Madras High Court
A. Thayammal And Anr. vs Kaladevi on 25 January, 1993
Equivalent citations: (1993)2MLJ44
JUDGMENT Srinivasan, J.
1. The defendants are the appellants, the suit was filed by the respondent for partition and separate possession of her 1/2 share in the plaint schedule mentioned property and for injunction restraining the second defendant from interfering with the peaceful possession of the plaintiff. The case as set out in the plaint is as follows:
The plaintiff is the daughter of the first defendant and the second defendant is the plaintiffs brother. The plaintiff was married to one Selvaraj Nadar on 29.8.1976. He was a partner in the family business run in the name and style of "Vairamani and Brothers". The said business was closed in the year 1978 and in a family arrangement the business was allotted to the plaintiffs husband. Thereafter the plaintiffs husband changed the name of the business as "S. Kaladevi Dhall Mills" and it was being run by him as a sole proprietor. That was carried on till 31.3.1983. The plaintiffs father died on 17.10.1981. When the plaintiffs husband wanted to purchase lands with the money in his possession in 1980 the father of the plaintiff also wanted to contribute one-half and agreed to purchase the property in the joint names. Accordingly, the properties were purchased in 1980 in the names of the plaintiff and the first defendant, her mother. Thus, the plaintiff is entitled to 1/2 share in the properties, the second defendant has no interest in the properties. But he is trying to interfere with the possession of the plaintiff. The title of the plaintiff to the half share is being denied and the plaintiff is obliged to file the suit praying for the reliefs set out already.
2. The second defendant filed a written statement. It is stated in the written statement that the plaintiffs husband had no funds either to run the business or to purchase the property. On the other hand, the second defendant had accumulated about Rs. 3 lakhs by doing business from 1970 to 1978 and the properties were purchased only with those funds, the properties were purchased in the joint names of the plaintiff and the 1st defendant. The plaintiff cannot claim any right in the suit property and the suit is liable to be dismissed.
3. The trial court held that no part of the consideration was advanced by the plaintiff or her husband and the possession of the properties was with the defendants. It is also held that the original title deeds were with the defendants. However, the trial court taking note of passing of the Benami Transactions (Prohibition) Act, 1988 and following the judgment of the Supreme Court in Mithilesh Kuiiiari v. Prem Behari Khare , held that it was not open to the first defendant to contend that the properties were purchased benami in the name of the plaintiff also. Consequently, he held that the plaintiff was entitled to half share in the properties and passed a preliminary decree accordingly. He dismissed the prayer for injunction.
4. Aggrieved defendants have preferred this appeal and the plaintiff has filed a memorandum of cross-objections. The plaintiff while praying for a decree for injunction has attacked the findings of the learned trial judge which are against her.
5. We have gone through the evidence and the judgment of the court below. At the outset it must be pointed out that the trial court has failed to apply the relevant test to consider whether a transaction is benami or not. There are several decisions laying down the various tests to be applied in such transactions whenever such question arises. It is sufficient to refer to the judgment of a Division Bench of this Court in Ponnuswamy Nadar v. Narayan Nadar (1976)1 M.L.J. 1. The Division Bench held that the burden of proof lies heavily on the person who claims against the tenor of the document to show that the ostensible owner was a mere name-lender and the property was in fact purchased only for his benefit. The following passage in the judgment would be relevant which needs extraction:
It has been held repeatedly that the burden of proof lies heavily on the person who claims against the tenor of the deed, that is, the alleged beneficiary, to show that the ostensible vendee was a mere name-leader and the property was in fact purchased only for his benefit. Such burden would be discharged by such a plaintiff by satisfying the well-known criteria viz:
(1) the source of purchase money relating to the transaction; (2) possession of the property; (3) the position of the parties and their relationship to one another; (4) the circumstances, pecuniary or otherwise, of the alleged transferee; (5) the motive for the transaction; (6) the custody and production of the title deeds; and (7) the previous and subsequent conduct of the parties. Each of the abovesaid circumstances, taken by itself, is of no particular value and affords no conclusive proof of the intention to transfer the ownership from one person to the other. But a combination of some or all of them and a proper weighing and appreciation of their value would go a long way towards indicating whether the ownership has been really transferred or where the real title lies. In every benami transaction, the intention of the parties is the sense. The true test to determine whether the transaction is benami or not is to look to the intention of the parties viz., Whether it was intended to operate as such or whether it was only meant to be colourable; if colourable, the transaction is benami, otherwise the transaction is not benami. On the other hand if the parties intended that it should take effect, the transaction cannot be said to be benami.
