Madras High Court
Kathoom Bivi Ammal vs S. Mohamad Alias Sheik Mohamad And Ors. on 2 March, 1990
Equivalent citations: (1990)2MLJ42
JUDGMENT K.A. Thanikkachalam, J.
1. This appeal arises out of the judgment and decree rendered in O.S. No. 80 of 1981 dated 12-2-1983. As against the judgment and decree in O.S. No. 80 of 1981, A.S. No. 15 of 1984 was filed before the District Court Pudukottai which was later on transferred to this Court and numbered as A.S. No. 986 of 1986. The plaintiff is the appellant "herein O.S. No. 80 of 1981 was filed for declaration of plaintiffs title to the suit properties and permanent injunction restraining the defendants from interfering with the plaintiff's possession and enjoyment of the suit properties and for costs. The case of the plaintiff is as under : The suit properties are situate in Andaikulam and Santhiniapatti village. A-Schedule property is the house and its apartments and D-schedule properties are both wet and dry lands. The suit properties originally belonged to one Jain Bivi Ammal and her two sons viz., Kadhar Ibrahim Rowther and S. Sheik Mohamad alias S. Shah Mohamed, who is the first defendant in the suit. The plaintiff is the wife of Kadhar Ibrahim Rowther. Mother and two sons sold the suit properties besides other items of properties by means of a sale deed dated 21-10-1941 marked as Exhibit A-1 (B-4) for a consideration of Rs. 1,000 to Syed Mohamad Rowther. Syed Mohamed Rowther leased out the suit Arschedule properties in favour of the Jain Bivi Ammal and her two sons by a registered rent deed dated 24-10-1941. B-schedule properties besides other properties were also leased out by Syed Mohamed Rowther by another registered rent deed dated 24-10-1941 in favour of Jain Bivi Ammal and her two sons. They were enjoying the suit properties and thereafter they surrendered the same to Syed Mohamad Rowther. After the death of Syed Mohamed Rowther, his only son and heir, Mohamed Ibrahim succeeded to his father's properties and sold the same to P.K. Kadhar Ibrahim Rowther for a valid consideration by means of a sale deed dated 5-4-1955. The said P.K. Kadhar Ibrahim Rowther took possession of the suit properties and he was in possession and enjoyment of the same. The plaintiff is the daughter of the said P.K. Kadhar Ibrahim Rowther. She married S.S. Kadhar Ibrahim Rowther one of the vendors of the sale deed dated 21-10-1941 about 35 years ago.
2. P.K. Kadhar Ibrahim Rowther is having 5 daughters, Since the plaintiff has been married in a poor family, her father wanted to provide her with some properties. Hence he delivered possession of the suit properties to the plaintiff promising her to execute a gift deed in her favour in respect of the suit properties. Unfortunately, thereafter be became incapacitated by paralytic attack and was bedridden and therefore he was unable to execute a gift deed in respect of the suit properties. Ultimately, plaintiff's father died and the plaintiff continued to be in possession of the suit properties even after the death of her father. Thereafter, her brothers who are the sons of P.K. Kadhar Ibrahim Rowther executed a settlement deed dated 21-4-1980 in respect of the suit properties in favour of the plaintiff conveying the suit propertied to fulfil the desires of their father. Patta for the suit property stands in the name of the plaintiff and she is paying kists for the B-schedule properties. She is also paying house tax for the A-schedule property.
3. The plaintiff's husband, family did not own any properties worth mentioning the 1st defendant is the brother of the plaintiff's husband. The first defendant went to Ceylon to the out his livelihood and thereafter he came to India and joined the military service. He came to plaintiff's house in the middle of 1980 and stayed there. According to the plaintiff her husband's brother would have taken some of the documents from her house. After this, the 1st defendant claimed share in the suit properties and the plaintiff denied his claim. So, the first defendant with the help of other defendants attempted to take possession of the suit properties. In the month of March, 1981, the defendants came to the plaintiffs house and obstructed her and her family members from "enjoying the suit properties. She sent a complaint to the Inspector of Police, Keeranur in March 1981, but the police did not take any action on the complaint. She filed a petition before the Revenue Divisional Officer, Pudukottai in detail. The Revenue Divisional Officer, Pudukottai sent a notice on 8-4-1981 directing the plaintiff and the first defendant to appear before him. Thereafter the Revenue Divisional Officer, Pudukottai, directed them to appear before the Tahsildar, Kulathur. The enquiry before the Tahsildar, Kulathur is pending. The first defendant also compelled the plaintiff's husband to sign some blank as well as stamped papers under threat and the plaintiff's husband signed those papers in order to save his life. When the plaintiff came to know about this incident, she gave a complaint to the police. In the meanwhile, the plaintiff came to know that the defendants are making arrangements to create some documents in the blank and stamped papers obtained from her husband. Therefore, the plaintiff states that if there is any such document, such document is forged document which will not be binding upon the plaintiff. According to the plaintiff the defendants are not entitled to claim any right over the suit properties. Therefore, the plaintiff came forward with the suit.
