Karnataka High Court
Smt.Sushila vs Sri.Rajesh on 11 October, 2023
-1-
NC: 2023:KHC-D:12313
RFA No. 100289 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 11TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 100289 OF 2016 (PAR/POS)
BETWEEN:
1. SMT. SUSHILA W/O NAGOSA JADI,
AGE: 72 YEARS, OCC: HOUSEHOLD WORK,
R/O: H.NO.13, BAILAPPANAVAR NAGAR,
HUBBALLI-29.
2. SRI. ANAND S/O NAGOSA JADI,
AGE: 47 YEARS, OCC: BUSINESS,
R/O: H.NO.13, BAILAPPANAVAR NAGAR,
HUBBALLI-29.
2A. SMT. AMBUJA W/O ANAND JADI,
AGE: 50 YEARS, OCC: HOUSEWIFE,
R/O:NO.13, NEAR OAKS HOTELL,
JADI BUILDING, BAIAPPANAVAR NAGAR,
HUBBALLI-580029.
2B. MANISH S/O ANAND JADI,
AGE: 23 YEARS, OCC: SERVICE,
Digitally
R/O:NO.13, NEAR OAKS HOTELL,
signed by
VN JADI BUILDING, BAIAPPANAVAR NAGAR,
VN BADIGER
BADIGER Date:
2023.11.09
HUBBALLI-580029.
11:52:59
+0530
2C. KEDAR S/O ANAND JADI,
AGE: 21 YEARS, OCC: STUDENT,
R/O:NO.13, NEAR OAKS HOTELL,
JADI BUILDING, BAIAPPANAVAR NAGAR,
HUBBALLI-580029.
2D. KUMARI EKTA D/O ANAND JADI,
AGE: 18 YEARS, OCC: STUDENT,
R/O:NO.13, NEAR OAKS HOTELL,
JADI BUILDING, BAIAPPANAVAR NAGAR,
HUBBALLI-580029.
-2-
NC: 2023:KHC-D:12313
RFA No. 100289 of 2016
3. SRI. RAMESH S/O NAGOSA JADI,
AGE: 45 YEARS, OCC: BUSINESS,
R/O: H.NO.13, BAILAPPANAVAR NAGAR,
HUBBALLI-29.
...APPELLANTS
(BY SRI. VINOD PAWAR, ADVOCATE)
AND:
1. SRI.RAJESH S/O NAGOSA JADI,
AGE: 51 YEARS, OCC: BUSINESS,
R/O: H.NO.29, GOLDEN PARK,
VIJAYANAGAR EXTENSION, HUBBALLI-31.
2. THE MANAGER,
GRUHA FINANCE LTD., HUBBALLI BRANCH,
HUBBALLI.
3. SMT. RAJASHRI W/O CHANDRASEKHAR KATHARE,
AGE: 52 YEARS, OCC: HOUSEHOLD,
D.NO.150, 5TH CROSS, 4TH MAIN ROAD,
MALLESWARAM, BENGALURU.
4. SRI. ANAND S/O CHANNAPPA ARALIKATTI,
AGE: 43 YEARS, OCC: BUSINESS,
R/O: BAMMAPUR ONI, HUBBALLI-28.
5. SRI. ASHOK S/O CHANNAPPA ARALIKATTI,
AGE: 41 YEARS, OCC: BUSINESS,
R/O: BAMMAPUR ONI, HUBBALLI-28.
...RESPONDENTS
(BY SRI. NOHA S EDWARD, ADVOCATE FOR
SRI. K.S. KORISHETTAR ADVOCATE FOR R1;
SRI. MAHESH WODEYAR, ADVOCATE FOR R3;
NOTICE TO R2, R4 AND R5 IS DISPENSED WITH)
THIS RFA IS FILED UNDER SEC. 96 AND ORDER 41 RULE 1
OF CPC, 1908, AGAINST THE JUDGMENT AND DECREE DTD:
26.09.2016 PASSED IN O.S.NO.100/2011 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI, PARTLY
DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION AND MESNE PROFIT.