6. The trial court has unfortunately not considered the question of motive for purchase in the name of both the plaintiff and the first defendant., After referring to the 'aspects of consideration, possession of the property and the possession of the title deeds, the trial court has proceeded to hold that the property was purchased only by the defendants and not by the plaintiff. The findings of the trial court on the question of benami are wholly unsustainable. The question of motive has not been considered by the trial court and the other tests laid down are also not applied in this case. There was no motive at all for joining the plaintiffs name with that of the first defendant in the purchase deeds if really the funds were supplied by the second defendant only. Absence of motive is a strong indicator against the case of benami.
7. Even with regard to the consideration for the purchase of the property, the trial court has failed to advert to the evidence on record while deciding the question. The trial court has wrongly thrown the burden on the plaintiff to prove that she advanced a part of the consideration. The recitals in the documents Exs.B-1, B-2, B-3 and B-5 which are the documents under which the suit properties were purchased clearly show that the consideration was paid by both the purchasers. In fact, the recital in Ex.B-1 in Tamil is very significant It reads as follows:
Similar recitals are found in the other documents. When there is a specific recital to this effect it is for the defendants to prove that the same is erroneous. It is highly doubtful whether the defendants are entitled to adduce evidence contrary to the express recital in the documents. Even assuming such evidence could have been let in by the defendants, it should be said that defendants have miserably failed, to adduce such evidence. Apart from the recitals in the documents, the plaintiff has also examined her husband as P.W.2. He has spoken to the fluids available with him and the payment of part of the consideration for the purchase. He has also produced Exs.A-10 and A-11 which are the statements issued by the Bank in which the plaintiff had accounts in the name of Kaladevi Dhall Mills. The statements of accounts show that during the relevant period there were, funds to the extent of more than a lakh of rupees and periodical withdrawals had been made. The trial court has taken the view that there is no evidence to show that the funds were withdrawn from the Bank nor paid to the vendor under the documents. The reasoning is clearly erroneous. The evidence adduced by the plaintiff as to the availability of funds, taken along with the specific recitals in the documents would prove the case of the plaintiff and there is no evidence to the contrary on the side of the defendants. There was no cross-examination of P.W.2 by the defendants as regards. Exs. A-10 and A-11.
8. The defendants place reliance on Ex.B-18. Even a look at the said document would show that it is not maintained in due course of business. Ex.B-18 comprises of certain slips containing entries relating to the expenses said to have been incurred with reference to the documents,. Learned trial Judge has chosen to accept Ex.B.18, as a genuine document just because the figures found therein are correlated by the amounts mentioned in the sale deeds and the amounts spent for purchase of stamps as found in the sale deeds. Ex.B-18 was not produced earlier and for the first time D.W.1, the second defendant produced it on 16.8.1988. The document was not put to P.Ws. 1 and 2 at the time of their examination. The plaintiff has challenged the genuineness of Ex.B-18 and cross-examined D.W.1 regarding the same. No doubt he has asserted that the hand-writing in Ex.B-18 is that of his father. But his case is that he gave funds to his father in a lump sum. He does not have any scrap of paper to prove that he had given money to his father at any time. Significantly, D.W.4 the first defendant has deposed that she saw Ex.B-18 for the first time on the date of deposition. We are of the view that Ex.B-18 has not been sufficiently proved to be a genuine document and the court cannot act upon the same. Exs.B-12 and B-14 are the letters written to the second defendant in the year 1970 by his father and grand-mother. They disclose that the family was struggling even for maintenance. It refers to the receipt of small amounts from the second defendant which went in discharge of certain debts owed by the family. Hence Exs.B-12 to B-14 will not prove the availability of funds with the second defendant.
9. The written statement does not contain any specific plea as to who provided the funds for the purchase of properties. It has merely denied the statement in the plaint and made a reference to the business carried on by the second defendant. Nowhere in the written statement it has been mentioned that the second defendant provided the funds or his father gave funds. But the trial court has taken the view that it was the father of the second defendant who purchased the properties with his funds when the plaintiff was living jointly with him. There is no warrant for coming to such a conclusion.
10. As regards possession of the properties, the conclusion of the learned trial Judge is equally erroneous. According to the defendants the parties were living jointly in the same house and if it is so there is no question of exclusive possession being with the defendants. On the other hand, the plaintiff has produced certain kist and tax receipts to show that she was in possession. There is no evidence on record to prove exclusive possession with the defendants. Just because the defendants have produced the original title deeds, it could not be concluded that the purchases were made with the funds of the defendants benami for the exclusive benefits of the defendants.