4. The first defendant's case is that Jain Bivi Ammal and her two sons continued to be in possession of the suit properties and the title is still vested in them. Jain Bivi Ammal and her two sons are exercising acts of ownership and have been in possession and enjoyment of these properties according to their own right. The transaction referred to in para 2 of the plaint are benami transaction. The plaintiff's husband unequivocally admitted in his statement before the arbitrators that the plaintiff's husband and the first defendant returned to India from Ceylon after their business incurred loss. In the year 1944, when the first defendant joined in the military service, he allowed his brother to manage the family affairs and he was looking after the property as co-owner. Their mother died in the year 1963. The plaintiff's husband S.S. Khadir Ibrahim in the course of management has made alterations and purchased properties out of the common funds and he was in possession and enjoyment of the same by paying kists etc., This was done on behalf of himself and his brother while he was in military service. The first defendant has been sending monies to his mother and brother as his contribution towards the upkeep and maintenance of the family and for payment of common tax burden. On his return to native place in 1979, the first defendant demanded his share from the properties and the income therefrom, but his brother was not amenable nor inclined to comply with his demand for partition separate possession. The first defendant complained about the matter to the olders in the locality. He and his brother thereafter agreed to settle the dispute by referring the same to the arbitrators. To this effect a muchalica was drawn and the arbitrators decided the issue and rendered arbitration award alloting separate properties. The first defendant was allotted in the arbitration a portion of A schedule house with the new house built thereon and items 4 to 8 of the B-schedule properties. According to the first defendant, the plaintiff and her husband are well aware of the arbitration proceedings. It is not correct to say that he forced his brother to sign on blank papers. Therefore, the first defendant states that according to the arbitration award he is entitled to a portion of the suit property.
5. On these pleadings, as many as 7 issues were framed by the trial court. The plaintiff marked as many as 27 documents. Exhibit XI and X-2 are third party exhibits. The plaintiff examined herself as a witness and she also examined three other persons as witnesses on her behalf. The first defendant examined himself as a witness and he also examined two other witnesses on his side. On considering the facts appearing in this case, and after hearing the arguments advanced on both sides, the trial court dismissed the suit with costs. It is against this judgment and decree, the present appeal is filed before this Court.
6. The learned Counsel appearing for the appellant contended that the 1st defendant is the brother of the plaintiff's husband. The suit properties originally belonged to her mother in-law, her husband and the first defendant in the suit. They sold the suit properties along with other properties by a sale deed dated 21-10-1941 for a consideration of Rs. 1,000 to Syed Mohamad Rowther. Thereafter the said property was leased in favour of Jain Bivi Ammal and her two sons. After the said lease period was over, the properties were handed over to Syed Mohamad Rowther. After the death of Syed Mohamd Rowther, his son Mohamad Ibrahim Rowther succeeded to the properties of his father and then he sold the same to P.K. Kadher Ibrahim Mohamad for valid consideration by means of a sale deed dated 5-4-1955. The purchaser took possession of the suit property and he was enjoying the same. In order to fulfil the wishes of her late father, her brothers conveyed the suit properties by executing a settlement deed in her favour. After executing the registered settlement deed dated 24-4-1980 under Ex-A-9, the appellant was paying kists and other Government dues and she was enjoying the same. According to the appellant, the first defendant went to Ceylon to eke-out his livelihood and since his business incurred loss, he returned to this country and thereafter joined the military service. Therefore, according to the appellant the first defendant has no manner of right, title or interest over the suit properties. The appellant's case is that the first defendant obtained signature of her husband under threat on certain blank stamped papers. With the help of those papers he obtained an arbitration award. According to her, the award will not be binding upon her since she is not a party to that award proceedings and she has also no notice of such proceedings.