-3-
NC: 2023:KHC-D:12313
RFA No. 100289 of 2016
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Decree for partition is granted in favour of a son against his mother, two brothers and sister in respect of Item 'A' schedule property. The suit is dismissed in respect of Item 'B' schedule property. Defendants No.1 to 3 are in appeal aggrieved by the aforementioned judgment and decree in O.S.No.100/2011 on the file of II Additional Senior Civil Judge, Hubballi.
2. Defendants No.4 and 5 are the tenants occupying some portion of the suit property which is partly converted into a commercial complex. The plaintiff has filed suit on the premise that the suit schedule property which was earlier a residential house was purchased under a registered sale deed dated 01.09.1989.
3. The plaintiff claims that Rs.5,00,000/- is the sale consideration amount. Rs.2,50,000/- is the loan raised from Life Insurance Corporation of India to -4- NC: 2023:KHC-D:12313 RFA No. 100289 of 2016 purchase the property and Rs.2,50,000/- is paid by the plaintiff to defendants No.2 and 3 to purchase the said property. It is further stated that when the property was purchased, it contained a RCC house and open space and in the year 2002 the plaintiff and defendants No.2 and 3 have constructed a commercial complex consisting of six shops in the said property.
4. The plaintiff further claims that defendant No.1 - mother did not have her independent income to purchase the property and since the contribution is made by the plaintiff and defendants No.2 and 3, the plaintiff claims that it is the joint family property and claimed partition of 1/4th share. But, later the defendants raised a contention that the daughter is also a necessary party. Hence, the daughter is impleaded. As such, in all, the plaintiff claims 1/5th share.
5. Defendant No.1 filed written statement and raised a contention that the property is the property purchased from her own income. The plaintiff's claim that -5- NC: 2023:KHC-D:12313 RFA No. 100289 of 2016 the suit schedule property is the joint family property is seriously disputed by defendant No.1. Thus, defendant No.1 prayed for dismissal of the suit. Defendants No.2 and 3 also filed written statement. They disputed the plaintiff's claim and they supported the stand of the mother and prayed for dismissal of the suit. The daughter who is arrayed as defendant No.5 did not file written statement.
6. The trial Court dismissed the suit in respect of 'B' schedule property on the premise that the property does not belong to the family and granted a decree in respect of 'A' schedule property holding that the plaintiff has established that the suit property at 'A' schedule is the joint family property.
7. Defendants No.1 to 3 are in appeal assailing the correctness of the judgment and decree granting 1/5th share in favour of the plaintiff.
8. Sri.Vinod Pawar, the learned counsel appearing for the appellants would contend that the suit property is -6- NC: 2023:KHC-D:12313 RFA No. 100289 of 2016 self-acquired property of defendant No.1 - mother and she had borrowed the loan from Life Insurance Corporation of India and she has repaid the loan and that being the position, the decree for partition in respect of the property purchased in the name of the mother is erroneous. He would also urge that the property was intended to be purchased for the benefit of defendant No.1 - mother and this fact is averred in paragraph No.4 of the plaint and this being the position, assuming that the property is purchased by contributing funds by the sons, the said contribution does not take away the exclusive ownership of defendant No.1 over Item 'A' schedule property.
9. It is also urged that the plaintiff's contention that he has contributed to purchase the property is not established by producing any evidence. Thus, he would urge that the trial Court could not have passed a decree for partition. He would also refer to Section 14(1) of Hindu Succession Act, 1956 (for short, 'Act of 1956') to support his contention that the property should be declared as the -7- NC: 2023:KHC-D:12313 RFA No. 100289 of 2016 absolute property of defendant No.1 - mother as this is the property possessed by her and the father had intended that the property should be purchased in the name of the mother to ensure that she has necessary financial security after his demise. Thus, he would urge that Section 14 of Act of 1956 squarely applies to the case and the property should be treated as the self-acquired property of the mother.
