional Subordinate Court, Trichy, passed in O.S.No.1170 of 1984, on 17.07.1992. !For Appellants : Mr.K.S.Sankar Murali ^For Respondents : Mr.Ramesh for Mr.K.Prabhakar for R1 :JUDGMENT
Aggrieved over the Judgment and Decree, dated 17.07.1992, passed in O.S.No.1170 of 1984, on the file of the II Additional Subordinate Court, Trichy, the defendants 1 and 2 have come forward with the present first appeal.
2. Pending appeal, it is found that the first appellant having died his legal representatives have been brought on record as the appellants 3 to 6.
3. The parties are referred to as per the ranking in the original suit.
4. The suit has been laid by the plaintiff for the reliefs of declaration, recovery of possession and past and future mesne profits.
5. The case of the plaintiff in brief is that the properties described in the plaint schedule (hereinafter, referred to as ?the suit properties?) belonged to the plaintiff. The first item of the suit properties having been purchased by the plaintiff, on 06.04.1979, from Belvi Joseph and others, for a valid consideration of Rs.20,800/- and the second item of the suit properties having been purchased by her, on 15.10.1973, from Renga Konar, for a valid consideration of Rs.2,000/- and the plaintiff's husband was having the custody of the original documents and according to the plaintiff, at the time of marriage, she was presented with ten sovereigns of gold jewels by her parents and seven sovereigns of gold jewels by the bridegroom party and the same belonged to the plaintiff and the plaintiff's husband, namely, Subbaiah was at Malaysia and the plaintiff went to Malaysia in the year 1970 and stayed there for nine months and again she went to Malaysia during 1973 and stayed there for six months and during her visit to Malaysia, she was presented with the jewels worth about 40 sovereigns by her father Kayamboo, who had been settled at Malaysia and working as an Accountant in a Government concern and further, according to the plaintiff, the suit properties were purchased by the sale of some of the gold jewels and no money was contributed by her husband for the purpose of the suit properties and there is also absolutely no motive for him to purchase the properties benami in her name and while so, her husband filed a suit in O.S.No.440 of 1980, on the file of the District Munsif Court, Tiruchirappalli, for declaration of his title to the suit properties and for injunction and the plaintiff had contested the same by filing a written statement and on seeing the resistance put forth by the plaintiff to the above said lis, her husband remained absent and the said suit was dismissed for default on 08.07.1982 and till date, no application has been preferred to restore the said suit by her husband and hence, the defendants are estopped from denying the title of the plaintiff in respect of the suit properties. The plaintiff has got title to the suit properties and the plea of benami set up by her husband is false and knowing the said fact, her husband did not prosecute the suit laid by him as earlier stated and further, according to the plaintiff, she had mortgaged the first item of the suit properties to the first defendant for Rs.6,000/- on 12.12.1979 and the first defendant being a mortgagor of the first item of the suit properties is estopped from questioning the title of the plaintiff to the said property. After mortgage, the plaintiff gave permission to the first defendant to enjoy the mortgaged property in lieu of interest and accordingly, the first defendant is in occupation of the same and it is now learnt that the first defendant has purchased the property from Subbiah on 18.11.1981 and after the purchase, he had sold a portion of the property to the second defendant on 25.11.1981 and the defendants are in occupation of the said property. In any manner, the sale effected in favour of the defendants 1 and 2 are invalid as the vendor of the first defendant has no title to convey the same. The said sale will not affect the rights of the plaintiff and hence, the plaintiff sent a notice on 06.12.1982 to the first defendant calling upon him to deliver the possession of the property and the first defendant gave a reply denying the title of the plaintiff to the first item of the suit properties and hence, it has become necessary on the part of the plaintiff to lay the suit for the appropriate reliefs. Further, as regards the second item of the suit properties, it is the case of the plaintiff that the same is in possession and enjoyment of the defendants 3 and 4, who had trespassed into the same taking advantage of the dispute above mentioned and the possession of the defendants 3 and 4 is unlawful and the plaintiff asked them to deliver the possession of the said property. Hence, the defendants are liable to pay the past and future mesne profits as claimed by the plaintiff.
6. Originally, the suit had been laid as informa pauperies and after being granted permission, it is found that the same had been converted into a regular suit.