7. Syed Mohamad Rowther executed a sale deed to Vela Gounder for Rs. 1,000 conveying 1.51 acres under Ex.A-5 dated 30-4-1944. So also, Ex.A.C. dated 22-12-1946, a sale deed was executed to Kathu Jain Bivi Ammal for consideration of Rs. 1,000. The first defendant has not raised any objection to abovesaid two sale transactions and he is attacking only the transaction under Exhibit A-7 dated 5-4-1955 a sale deed executed by Mohamad Ibrahim Rowther to Kadhar Ibrahim Rowther for Rs. 1,000. According to the learned Counsel, the plaintiff became the owner of this property by settlement dated Ex.A-9 (B.16), dated 21-4-1980. The learned Counsel submitted that even according to the first defendant the sale in favour of Syed Mohamad Rowther by a deed dated 24-10-1941 and the transactions in para. 2 of 'the plaint are benami transaction and therefore according to the learned Counsel after the Benami Prohibition Act came into force. Syed Mohammad Rowther would have become a full owner and if that is so plaintiff's title to the suit properties is perfect and unquestionable. Therefore, the first defendant cannot question the plaintiff's title to the suit properties since she obtained the same by way of settlement deeds executed by her brothers, after the death of their father. Even according to the trial court, the learned Counsel pointed out that the transactions under Exhibits B-4 and B-5 are ''benami transactions. If that is so, according to the iearned counsel after coming into force of the Benami Prohibition Act, the plaintiff became the full owner of the plaint schedule properties. Therefore the learned Counsel for the appellant submitted that the appellant's right to the suit properties is unquestionable.
8. On the other hand, the learned Counsel appearing for the first respondent contended that the sale deed executed by first defendant, his brother and mother dated 21-10-1941 in favour of Syed Mohammed Rowther is not a benami transaction but it is only a sham and nominal document. The learned Counsel pointed out that in the said transaction they do not want to part with the title of the suit property, and they never intended to convey their title. The said deed was executed only to keep away the creditor. According to him, even in the written statement there are pleadings to show that the transaction is only a sham and nominal transaction and therefore the title to the properties still vest with the first defendant, his brother and mother. The learned Counsel contended that the finding of the trial court and the averments made in the written statement that it is a benami transaction, is loosely worded expression and really the transaction is not a benami transaction, but only a sham and nominal transaction. The learned Counsel further contended that Ex-A-5 and A-6 were executed with the consent of the first defendant and therefore he is not against those transactions. Exhibit A-7 was executed against the intention of the first defendant and his brother and therefore that transaction is not a valid transaction. The learned Counsel submitted that in the arbitration proceedings, the first defendant's brother agreed to partition the properties and on that basis the arbitration award was passed and in terms of that award a decree was also passed in O.P. No. 2 of 82. Therefore, the award and the decree are binding upon the plaintiff. In support of his contention, that the sale deed dated 21-10-1941 Ex-A. 1 is a sham and nominal document, the learned Counsel appearing for the first respondent relied upon the decisions reported in Sree Meenakshi Mills v. C.I.T. Madras (1957) I M.L.J. (SC) 1. In order to support his contention the learned Counsel relied upon the provisions contained in Order 41, Rules 25 and 33, Civil Procedure Code and Section 107, Civil Procedure Code. The learned Counsel ultimately contended that the case of the first defendant is that the document executed on 21-10-1941 is, a sham and nominal document and the transaction is not benami transaction. According to the learned Counsel the parties and the trial court went on a wrong direction and came to the conclusion that it is a benami transaction. For this reason, the learned Counsel contended that an opportunity may be given to the first defendant to adduce evidence to show that the deed dated 21-10-1941 is a sham and nominal document He further contended that since this is a transferred appeal and if in case the judgment of this court goes against his client, he cannot file a second appeal. For all these reasons, the learned Counsel made a request to set aside the judgment and decree rendered by the trial court and remit back the same with a direction to dispose of the case a fresh on the evidence adduced by the parties.
9. By way of reply, the learned Counsel appearing for the appellant pointed out that even if the transaction is sham and nominal that transaction is also prohibited by the Benami Prohibition Act. According to the learned Counsel the first defendant fully knew about the nature of the transaction. He categorically stated in the written statement in more than one place that it is a benami transaction. Even in the deposition it is stated that the sale transaction dated 21-10-1941 is a benami transaction and now it is not open to him to go back and say that it is not a benami transaction, but only a sham and nominal transaction.
10. According to the learned Counsel Section 7 of the Benami Prohibition Act prohibits even the transactions which is sham and nominal. The learned Counsel pointed out that such a right given to a party to plead that a transaction is sham and a nominal under Sections 81 and 82 of the Trusts Act is not now available, because both these Sections of the Trusts Act are repealed by the said Act. Therefore according to the learned Counsel, Benami Prohibition Act not only prohibits benami transaction but also any transaction which is sham and nominal.