10. In support of his contention, the learned counsel for the appellants has relied upon the judgment of the Apex Court in the case of Gangamma and Others vs. G.Nagarathnamma and Others reported in (2009) 15 SCC 756 and the judgment of Co-ordinate Bench of this Court in the case of Gowramma vs. Rangappa reported in KCCR 2015 4 3041. He would also refer to the judgment of Co-ordinate Bench of this Court in RFA No.2027/2019 decided on 01.08.2022 to substantiate the contention that the property in the name of a female should be treated as self-acquired property of the female -8- NC: 2023:KHC-D:12313 RFA No. 100289 of 2016 by applying Section 3(2) of the Benami Transactions (Prohibition) Act, 1988 (for short, 'Act of 1988') and Section 14(1) of Hindu Succession Act, 1956.
11. Learned counsel for respondent No.1 - plaintiff would urge that the property is purchased by the contribution made by the sons is very much established by producing cogent evidence and there are enough circumstances to indicate that the property in question is the joint family property and the trial Court has taken into consideration all the relevant factors and has concluded that the plaintiff is having 1/5th share in the suit schedule properties.
12. It is also urged on behalf of the plaintiff that Section 14(1) of the Act of 1956 cannot have any application in this case as there is no such pleading in the written statement that the property is given to the mother in recognition of her pre-existing right. It is also urged before this Court that once the evidence is led to establish that the family members contributed to purchase the -9- NC: 2023:KHC-D:12313 RFA No. 100289 of 2016 property, defendant No.1 - mother cannot claim that the property is the self-acquired property as the intention was exclusively clear to purchase the property in the name of the mother for a limited purpose for following the wish of the father who wanted the property to be in the name of the mother as a security for her sustenance.
13. It is also his contention that under Section 4 (3)(b) of the Act of 1988, the mother holding the property in a fiduciary capacity cannot resist a suit for partition filed by the son. He would urge that Section 3(2) of the Act of 1988 has no application to the case as the property is not purchased by the husband in the name of the wife.
14. In support of his contention, the learned counsel would refer to the following judgments:
i. Sri Marcel Martins vs. M. Printer and Others reported in 2012 5 SCC 342 ii. M. Sivadasan (dead) through Lrs and Others vs. A. Soudamini (dead) through Lrs and others reported in 2023 SCC Online SC 1078
- 10 -
NC: 2023:KHC-D:12313 RFA No. 100289 of 2016
15. Sri.Mahesh Wodeyar, the learned counsel appearing for defendant No.5 - daughter would urge before the Court that the loan was raised by all the children to purchase the property and the mother cannot claim the property as her exclusive property.
16. This Court has considered the contentions raised at the bar.
17. The following points would arise for consideration:
i. Whether the appellants are able to establish that suit 'A' schedule property is self-acquired property of defendant No.1?
ii. Whether defendant No.1 - appellant No.1 can claim absolute ownership under Section 3(2) of the Act of 1988?
iii. Whether appellant No.1 becomes the absolute owner of suit 'A' schedule property under Section 14(1) of Act of 1956?
- 11 -
NC: 2023:KHC-D:12313 RFA No. 100289 of 2016
18. Regarding point No.1, the plaintiff claims that the property is purchased for Rs.5 lacs through a registered sale deed dated 01.09.1989, by raising loan from the Life Insurance Corporation of India. It is claimed that he has contributed Rs.2,50,000/- and remaining Rs.2,50,000/- is raised from Life Insurance Corporation of India as loan. No material is placed on record to hold that he paid Rs.2,50,000/- independently as claimed by the plaintiff. However, what is forthcoming from the record is, loan was raised from Life Insurance Corporation of India to purchase suit 'A' schedule property. Suit 'A' schedule property was mortgaged as security for the loan. It is also forthcoming that insurance policies issued by the Life Insurance Corporation of India were pledged as a security for the loan. Unfortunately, both parties before the trial Court have not produced the loan agreement from Life Insurance Corporation of India to ascertain as to who the borrower is and who are the guarantors. The plaintiff claims that all the children including all the male issues including the plaintiff and the father and the mother were
- 12 -
NC: 2023:KHC-D:12313 RFA No. 100289 of 2016 the co-borrowers, whereas defendant No.1 claims that defendant No.1 alone is the borrower and rest of the family members were the guarantors. Direct evidence on this point is not available as the loan records are alleged to have been destroyed by the Life Insurance Corporation of India and no attempt is made by either of the parties to produce any proof from the Life Insurance Corporation of India relating to the loan which was admittedly raised to purchase the property in the year 1989.
