Madras High Court
Syriapushpam vs Sulochana on 19 July, 2006
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 19.12.2018
DELIVERED ON : 15.02.2019
CORAM
THE HONOURABLE MRS. JUSTICE R. THARANI
S.A.(MD)No.125 of 2007
and
M.P.(MD)No.1 of 2007
Syriapushpam .. Appellant
Vs.
Sulochana .. Respondent
Prayer :Second Appeal is filed under Section 100 of Civil Procedure Code, to set aside
the Judgment and Decree passed in A.S.No.38 of 2003 dated 19.07.2006 on the file of
the Subordinate Court, Kuzhithurai reversing the Judgment and Decree in O.S.No.544 of
1996 dated 30.12.2002 on the file of the II Additional District Munsif Court, Kuzhithurai.
For Appellant : Mr.V.Meenakshi Sundaram, Senior Counsel
For Mr.D.Nallathambi
For Respondent : Mr.K.Sreekumaran Nair
JUDGMENT
Heard Mr.V.Meenakshi Sundaram, learned senior counsel for Mr.D.Nallathambi, learned counsel appearing for the appellant and Mr.K.Sreekumaran Nair, learned counsel appearing for the respondent.
2.This appeal is filed against the Judgment and Decree passed in A.S.No.38 of 2003 dated 19.07.2006 on the file of the Subordinate Court, Kuzhithurai reversing the http://www.judis.nic.in 2 Judgment and Decree in O.S.No.544 of 1996 dated 30.12.2002 on the file of the II Additional District Munsif Court, Kuzhithurai.
3.The appellant herein is the plaintiff, the respondent herein is the defendant in the suit. The appellant herein has filed a suit in O.S.No.544 of 1996 before the learned II Additional District Munsif, Kuzhithurai seeking for a prayer of partition and for separate possession of half share in the suit property and that the share of the plaintiff to be alloted on the western side in North South direction. The suit was decreed by the learned II Additional District Munsif, Kuzhithurai. Against the Judgment and decree, the respondent herein has filed an appeal in A.S.No.38 of 2003 before the learned Sub Judge, Kuzhithurai and the appeal was allowed by reversing the Judgment and Decree passed in the trial Court. Aggrieved by the Judgment and Decree, the appellant herein has filed this second appeal.
4.The case of the plaintiff is that the plaint schedule property is a specific plot having an extent of 8 cents comprised in old survey No.3753 of Kulappuram village and in resurvey number is R.S.No.454/22A. This property originally belonged to one Sukumaran and his wife Bibi. The plaintiff has purchased the property from Sukumaran on 26.12.1994. Though entire 8 cents was mentioned as the sale property, the vendor is entitled only to ½ of the 8 cents of land. The plaintiff was in possession and enjoyment of the western half of the property. The defendant has purchased the other half of the property http://www.judis.nic.in from Bibi and the remaining half property belonged to the defendant. The 3 defendant is trying to remove sand from the suit property for manufacturing bricks whereas the property is not yet partitioned and that there will be inconvenience for the plaintiff and there was an attempt to remove sand on 13.08.1996 and 25.08.1996 and it is prayed that the suit property to be partitioned.
5.The case of the defendant is that the plaintiff is not having any right or joint right over the property. The suit property and another 8 cents of land was purchased by the parents of Bibi on 02.11.1988 as sridhana property. The name of Sukumaran was included in the sale deed just because he was the husband of Bibi. Sukumaran was not having any right over the property and Sukumaran will only be a Trustee. The property is the sridhana property of Bibi and the absolute owner is only Bibi. Sukumaran and Bibi got divorced. Sukumaran re-married someone else and the sale deed is not valid. The sale deed was registered at Kerala in Parasalai whereas the property is within the jurisdiction of Kollamkodu Sub Registrar office. The suit property was purchased by the defendant from Bibi and the plaintiff is not entitled to get half share in the property.
6.This Court by an order dated 28.11.2018, has admitted the second appeal and has framed the following substantial questions of law, which are as follows:
“(1)Whether the pleading of the defendant that the suit property was purchased by the parents of Bivi (P.W.3) in the name of the said Bivi and her husband Sugumaran is not hit by the provisions of Section 3 of the Prohibition of Benomi Property http://www.judis.nic.in Transaction Act, 1988?4
(2)Whether the said purchase of the property could be considered as dowry within the meaning of Sections 2 and 3 of the Dowry Prohibition Act, 1961?
(3)Whether the finding of the lower Appellate Court that the sale deed dated 26.12.1994 is valid, in view of its registration at Parasala in Kerala?” Issue no.1:
7.On the side of the appellant, it is stated that the pleadings of the defendant is hit by the provisions of Section 3 of the Prohibition of Benomi Property Transaction Act, 1988. On the side of the appellant, it is stated that the appellant has purchased the property from one Sukumaran who was the husband of one Bibi and that Bibi was the vendor of the defendant and that the property was a joint property of Sukumaran and Bibi as per Ex.A5, sale deed dated 02.11.1988, and that the plaintiff purchased the suit property in the year 1994 under Ex.A1. It is stated that the defendant purchased the property from one Bibi on 16.11.1995 through Ex.B1 and the claim of the respondent is that though the property was purchased in the name of Sukumaran, this property was actually purchased only by the parents of Bibi in the name of their daughter and in the name of their son-in-law as a marriage gift.