11. Strictly, it is not necessary for us to have gone into the question of benami after passing of the Benami Transactions (Prohibition) Act, 1988 and the court below has relied on the provisions of the Act and the judgment of Mithilesh Kumari v. Prem Behari Khare and held that the defendants are also entitled to the partition and consequently granted a decree in favour of the plaintiff. But learned Counsel for the appellants contended that the bar is only against the plea of benami raised by the second defendant and in so far as the first defendant is concerned there is no such bar. According to the learned Counsel, the first defendant is the co-purchaser and it is open to her to contend that the benefit of the purchase should go entirely to her and the other purchaser namely, the plaintiff is not entitled to any part of the properties. He placed reliance on Section 45 of the Transfer of Property Act, which is in the following terms:
Where immovable property is transferred for consideration to two or more persons, and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical, as nearly as may be, with the interests to which they were respectively entitled in the fund; and, where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced.
In the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property.
12. The argument of learned Counsel is that Section 45 of the Transfer of Property Act has not been repealed by the Benami Transactions (Prohibition) Act and it is open to joint purchasers to prove that one among them had not parted with any consideration and therefore, not entitled to any part of the property. The argument is clearly fallacious. The provisions of the Benami Transactions (Prohibition) Act, 1988 prevent any person from setting up any plea of benami with regard to the property standing in the name of another person. Section 2(a) of the Benami Transactions (Prohibition) Act defines any transaction in which property is transferred to one person for a consideration paid or provided by another person. Section 3 of the Benami Transactions (Prohibition) Act prohibits benami transactions. Section 4 of the Benami Transactions (Prohibition) Act prohibits filing of any 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. Section 4(2) of the Benami Transactions (Prohibition) Act prevents any defence being raised on the basis of 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. A perusal of the above sections would go to show that if the properties were acquired in the name of another person one person cannot claim that the person in whose name the properties stand as the owner is not the real owner of the properly. In so far as this case is concerned the properly has been purchased in the joint names of the plaintiff and the first defendant. It is not open to the first defendant to say that in so far as the plaintiff is concerned she is not entitled to claim any right to the property. That is the effect of the Benami Transactions (Prohibition) Act.
13. Learned Counsel contends that when a property is purchased in the names of two persons one of them can claim exclusive title on the basis of Section 45 of the Transfer of Property Act. According to him it is open to her to say that the plaintiff has not paid any part of the consideration and the entire consideration having proceeded from her, she is entitled to the entire properly. There is no substance in this contention. The position, is the same whether the property stands in the name of one or two or more. It is not possible for one of them to contend that the other is a mere name lender. Such a plea is barred by the provisions of the Benami Act, 1968. Moreover even according to the defendants the consideration proceeded entirely from the second defendant and not from the first defendant. When it is conceded that the second defendant cannot set up the plea of benami, the first defendant is in no way better. She will be equally barred from raising the contention.
14. Now we have found that the findings, given by the trial court that the properties were purchased with the aid of funds of the first defendant and it was benami, are unsustainable. On the evidence, we have held that the properties were purchased with the aid of funds advanced by the plaintiffs husband as well as the defendants and therefore, the plaintiff is entitled to a share equally in the properties along with the defendants. Learned Counsel for the appellants placed reliance on the judgment of the Madhya Pradesh High court in Syed Tufel Ahmed v. Syed Abrar Ahmed, 1980 M.P.L.J. 68 (S.N.) 204. It was found in that case that the entire consideration was paid by one of the persons in whose name the property was purchased and it was held that the plaintiff, who had not paid any part of the consideration, was not entitled to any share in the property. That was a case which was decided under Section 45 of the Transfer of Property Act, long before the Benami Transactions (Prohibition) Act came into force. That will have no bearing on the present case.
15. Learned Counsel relied upon the judgment of the Allahabad High Court in Mohan Lal v. Board of Revenue . In that case, the recital in the document indicated that the plaintiff had 1/21 share in the disputed property. But the court, however, held that the plaintiff was entitled to half share in view of the fact that he had contributed one half share of the consideration and the case was decided under Section 45 of the Transfer of Property Act, before the Benami Transactions (Prohibition) Act was enacted. However, we must point out it may not be open to the court to alter the share mentioned clearly in the document and the sale deed clearly referred to 1/21st of the share of the plaintiff, We are unable to see how the court was able to grant one half share in the property. But it is not necessary for us to consider the correctness of the judgment in that case. Suffice it to say that the ruling has no applicability in the present case. Consequently, the decree for partition and separate possession of plaintiff's one-half share is affirmed.
16. Since the second defendant has no right to the share whatever to claim and now the plaintiff is entitled to the possession of one-half share there is no reason to refuse the prayer for injunction made by. the plaintiff. Hence there will be a decree in favour of the plaintiff for injunction restraining the second defendant from interfering with her peaceful possession of the property.
17. The appeal is dismissed and memorandum of cross-objections is allowed. There will be no order as to costs.