19. However, to substantiate the contention that the plaintiff is also a co-borrower, the plaintiff has produced Ex.P.37, the notice issued by the advocate for Life Insurance Corporation of India. The said notice is dated 22.12.1992. The said notice is addressed to Rajesh Nagosa Jadi, Anand Nagosa Jadi, Nagosa Narasingsa Jadi and Sushilabai Nagosa Jadi. Rajesh is the plaintiff. The first paragraph in the said notice reads as under:
- 13 -
NC: 2023:KHC-D:12313 RFA No. 100289 of 2016 "That all of you jointly applied for the loan of Rs.2,50,000/- to purchase a house under own your home scheme sponsored by my client. In pursuance of the same my client agree to advance the loan against the equitable mortgage of the property CTS No.2927/A-B at Nagashettikoppa, Hubli along with buildings, out houses thereon."
20. The relevant portion of second paragraph reads as under:
"The said amount has been advanced to you on 1.9.89 under loan account M.L.A/c No.69500556"
21. By referring to the said letter, it is urged that the said letter in exquisite terms indicates that the loan is advanced to all the four persons named in the notice and according to the plaintiff the first person named in the notice is the plaintiff. In addition to that, the plaintiff has also produced Ex.P.38, the fire insurance policy, which reveals that the policy is issued in respect of the property which is purchased by availing loan. It also refers to loan account No.M.L. A/c No.69500556. Ex.P.38 also reveals
- 14 -
NC: 2023:KHC-D:12313 RFA No. 100289 of 2016 that the property is mortgaged. Admittedly said property is suit 'A' schedule property.
22. By referring to the receipts produced by way of additional document by the appellants, it is urged that the receipts so produced relating to repayment of the portion of the loan amount would also reveal that the plaintiff has repaid portion of the loan amount and it is urged that these are the strong circumstances and documentary evidence which would suggest that the property was never intended to be the exclusive property of the mother.
23. Replying to the said contention, Sri.Vinod Pawar would urge that the loan amount is paid by the mother alone and merely because the notice is addressed to the plaintiff and remaining two sons of defendant No.1, it cannot be construed that all the persons named in the notice are the co-borrowers. To substantiate his case he produced the copy of the notice issued by the advocate for Life Insurance Corporation of India which is dated 16.02.1996. Paragraph No.4 of the notice reads as under:
- 15 -
NC: 2023:KHC-D:12313 RFA No. 100289 of 2016 "4. You have also assigned the life insurance policies bearing nos.64217787, 75541768, 64323639, and 75540643 in favour of my clients on 1.9.89 as collateral security, but those policies have been lapsed without accruing any benefits due to non-payment of premia."
24. Referring to paragraph No.4, he would urge that since the insurance policies standing in the name of the plaintiff and sons of defendant No.1 are pledged as security, the loan should be treated as loan advanced to the mother and rest of the parties to the loan agreement were the guarantors and he would also urge before this Court that the entire loan amount is repaid by the mother.
Though some of the receipts are standing in the name of the sons, the receipts are produced by the mother and this factor should be taken into consideration to hold that the mother has repaid the loan amount.