7. The case of the first defendant, as adopted by the second defendant, is that the suit laid by the plaintiff is not maintainable and it is false to state that the first item of the suit properties belonged to the plaintiff and that she had purchased the same on 06.04.1979 as pleaded. The plaintiff has no resources to purchase any property muchless the first item of the suit properties. The admission of the plaintiff that the original documents are with her husband would indicate that the suit properties had been purchased only by her husband and not by the plaintiff. It is false to state that the plaintiff was unaware of the whereabouts of her husband. It is false to state that the plaintiff had been presented gold jewels during her marriage by her parents and the bridegroom as pleaded. It is further falsely pleaded by the plaintiff that she had been presented 40 sovereigns of gold by her father during her visit at Malaysia and the capacity of her father as pleaded is also not true and denied. It is false to state that the suit properties had been purchased by selling some of the gold jewels. It is false to state that no money was contributed by her husband for the purchase of the suit properties, on the other hand, the entire sale consideration for the purchase of the first item of the suit properties was given only by the plaintiff's husband Subbaiah and the plaintiff was having full contact with Subbaiah, who sent several amounts to the plaintiff for the purchase of the suit properties in her name as he being absent and was living at Malaysia. Though the suit properties were purchased by the plaintiff in her name, she was only a name lender and the suit properties were actually brought by the funds of Subbaiah and the purchase was intended only for Subbaiah. The plaintiff never contributed any amount for the purchase of the suit properties and she never enjoyed the suit properties as her own. The suit properties are treated only as the absolute properties of Subbaiah. The mortgage referred to in the plaint was made only at the instance of Subbaiah and since the sale deed was in the name the plaintiff, the mortgage deed was also executed in the name of the plaintiff and that cannot confer any right, title or interest on the plaintiff over the first item of the suit properties. Since the property belonged only to Subbaiah, he made the first defendant to believe that the suit laid by him also ended in his favour and thereby, the first defendant had purchased the first item of the suit properties for a valid consideration from Subbaiah and thereby, the first defendant is a bona fide purchaser for value without notice and the plaintiff also vacated and handed over the possession of the property to the first defendant and having put the first defendant in possession of the first item of the suit properties, the plaintiff is not entitled to question the sale effected in favour of the first defendant and she is estopped from doing so. The fact that the suit laid by Subbaiah had come to be dismissed for default on 08.07.1982 is not known to him. The mala fide intention and attitude of the plaintiff could be clearly seen when she has not even added Subbaiah as a party to the suit proceedings. Subbiah is a proper and necessary party to the suit proceedings and hence, the suit is bad for non-joinder of the said Subbaiah. The first defendant suspects that Subbaiah and the plaintiff in collusion have brought out the present suit with a view to extract money from him. The plaintiff is aware of the sale made to the first defendant and the first defendant is not a party to the said suit, namely, O.S.No.440 of 1980. Hence, the allegation that the dismissal of the said suit for default is binding upon the first defendant is false. The first defendant has already filed a suit, on the file of the District Munsif Court, in O.S.No.1935 of 1989, for declaration that the plaintiff has no right, title or interest over the suit properties and the said suit had already been decreed in his favour. It is false to state that the plaintiff had allowed the first defendant to be in possession of the first item of the suit properties in lieu of interest pursuant to the mortgage deed. The first defendant was in possession and enjoyment of the first item of the suit properties as the original owner and accordingly, he had sold the same to the second plaintiff. The plaintiff is not entitled to obtain the reliefs sought for and hence, the suit is liable to be dismissed.
8. On the basis of the pleadings set out above, the following issues were framed by the Trial Court for determination:
i. Whether the suit is bad for non-joinder of the plaintiff's husband Subbaiah?
ii. Whether the plaintiff has title to the suit properties?
iii. Whether the sale deeds executed in favour of the defendants 1 and 2 are legally valid?
iv. Whether the plaintiff is entitled to obtain the past and future mesne profits as prayed for?
v. Whether it is true as pleaded in the written statement that the plaintiff and her husband had laid the suit in collusion to defeat the rights of the others? and vi. To what reliefs the plaintiff is entitled to?