11. However, the learned Counsel for the first defendant contended that Benami Prohibition Act cannot be made applicable to a transaction which is sham and nominal, because in the said Act there is nothing expressly stated as such. Therefore according to the learned Counsel for the first defendant it is not correct to state that the provisions of the Benami Prohibition Act is also applicable to sham and norninal transaction. The learned Counsel for the first defendant also contended that in deciding the issue arising in this case, the real nature of the said deed dated 21-10-1941 should be looked into.
12. I have heard the rival submissions made by the parties. I have set out the facts in detail. The only question that arises for consideration in this appeal is whether the sale deed dated 21-10-1941 executed by the plaintiffs husband, his brother and their mother in favour of Syed Mohammad Rowther is sham and nominal document as contended by the learned Counsel appearing for the first respondent. According to the first defendant, the said sale deed dated 21-10-1941 is a sham and nominal document and the parties never intended to part with their title. According to the appellant the said transaction is a benami transaction as pleaded in the written statement and as found by the trial court. In more than one place in the written statement, the first, defendant categorically stated that the sale deed dated 21-10-1941 is a benami sale deed.
13. In the written statement filed by the first defendant it is stated as under:
The various transaction referred to therein are not real but make-believe affairs without any idea or intention to pass title and in spite of them, Jain Bivi Ammal, and her sons continued to be in possession and are still in their possession and of the sons' enjoyment. As a matter of fact, Jain Bivi Ammal and her 1st son S.S. Khadir Ibrahim, who is none other than this plaintiffs husband, have been exercising acts of ownership and have been in possession and enjoyment of these properties in their own right and allegations to the contrary, are false and are not admitted. The fact, that the transactions referred to in paragraph 2 of the plaint are benami transactions have been unequivocally admitted by plaintiffs husband in his statements before the arbitrators and hence it is not open to the plaintiff to go behind the same.
14. Now the contention put forward by the learned Counsel appearing for the 1st defendant/1st respondent is that the said transactions are not benami transactions but only a sham and nominal. Therefore, the Benami Prohibition Act will not be applicable to the facts of this case. The learned Counsel for the 1st respondent further contended that in view of the fact that in the written statement filed by the first defendant there are certain allegations to the effect that the said transaction is sham and nominal, the 1st defendant must be given an opportunity to establish his case that the said transaction is a sham and nominal transaction. In support of his contention that the Benami Transaction and the transaction which is sham and nominal are two different concepts, the learned Counsel for the 1st defendant relied upon a decision in the case of Sri Meenakshi Mills v. C.I.T. Madras (1957) I M.L.J. 1 (SC). In this context, the learned Counsel also relied upon a decision reported in Bhim Singh v. Kan Singh , wherein it was held as under:
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 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, A.I.R. 1957 S.C. 49, relied on.
The fact remains that the trial court had categorically, held, that the transactions under Exhibit B-4 and B-5 are benami. All along it was the case of the first defendant that those transactions are benami transactions not intended to be acted upon. Therefore, now he cannot go back and say that the transactions under Exhibits B-4 and B-5 are only sham and nominal and not benami. The first defendant has not filed any cross-objection against the finding given by, the trial court that the transactions under exhibits B-4 and B-5 are benami transactions. It is also significant to note that the transactions under Exhibits A-5 and A-6 are not attacked by the first defendant, but he is attacking only the transaction under Ex-A-7. The reason given by the first defendant for attacking Ex-A-7 and not attacking Exhibits A-5 and A-6 is not convincing.
15. According to Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 (Act 45 of 1988).
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 the real owner of such property. (2) 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 in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.
16. In the case of Mithilesh Kumari and Anr. v. Prem Behari Khara , it was held that the Benami prohibition Act is applicable to pending suits also. The learned Counsel for the appellant contended that even the transactions which are sham and nominal are also hit by the Benami Prohibition Act. He placed reliance on the provisions contained in Section 7 of the Benami Transaction Prohibition Act, 1988. According to Section 7(1) "sections 81,82 and 94 of the Indian Trusts Act, 1882 (2 of 1882) Section 66, Civil Procedure Code 1908 and Section 281-A of the Income-tax Act, 1961 (43 of 1961) 61 are hereby repealed." Therefore according to the learned Counsel for the appellant the respondent cannot put forward the plea that the transaction which is sham and nominal is not hit by the above said Act. The concept of a transaction being sham and nominal is envisaged only in Sections 81 and 82 of the Indian Trusts Act. Since those sections are repealed, it is not now open to the learned Counsel appearing for the respondent to contend that the transaction which is sham and nominal, is not hit by the Benami Prohibition Act.