8.On the side of the appellant, it is stated that the First Appellate Court has failed to consider that proving the sale deed as benami transaction is vested with the defendant and not with the plaintiff and whereas the first Appellate Court wrongly presumed the deposition of P.W.1 and come to a wrong conclusion that there was no specific http://www.judis.nic.in denial on the part of the plaintiff and that he has accepted such a custom. 5
Eventhough if the custom was accepted that does not mean that the plaintiff has accepted that the suit property was gifted to him by the parents of his wife and that under Sections 3 and 4 of the Prohibition of Benami Transaction Act, the exemption was given only for two transactions which is only for the purchase of property in the name of wife and the second is for the purchase of unmarried daughter and that the transaction is alleged to have been made in the name of son-in-law and in the name of a married daughter and that this alleged transaction is hit by the Binomi Transaction Act. On the side of the appellant, it is further stated that the property was purchased by Sukumaran and Bibi jointly and that the property belonged to Sukumaran and Bibi. The claim of the defendant is hit by the provisions of Section 3 of the Prohibition of Benami Transaction Act.
9.Admittedly the suit property was purchased in the name of Sukumaran and Bibi in the year 1998. The registration was done after 10 months from the date of marriage. The person who claim benami transaction has to prove the same and it is not the duty of the plaintiff to disprove the benami transaction. As per the Section 3 of Prohibition of Benami Transaction Act, this transaction is not exempted. This transaction is not an exempted transaction and it is hit by the provisions of Prohibition of Binomi Transaction Act.
Issue no.2:
http://www.judis.nic.in 10.On the side of the appellant, it is stated that the purchase of the property 6 could not be considered as dowry within the meaning of the Sections 2 and 3 of the Dowry Prohibition Act and that this property was the joint property of one Sukumaran and Bibi and that this property was not a sridhana property as alleged by the respondent.
11.On the side of the respondent, it is stated that wife's father has purchased the property in the name of his daughter and his son-in-law and under the Dowry Prohibition Act, the husband is only considered as a Trustee. The first Appellate Court has correctly allowed the appeal and the first Appellate Court has correctly pointed out that the husband did not deny the custom prevailing in the particular area and in the particular community in gifting such sridhana property in the name of both the bride and bridegroom.
12.On the side of the respondent, it is stated that there was a custom prevailing in the particular area and in the particular community gifting immovable property in the name of bride and bridegroom at the time of marriage. On the side of the respondent, it is stated that this property was a sridhana property which comes under the meaning of Sections 2 and 3 of the Dowry Prohibition Act and the appellant is only a Trustee under the Dowry Prohibition Act.
13.On the side of the appellant, it is stated that the first Appellate Court has come to http://www.judis.nic.in the conclusion that the plaintiff did not deny the custom and has perused that 7 he has accepted the custom whereas the plaintiff has deposed that he was not aware of the custom. It is stated that this deposition cannot be presumed as an acceptance of such a custom.
14.On the side of the respondent, it is stated that the source of income for the respondent vendor's parents is proved by the evidence of the vendor and that even P.W.2 has accepted that the parents of Bibi were running a hotel and the evidence of the vendors of the respondent proves that this property was a sridhana property of Bibi and that the plaintiff's vendor was only a trustee.
15.On the side of the appellant, it is stated that this property was not purchased at the time of marriage and this property was purchased 10 months after from the date of marriage and that this property was not a sridhana property and that custom of gifting immovable property as sridhana was not proved by the defendant and that it is not the duty of the plaintiff to disprove the custom and that the first Appellate Court committed a mistake in presuming the ignorance of P.W.2 regarding any such custom as an admission of the custom and that there is absolutely no evidence to prove the said custom.
16.On the side of the respondent, it is stated that under Sections 3 and 5 of the Dowry Prohibition Act, this transaction is valid. The beneficial interest in the transaction http://www.judis.nic.in is with the woman and the taker is only a Trustee. 8
17.The learned counsel appearing for the respondent relied on the Judgment passed by the Kerala High Court in the case of Moiliakiriath Abbas v. Meeyanathu Kunhipathu and another in the case AIR 1975 Kerala 129, which reads as follows:
“In this suit, it was found that the document is a void document prohibited by the provisions of the Dowry Prohibition Act.”
18.The learned counsel appearing for the respondent relied on the Judgment passed by the Hon'ble Supreme Court in the case of Vinod Kumar Dhall v. Dharmapal Dhall (Deceased) through his Lrs. And others in the case 2018 (6) CTC 668, which reads as follows:
“Section 4(3) of the Act makes it clear that where a person in whose name a property is held as coparcener in Hindu Undivided Family and the property is held for the benefits of the coparcener in the property, provisions of Section 4 containing prohibition of the right to recover the property held benami would not be applicable. The bar of the appellant is not applicable to a transaction as contained in Section 4(3)(a) & (b). If the property is held in fiduciary capacity or is held as a Trustee for the benefits of other person for whom he is a Trustee or towards whom he stands in such capacity.”