9. In support of the plaintiff's case, P.W.1 was examined and Exs.A1 to A8 were marked and on the side of the defendants', D.Ws.1 and 2 were examined and Exs.B1 to B40 were marked.
10. On a consideration of the rival contentions put forth by the respective parties and the materials placed, the Court below was pleased to decree the suit as prayed for and an enquiry was ordered under Order XX Rule 12 of the Code of Civil Procedure for the determination of the mesne profits in a separate proceedings. Challenging the said Judgment and Decree of the Court below, the present appeal has been preferred.
11. The following points arise for consideration in this appeal:
i. Whether the suit properties belong to the plaintiff? ii. Whether the plea of benami set out by the defendants 1 and 2 is true? iii. Whether the sale deeds executed in favour of the defendants 1 and 2 are true, valid and binding upon the plaintiff? iv. Whether the present suit laid by the plaintiff is barred by res
judicata on account of the suit in O.S.Nos.440 of 1980 and 1935 of 1989? v. Whether the plaintiff is entitled to obtain the reliefs of declaration, possession and mesne profits as prayed for? and vi. To what relief the appellants / defendants 1 and 2 are entitled to?
POINT NOS.I TO III:
12. According to the plaintiff, she is the owner of the suit properties by virtue of the sale deeds, dated 06.04.1979 and 15.10.1973. It is the further case of the plaintiff that she had purchased the suit properties for a valid consideration from her vendors under the above said sale deeds and the copies of the above said sale deeds had been marked as Exs.A1 and A2. Further, according to the plaintiff, her husband had not contributed any amount for the purchase of the suit properties under Exs.A1 and A2 and she had purchased the suit properties by selling some of her gold jewels and hence her husband cannot claim any title to the suit properties.
13. Originally, the plaintiff has not impleaded her husband in the suit. Thereafter, on the resistance put forth by the contesting defendants, it is found that subsequently, her husband had been impleaded as the fifth defendant and despite the array of her husband as fifth defendant, it is found that her husband had not filed his written statement contesting the claim of the plaintiff.
14. It is the case of the defendants 1 and 2 that the plaintiff has no resources to purchase the suit properties and only out of the funds supplied by her husband, the plaintiff had purchased the suit properties in her name and inasmuch as the petitioner's husband, namely, Subbaiah had been in Malaysia, the suit properties have been purchased in the name of the plaintiff and hence, it is only the plaintiff's husband, who has title to the suit properties and the plaintiff has no title to the suit properties and she is only a name lender to the sale transactions. In other words, according to the contesting defendants, the suit properties had been purchased benami by the fifth defendant in the name of the plaintiff.
15. In the light of the above defence set out by the contesting defendants, it is found that the onus rests only upon the contesting defendants to establish that the suit properties had been purchased by the fifth defendant in the name of the plaintiff. With reference to the contention of the learned counsel for the defendants 1 and 2 that the provisions of the Benami Transactions (Prohibition) Act, 1988 would not apply to the sale transactions covered in the suit, the said position also having not been controverted by the learned counsel for the plaintiff, the decisions reported in (1995) 2 SCC 630 [R.Rajagopal Reddy (Dead) by LRS., and others vs. Padmini Chandrasekharan (Dead) by LRS.], 2011 SAR (Civil) 213 [Samittri Devi & Another vs. Sampuran Singh and Another], (2005) 6 SCC 441 [G.Mahalingappa vs. G.M.Savitha] and 2017 (1) CTC 374 [Maria Francis (Died) and others vs. M.Vardhese @ Maria Varghese and others] are relied upon. A perusal of the above cited decisions would go to show that for the transactions, which had been taken place prior to the commencement of the Benami Transactions (Prohibition) Act, the said Act would not apply. As regards the position that the onus is upon the contesting defendants to establish the plea of benami, the said aspect is not controverted by the learned counsel for the defendants 1 and 2 himself and this could also be seen from the decision relied upon the learned counsel for the defendants 1 and 2 reported in AIR 2001 Allahabad 366 [Kuldeep Sharma and others vs. Satyendra Kumar Sharma and others].