17. Section 81 of the Indian Trusts Act, 1882 (2 of 1882) reads as under:
Where the owner of property transfers or bequeaths and it cannot be inferred consistently with the attendant circumstances that he intended to dispose of the beneficial interest therein, the transferee or legatee must hold such property for the benefit of the owner or his legal representative.
So also Section 82 of the Trusts Act States:
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.
18. The learned Counsel appearing for the appellant further contended that it is not open to the first respondent now to plead against what is stated in the documents Exhibits B-4 and B-5. Because such a plea is expressly prohibited under Section 92 of the Indian Evidence Act.
19. On the other hand, the learned Counsel appearing for the first respondent contended that since the parties and the court below went on a wrong direction, the first defendant must be given an opportunity to establish his case that the transaction under Exhibits B-4 and B-5 are only that of sham and nominal. In this respect, the learned Counsel for the first respondent relied upon a decision of this court as reported in A. Rakkiapa Gounder v. Chinnu Gounden wherein it was held as under:
But following the principles of Patheperuma. Chetti v. Muniandi Servai (1908) 18 M.L.J. 277 : L.R. 35 I.A.98 : I.L.R. 35 Cal. 551 (P.C), the appellant can establish, if he can, that by reason of the attendant circumstances there was no intention to dispose of the beneficial interests in the property to the first defendant and that there was a resulting trust so far as the balance of course of the property was concerned. The agreement to reconvey pleaded in defence by the 1st defendant related only to the balance of property i.e., to the undisposed property and which was not required for the discharge of the debts. The attendant circumstances such as the previous execution of the trust deed, its failure, the position occupied by the 1st defendant in the way of a near relation of the plaintiff, the value of property being much more that price for which the property was sold, could not take away the full legal title which was vested in the defendant and they do not either contradict, vary of add to that title so as to attract Section 92 of the Evidence Act.
Though the plaintiff could not show by oral evidence that the beneficial interest was not intended to be conveyed, the same result could be achieved by establishing attendant circumstances which would be consistent with the case that there was no intention to transfer the beneficial interest within the meaning of Section 81 of the Indian Trusts Act.
In view of the fact that Benami Prohibition Act came into force with effect from 19-5-1988 this decision will not render any help to the first respondent.
20. Again the learned Counsel for the first respondent relied upon a decision reported in Nataraja Deekshidar v. Aiyathurai Padayachi , wherein this Court held as under:
Where the burden of proof was wrongly cast on a person who is not liable to discharge the burden, in such circumstances of the case, the matter has got to go back for fresh disposal so as to enable the correct person to discharge the burden.
For the above said reasons this decision also will not render any assistance to the first respondent. The learned Counsel for the first defendant also placed reliance on the provisions contained in Order 41, Rules 23, 25 and 33 and Section 107, Civil procedure Code in order to support his case that the first defendant must be given a fresh opportunity to adduce evidence to establish his case that the transaction under Exhibits B-4 and B-5 are of a benami transaction, but a sham and nominal transaction.
21. The question is whether the first defendant is entitled to as for this relief. First of all, in the Written statement the first defendant had categorically pleaded that the transactions under Exhibits B-4 and B-5 are only benami transactions. Again, the trial court by applying all the tests applicable to establish the benami transaction, came to the conclusion that the transactions, under Exhibition B-4 and B-5 are benami transactions. In view of the stand taken by the first defendant before the trial Court and the findings given by the court below on this point, I am of the opinion that now it is not open to the first defendant/first respondent to go back from his own case and request for an opportunity to adduce evidence to establish a new line of defence. In view of the fact that Sections 81 and 82 of the Trusts Act, 1881 were repealed by the Benami Prohibition Act, it is not now open to the first defendant to support his case on the plea that the transactions under Exhibit B-4 and B-5 arc sham and nominal since those transactions arc also hit by the Benami Prohibition Act. In view of the reasons as stated above and on a careful consideration of the facts appearing in this case, I hold that it is not possible to accept the contentions put forward by the first defendant/first respondent. Further, the fact that the present appeal is a transferred appeal and if the appeal is allowed the first defendant/first respondent may not get an opportunity to file a second appeal before this court cannot be a goal cause to remand this matter to the trial court for fresh disposal as requested by the learned Counsel for the first respondent.
22. In that view of the matter, the judgment and decree rendered by the trial court are set aside, the appeal is allowed and the suit O.S. No. 80 of 1981 is decreed as prayed for. Considering the relationship between the parties, they are directed to bear their own costs throughout.