19.A custom of gifting immovable property as the sridhana in the name of Bride and bridegroom is not proved by examination of independent witness and that mere evidence of P.W.2 that he was not aware of any such custom cannot be presumed http://www.judis.nic.in 9 as an admission such custom. Even if it is admitted that such custom was prevailing in that area, it cannot be presumed to have received immovable property as sridhana.
Though the parents are running a hotel as admitted by the vendor of the plaintiff, this Court cannot presume that the consideration was paid by them. There is no documentary evidence to prove that the consideration was paid by the parents of Bibi and the claim of the respondent that the transaction is a dowry within the meaning of Dowry Prohibition Act is unsustainable.
Issue no.3:
20.On the side of respondent, it is stated that the sale deed of the plaintiff is invalid in view of its registration in Parasala in Kerala. On the side of the respondent, it is stated that to defraud payment of stamp duty, this document Ex.A1 was registered at Parasala, Sub Registrar office instead of Kollamkudu Sub Register office.
21.The learned counsel appearing for the respondent relied on the Judgment passed by this Court in the case of M.Manoharadhas v. C.Arumughaperumal Pillai and another reported in 2003 (1) CTC 539, which reads as follows:
“Vendor and purchaser included strip of land falling within jurisdiction of Parasala Registrar as security to enable registration of land in Kanyakumari District-Vendor did not possess or own strip of land situate in Kerala State and it was fictitious-Sale Deed is illegal and void in its entirely as it constitutes fraud on Registration.” http://www.judis.nic.in 10
22.On the side of the appellant, it is stated that before the amendment of the Registration Act, 1997, the registration before some other register office is permissible, if a piece of land in the sale deed is within the jurisdiction of that sub register office. It is further stated that even if a document was registered in some other Registrar office, the same can be set right by paying penalty and registration fees and that the said document Ex.A1 contain two properties, one is the suit property and other property is a property within the jurisdiction of Parasala Sub Registrar office and the appellant has paid the necessary penalty and registration fees but the lower Appellate Court has rejected the petition for marking those documents in I.A.No.156 of 2006 stating that the documents are subsequent to the filing of the suit.
23.On the side of the appellant, it is stated that the registration before other Sub Registrar prior to 1997 amendment is not hit by the registration act and even that discrepancy was set right by payment of penalty which is permissible in law.
24.The learned counsel appearing for the appellant relied on the Judgment passed by this Court in the case of Gopi and others v. H.David and others reported in 2011 (1) CTC 694, which reads as follows:
“Mere inclusion of property without any intention to commit fraud on Registration Law will not render registration void- There should be strong evidence to prove collusion and fraud to http://www.judis.nic.in invoke Section 28-Burden of proof lies on person who attacks validity 11 of registration-In absence of collusion and fraud between parties Sale Deed registered is not hit by Section 28.”
25.The learned counsel appearing for the appellant relied on the Judgment passed by this Court in the case of M.Mohamed Kassim and others v. C.RajaramPillai and others reported in 1998 (1) MLJ 447 on the similar issue.
26.On the side of the respondent, it is stated that Ex.A1 document is not valid and there was no such property in Parasala and the purchase of the property in Parasala was only imaginary purchase and that the plaintiff was not aware of any of the particulars of theParasala property and that the document Ex.A1 is invalid. On the side of the appellant, it is stated that both P.W.1 and the vendor, P.W.2 have deposed that the property was near the Railway Station in Parasala. There is cogency in the evidence and the plaintiff being a lady was not aware of the other particulars.
27.Ex.A1 is registered in Parasala. The sale deed contain two properties and that the first property was the suit property and the second property was 2 cents in Parasala. Before the amendment in 1977, such registration at Parasala was permissible.
It seems subsequently the appellant has set right the same by paying the Registration fee and by paying the penalty. It is the duty of the person who is denying a registered document to prove that the document is invalid. The respondent has not come forward to examine any witness to prove that this document is not valid and the property in http://www.judis.nic.in 12 R. THARANI, J.
mrn Parasala was an imaginary property. Hence, it is the decided that the sale deed registered in Kerala is not invalid in view of the Registration Act prior to 1977.
28.Hence, it is decided that the appeal is to be allowed by setting aside the Judgment and Decree passed in A.S.No.38 of 2003 dated 19.07.2006 on the file of the Subordinate Court, Kuzhithurai. This Second Appeal is allowed by confirming the Judgment and Decree passed in O.S.No.544 of 1996 dated 30.12.2002 on the file of the II Additional District Munsif Court, Kuzhithurai. No Costs. Consequently, M.P.(MD)No.1 of 2007 is closed.
15.02.2019
Index : Yes/No
Internet : Yes/No
Mrn
To
1.The Subordinate Judge, Kuzhithurai.
2.The II Additional District Munsif, Kuzhithurai.
3.The V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
S.A.(MD)No.125 of 2007
15.02.2019
http://www.judis.nic.in