16. It is not in dispute that the first item of the suit properties had been mortgaged by the plaintiff to the first defendant. The original mortgage deed has been marked as Ex.B1. It is admitted by D.W.1 that the contents found in Ex.B1 are true. However, according to the learned counsel for the defendants 1 and 2, the said mortgage has been made at the instance of the plaintiff's husband and inasmuch as the sale deed stand in the name of the plaintiff, she had executed the mortgage deed, namely, Ex.B1. If, as per the case of the contesting defendants, the plaintiff's husband is the true owner of the suit properties and the plaintiff is only the ostensible owner, as rightly argued by the learned counsel for the plaintiff, the recitals in the mortgage deed would have been that the plaintiff's husband is the owner of the suit properties and however, as the same had been purchased in her name benami, the plaintiff had executed the mortgage deed on behalf of her husband and so and so. However, it has been admitted by D.W.1 that in Ex.B1, there is a clear recital that the property mortgaged therein i.e., the first item of the suit properties absolutely belonged to the plaintiff and that she had purchased the same by virtue of the sale deed, dated 06.04.1979 and accordingly, she had been enjoying the said property absolutely as the full owner thereof. When such being the position, when even according to D.W.1, the recitals found in Ex.B1 are true, it is found that inasmuch as the said property absolutely belonged to the plaintiff as the full owner thereof, it is seen that the first defendant also acquiesced to the ownership of the plaintiff to the said item of the suit properties and accordingly, no challenge had been made to the recitals thereon found in Ex.B1. Therefore, the contention or the defence put forth by the contesting defendants that only at the instance of the plaintiff's husband, the mortgage deed has come to be executed by the plaintiff as she is the name lender for the sale transaction benami on behalf of her husband cannot be accepted in any manner. If that be so, as seen above, recitals as such would have been incorporated in Ex.B1.
17. Even though the provisions of the Benami Transactions (Prohibition) Act, 1988 would not be applicable to the case at hand, as to the proof of the benami transaction what are all the factors should be established have been illuminated by the Supreme Court in the decision reported in (2007) 4 MLJ 1076 (SC) [Binapani Paul vs. Pratima Ghosh and others], which are detailed as follows:
?(C) Benami Transactions Prohibition Act (45 of 1988) ? Benami transactions ? Burden of proof lies on the person, who alleges the transactions to be benami ? Essence of benami transaction is intention of parties concerned ? Such intention shrouded in a thick veil cannot be easily pierced. Burden of proof as regards the benami nature of transaction was also on the respondent. This aspect of the matter has been considered by this Court in Valliammal (D) by Lrs. v. Subramaniam and Others (2004) 7 SCC 233 wherein a Division Bench of this Court held:
?13.This Court in a number of judgments has held that it is well established that burden of proving that a particular sale is benami lies on the person who alleges the transaction to be a benami. The essence of a benami transaction is the intention of the party or parties concerned and often, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises as a substitute for proof. Refer to Jaydayal Poddar v. Bibi Hazra, Krishnanand Agnihotri v. State of M.P., Thakur Bhim Singh v. Thakur Kan Singh, Pratap Singh v. Sarojini Devi and Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S.Shah. It has been held in the judgments referred to above that the question whether a particular sale is a benami or not, is largely one of fact, and for determining the question, no absolute formulas or acid test, uniformly applicable in all situations can be laid. After saying so, this Court spelt out the following six circumstances, which can be taken as a guide to determine the nature of the transaction:
(1) the source from which the purchase money came;
(2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar;
(5) the custody of the title deeds after the sale; and (6) the conduct of the parties concerned in dealing with the property after the sale. (Jaydayal Poddar v. Bibi Hazral.
14. The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless, the source from where the purchase money came and the motive why the property was purchased benami are by far the most important tests for determining whether the sale standing in the name of one person, is in reality for the benefit of another.?
18. Considering the above said parameters for the establishment of the plea of benami, it is found that of them, two ingredients are very essential i.e., the motive why the property was purchased benami and the source from where the purchase money had come for the purchase of the property in question.
19. In this connection, the learned counsel for the plaintiff also relied upon the decisions reported in 2003 (1) CTC 705 [George Thomas vs. Smt.Srividya and another] and (2004) 7 SCC 233 [Valliammal (D) By Lrs., vs. Subramaniam and others].
20. As far as the motive aspect is concerned, it is found that absolutely no motive has been given by the contesting defendants or for the matter even by the plaintiff's husband, who has been examined as D.W.2 for the purchase of the suit properties benami in the name of the plaintiff. The only reason given by the contesting defendants for effecting the transaction benami in the name of the plaintiff is that at that point of time, her husband was at abroad. However, the above said reason cannot be accepted as an acceptable motive for the purchase of the suit properties in the name of the plaintiff. If really the consideration for the purchase of the suit properties had flown from her husband, as rightly argued by the learned counsel for the plaintiff, the husband would have endeavoured to acquire the properties only in his name and not in the name of his wife, namely, plaintiff. Therefore, when it is found that no acceptable motive has been attributed by the contesting defendants for the purchase of the suit properties in the name of the plaintiff, it is seen that one of the essential ingredients for the proof of the benami transaction is lacking in this case.
21. As regards the flow of money, as adverted to earlier, according to the plaintiff, she had purchased the suit properties out of the sale of some of her gold jewels. However, when the contesting defendants have taken the plea of benami and when the burden of proof lies upon them to establish the said plea, it is to be seen whether they have discharged the plea of benami. In this connection, certain demand draft transactions said to have taken place at the instance of the plaintiff's husband from abroad are placed on record by the contesting defendants as Exs.B4 to 40. Exs.B4 to B26 are stated to be the customers copies of the demand drafts taken by the plaintiff's husband at abroad. However, as rightly found by the Trial Court and also as seen by this Court, it is found that the above said documents, namely, Exs.B4 to B26 are only the customers copies and there is no indication therein to the effect that the amount mentioned therein had been utilized by the plaintiff for the purpose of the purchase of the suit properties. That apart, as found from the documents, it is noted that the documents marked as Exs.B6 and B9 to B15 and B18 do not bear the year during which the said documents have come to be issued. Therefore, it is found that it cannot be construed on the basis of the said documents that they pertain to the year of the purchase of the said properties by the plaintiff under Exs.A1 and A2. Therefore, those documents cannot be relied upon in any manner. Further, as rightly found by the Court below, there is a correction in the year in Ex.B16 and with reference to the same, there is no explanation forthcoming on the part of the contesting defendants. As seen by the Trial Court, the total amount of the documents comes to only Rs.25,396.35. Be that as it may, as found from the contents of the above said documents, there is no indication that the said demand drafts have been issued at the instance of the plaintiff's husband. In such circumstances, when there is no proof that the above mentioned demand drafts have come to be issued only at the instance of the plaintiff's husband and further, when it is found that as per Exs.B25 and B26 only, the demand drafts mentioned therein had come to be issued at the instance of one K.Subbaiah and when there is no reference about the plaintiff's husband in the other demand drafts, it is not safe to rely upon the said documents that the demand drafts mentioned therein had come to be issued at the instance of the plaintiff's husband as such and consequently, the amounts reflected in the demand drafts had been utilized by the plaintiff for the purchase of the suit properties. That apart, as rightly found by the Court below, the documents marked as Exs.B4 to B26 are not shown to be correlated with the other documents marked as Exs.B27 to B40 and in such view of the matter, it is found that the documents marked as Exs.B27 to B40 also could not be safely relied upon as they have no nexus with the demand drafts marked as Exs.B4 to B26. Further, when there is no indication whatsoever that the plaintiff's husband had sent the amount through the above said documents only for the purchase of the suit properties and when admittedly, the plaintiff is the wife of the fifth defendant, it is found that naturally, her husband, who had been working at abroad would have sent amount to the plaintiff for maintenance and in such view of the matter, it cannot be construed, even assuming for the sake of argument, that the said amounts comprised in Exs.B4 to B26 have been sent only by the plaintiff's husband, without any material, it cannot be held that the plaintiff had utilized the said amounts for the purchase of the suit properties as such. Further, as seen from the evidence of the plaintiff's husband examined as D.W.2, it is found that he has not clearly and categorically stated that the suit properties had been purchased benami in the name of his wife out of his funds and only deposed that the suit properties purchased in the name of his wife had not been purchased benami and he has also admitted that he had not put forth any objection to the mortgage effected by the plaintiff and the house tax receipts stand in the name of the plaintiff and he had come to know about the mortgage transaction only after returning to India. When such being the clear admission of the plaintiff's husband examined as D.W.2 and when he himself has categorically admitted that the suit properties had not been purchased benami in the name of his wife, his other evidence that he had sent the amount from abroad to the plaintiff under the above mentioned documents discussed supra, particularly, when they are not found to be sent at his instance and further, when there is no indication that the said amount was the consideration paid for the purchase of the suit properties, it is found that the contesting defendants have miserably failed to establish that the flow of money for the purchase of the suit properties had emanated from the plaintiff's husband, namely, D.W.2. Therefore, the other essential ingredient for the proof of benami has also not been made out by the contesting defendants in this case.
22. It is argued by the learned counsel for the defendants 1 and 2 that the plaintiff has not produced the original sale deeds and when it has also been admitted by the plaintiff that the original sale deeds are with the custody of her husband, the Court should hold that the suit properties had been purchased only by the husband benami in the name of his wife. It is found that the original sale deeds had not been produced by the plaintiff. Equally, it is found that even the plaintiff's husband examined as D.W.2 has not produced the original documents. No reason has been given by D.W.2 for the non-production of the original documents. However, as seen above, D.W.2 has admitted that the suit properties had not been purchased benami in the name of his wife. In such view of the matter, when it is found that the relationship between the plaintiff and D.W.2, being the wife and husband, and considering the Indian context, it is not unnatural on the part of the house wife to entrust the title deeds, bank documents etc., with the custody of her husband as they would be devoting their time only for the home management. In such view of the matter, it is found that the plaintiff has pleaded that the original title deeds are with her husband. It is not the case of the plaintiff that her husband is having the custody of the original documents as the owner of the suit properties. In such view of the matter, when the contesting defendants or for the matter, D.W.2 has not established the main ingredient, namely, motive for the sale transactions taken in the name of the plaintiff and also the flow of consideration from D.W.2 as such for the purchase of the suit properties, it is found that merely because, the plaintiff had not produced the original documents that by itself would not disentitle the plaintiff to claim that the suit properties are her own properties.
23. It is contended further by the learned counsel for the defendants 1 and 2 that there is no material placed to show that the suit properties were enjoyed by the plaintiff as the absolute owner. However, the above argument does not merit acceptance. As adverted above, even in Ex.B1 mortgage deed, it has been specifically averred that it is only the plaintiff, who has been in possession and enjoyment of the suit properties i.e., the property comprised therein as the full owner thereof pursuant to the purchase. Further, as seen above, when D.W.1 has admitted that the contents of Ex.B1 would show that the plaintiff is in possession and enjoyment of the mortgaged property, the defence that there is no proof that the plaintiff was in possession of the suit properties cannot be accepted. Further, it is also seen that even the contesting defendants have admitted that they have taken the possession of the first item of the suit properties only from the plaintiff and according to the plaintiff's case, she has allowed the first defendant to be in possession of the house in the first item of the suit properties in lieu of interest towards the mortgage transaction. Though the defendants would make the plea that they had taken the possession from the plaintiff's husband, there is no material at all placed on the part of the defendants to hold that they had taken the possession of the house comprised in the first item of the suit properties from D.W.2. As seen above, even D.W.2 has admitted that the property tax receipts stand in the name of the plaintiff. Therefore, it is found that when cumulatively the facts and circumstances of the case are assessed, it is only the plaintiff, who had been in possession and enjoyment of the suit properties and accordingly, had mortgaged the first item of the suit properties in favour of the first defendant and therefore, the contra arguments projected by the contesting defendants as regards the same cannot be accepted in any manner.
24. It is the case of the contesting defendants that they had purchased the first item of the suit properties from the plaintiff's husband. It has not been clearly established by the contesting defendants as to on what basis, they had purchased the said item from the plaintiff's husband. According to them, on the representation made by the plaintiff's husband that he has filed a suit in O.S.No.440 of 1980 and believing his representation, they had chosen to purchase the said property from him. However, as per the materials placed, it is found that O.S.No.440 of 1980 has come to be dismissed for default on 08.07.1982. No doubt, the first defendant claims to have purchased the first item of the suit properties prior to the same. If the case of the contesting defendants that the plaintiff's husband is the true owner of the suit properties and the plaintiff is only a name lender, it could be seen that while purchasing the first item of the suit properties from the plaintiff's husband, he would have insisted for clear recitals in the sale deed as to the factum of the purchase of the said property by the plaintiff's husband under a particular conveyance and that he had been enjoying the same as the full owner thereof etc. However, in the sale deed said to have been executed by the plaintiff's husband in favour of the first defendant marked as Ex.B2, it is not averred that the plaintiff's husband had purchased the property comprised therein under a particular conveyance and enjoying the same as the full owner thereof. On the other hand, the recitals found therein are that according to the plaintiff's husband, he derived the title to the property mentioned therein only by way of the decree passed in O.S.No.440 of 1980 and thereby, he is in possession and enjoyment of the suit property. Therefore, even as per Ex.B2, it is found that the plaintiff's husband has not traced his title to the property mentioned therein to any particular sale transaction and on the other hand, he seems to have placed the title to the said property only by way of the decree passed in O.S.No.440 of 1980. This would only go to show that the case of the contesting defendants that the suit properties had been purchased by the plaintiff under Exs.A1 and A2 only through the funds supplied by her husband is false. If the above case of the contesting defendants is true, necessary recitals with reference to the same would have been incorporated in Ex.B2.
25. It is found that at one stage of the matter in O.S.No.440 of 1980, the same had been ended in an ex parte decree. However, subsequently, the said decree has been set aside and finally, it is found that O.S.No.440 of 1980 has come to be dismissed for default on 08.07.1982. Therefore, it is found that the plaintiff's husband cannot thereafter lay any claim to the property comprised in Ex.B2 and it is not the case of the contesting defendants or the plaintiff's husband that steps have been taken to restore the above suit dismissed for default. Therefore, it is found that the case of the contesting defendants that they had, after appropriate verification of the title of the plaintiff's husband, chosen to purchase the property from him under Ex.B2 as such cannot be accepted in any manner. Even prior to the same, it is found that the said property has been mortgaged only by the plaintiff as the full owner thereof in favour of the first defendant. The first defendant having accepted the said mortgage and the recitals found in the mortgage deed marked as Ex.B1 cannot now say that it is only the plaintiff's husband, who had purchased the property out of his own funds. If that be so, as rightly argued by the learned counsel for the plaintiff, the recitals would be otherwise in Ex.B2 and not as stated above. When further it is found that O.S.No.440 of 1980 has been dismissed for default, it is found that the source of title for the property as traced by the plaintiff's husband falls to the ground and it is found that the plaintiff's husband cannot lay any valid claim or title to the first item of the suit properties in any manner.
26. In the light of the above discussions, it is found that the defendants having failed to establish most of the essential ingredients or parameters for establishing their plea of benami transaction as regards the suit properties as adumbrated in (2007) 4 MLJ 1076 (SC) [cited supra], it is found that it is only the plaintiff, who is the absolute owner of the suit properties and the plaintiff's husband has no title to the suit properties. In such view of the matter, it is found that when the first defendant has chosen to purchase the property from the person, who has no title to the same, under Ex.B2, it is seen that the sale deed marked as Ex.B2 is not valid, true and not binding upon the plaintiff. Equally, it is found that the further sale effected by the first defendant in favour of the second defendant also has no any legality and hence, the said sale transaction is found to be not true, valid and binding upon the plaintiff. Considering the facts and circumstances of the case, it is found that the first defendant cannot claim to be a bona fide purchaser for value without notice as he is fully aware of the fact that it is only the plaintiff, who is the absolute owner of the property and accordingly, he had accepted the mortgage deed executed by the plaintiff under Ex.B1 in his favour claiming to be the owner of the property stated therein.
27. In view of the foregoing reasons, I hold that the plaintiff is the absolute owner of the suit properties and I further hold that the plea of benami set out by the defendants 1 and 2 is not true and I further hold that sale deeds executed in favour of the defendants 1 and 2 are not true, valid and binding upon the plaintiff. Accordingly, the Point Nos.I to III are answered in favour of the plaintiff.
POINT NO.IV:
28. It is the case of the contesting defendants that inasmuch as originally in O.S.No.440 of 1980, an ex parte decree had been passed in favour of the plaintiff's husband and during that period of time, the sale deed had come to be executed in favour of the first defendant by the plaintiff's husband under Ex.B2 and even though the said suit had come to be dismissed for default, it is the contention of their counsel that the ex parte decree passed in O.S.No.440 of 1980 would operate as res judicata to the present suit. Further, the contesting defendants have also taken a plea that the first defendant has laid a suit in O.S.No.1935 of 1989 seeking for declaration that the plaintiff has no right, title or interest to the suit properties and said suit decreed in favour of the first defendant and the said suit also would operate as res judicata to the plaintiff's suit. However, as rightly argued by the learned counsel for the plaintiff, when the contesting defendants have not raised the plea of res judicata in their written statement, they are not entitled to agitate the said issue during the course of the first appeal. Further, according to him, when even assuming for the sake of argument that the contesting defendants are entitled to take the plea of res judicata, with reference to the said plea, the contesting defendants, unless they produce the necessary documents for establishing the same, would not be entitled to sustain the said plea and on that account also, it is contended that the above said plea of the contesting defendants should not be accepted. In this connection, the decisions reported in (2004) 1 SCC 551 [V.Rajeshwari (Smt) vs. T.C.Saravanabava] and (2009) 10 SCC 273 [Ramchandra Dagdu Sonavane (Dead) by Lrs.s and others vs. Vithu Hira Mahar (Dead) by Lrs., and others] are relied upon. A perusal of the above cited decisions would go to show that the plea of res judicata being founded on proof of certain facts and then by applying the law to the facts so found. It is, therefore, necessary that the foundation for the plea must be laid in the pleadings and then an issue must be framed and tried and if the said plea is not properly raised in the pleadings or in issues at the stage of the trial, would not be permitted to be raised for the first time at the stage of appeal. It is further found that it is not sufficient that if only the plea has been taken generally, apart from taking the said plea, the same has to be substantiated by producing the copies of the pleadings, issues and judgment in the previous case and only on such materials, it could be decided as to whether the plea of res judicata has been made out or not. The pleadings of the respective parties in the previous suit and the judgment passed therein form the basis for the proof of res judicata. As rightly argued by the plaintiff's counsel, when such materials are not placed in the present case other than the decree passed in the above mentioned suits and when the pleadings with reference to the above said suits, judgments passed therein are not placed for consideration and that apart when the plea of res judicata itself has not been raised in the written statement, it is seen that the present argument put forth by the learned counsel for the defendants 1 and 2 that the suit of the plaintiff is barred by res judicata on account of the suits in O.S.Nos.440 of 1980 and 1935 of 1989 as such cannot be countenanced in any manner. That apart, it is found that the ex parte decree passed in O.S.No.440 of 1980 having been set aside and finally when the said suit has been dismissed for default for non-prosecution, it is found that the plea of res judicata as regards the above case cannot be accepted. That apart, it is also found that the decree passed in O.S.No.1935 of 1989 is also an ex parte decree and therefore, it is found that the issues involved between the parties in the said suit had not been heard and adjudicated by the Court concerned after inviting the objections of all the parties and hence, it is seen that the decree passed in the said suit also would not operate as res judicata to the plaintiff's present suit. As seen above, when for deciding the question of res judicata as such sans material as adumbrated in the decisions of the Apex Court, the said plea cannot be accepted merely on surmises and conjectures. In the light of the above discussions, I hold that the suit laid by the plaintiff is not barred by res judicata on account of the suits in O.S.Nos.440 of 1980 and 1935 of 1989. Accordingly, Point No.IV is answered in favour of the plaintiff.
POINT NO.V:
29. In the light of the discussions and conclusions arrived to Point Nos.I to IV, it is found that, as rightly determined by the Court below, the plaintiff is entitled to seek the reliefs of declaration, possession and mesne profits as prayed for. Accordingly, Point No.V is answered in favour of the plaintiff.
POINT NO.VI:
30. In conclusion, the Judgment and Decree, dated 17.07.1992, passed in O.S.No.1170 of 1984, on the file of the II Additional Subordinate Court, Trichy, are confirmed and resultantly, the first appeal is dismissed with costs. Consequently, connected miscellaneous petition is closed.
To:
The II Additional Sub Judge, Trichy.
.