25. By referring to the word 'collateral security' referred to in the notice, it is urged that the insurance
- 16 -
NC: 2023:KHC-D:12313 RFA No. 100289 of 2016 policies pledged should be treated as securities pledged by the guarantors and not the borrowers. The word 'collateral security' as defined in oxford dictionary reads as under:
"Denoting something pledged in addition to the main obligation of a contract."
26. The word 'collateral security' would only mean an additional security, it does not mean that the security offered by the guarantor. It can either be a security offered by the guarantor or a security offered by the borrower. By referring to paragraph No.4 in the notice dated 16.02.1996, this Court cannot hold that the plaintiff is not a borrower or cannot hold that the mother alone is the borrower of the loan amount and it is also necessary to look into the other evidence relating to the contribution alleged to have been made by the plaintiff or the payment alleged to have been made by defendant No.1.
27. As already noticed, the plaintiff is not in a position to establish that he has paid Rs.2,00,000/- independently apart from Rs.2,50,000/- raised by way of
- 17 -
NC: 2023:KHC-D:12313 RFA No. 100289 of 2016 loan. However, what is to be established is that loan of Rs.2,50,000/- is raised and property is purchased. It is also forthcoming from the evidence already discussed that the plaintiff appears to be one of the co-borrowers of the loan advanced by the Life Corporation of India. Now the question is who has repaid the loan amount. Again, the evidence is not forthcoming to convincingly hold that a particular person has repaid the loan amount. It is not the defence of the mother that she has repaid the loan amount in her pleading. Though in her pleading she has raised a contention that she has purchased the property by raising loan, there is no pleading to the effect that she has repaid the loan amount. Ignoring the pleading, even if the evidence is assessed, it is not forthcoming from the records that the mother has repaid the entire loan amount. On the other hand, it is forthcoming that the plaintiff has repaid Rs.10,000/- on 11.01.1995. The receipt also refers to the loan amount referred to above and one more receipt is for Rs.7,000/- and this is said to have been paid by A.N.Jadi and Anand on 21.06.1997. Those two
- 18 -
NC: 2023:KHC-D:12313 RFA No. 100289 of 2016 documents are produced by defendant No.1/appellant No.1. These documents are not conclusive enough to hold that defendant No.1 alone has repaid the loan amount and it is also apparent from the records that the loan amount is now repaid and amount is outstanding towards Life Insurance Corporation of India which advanced the loan to purchase the property.
28. It is also relevant to refer to Ex.P.38 i.e., fire insurance policy issued in respect of suit 'A' schedule property. The fire insurance policy is issued in the name of plaintiff. So cumulative effect of all these evidence referred to above would lead to the inference that the property is purchased jointly by the plaintiff and defendants No.1, 2 and 3 by pooling the amount. Exact contribution of each of the parties cannot be decided for want of evidence in this regard.
29. Further, inference can be drawn that the property was jointly purchased as the plaintiff and defendants No.1, 2 and 3 are shown as co-borrowers in
- 19 -
NC: 2023:KHC-D:12313 RFA No. 100289 of 2016 the notice marked at Ex.P.37. Though the said notice is issued by the advocate for Life Insurance Corporation of India, nothing is suggested in the cross-examination to disbelieve the notice issued on behalf of Life Insurance Corporation of India. Defendant No.1 has not objected to the contents of the notice. Under these circumstances, the Court has to hold that the notice in the absence of a specific evidence relating to the loan agreement or statement of account can be relied upon to hold that the loan account was opened jointly in the name of the plaintiff and defendants No.1, 2 and 3 and there is no dispute that the loan was availed to purchase of property and that being the position, this Court has to hold that the property is purchased by the plaintiff as well as defendants No.1 to 3 by pooling the amount.
30. It is also relevant to note that while cross- examining PW.1, the counsel for defendant No.1 has suggested PW.1 as under:
- 20 -
NC: 2023:KHC-D:12313 RFA No. 100289 of 2016 "J¯ï.L.¹.AiÀÄ°è ¸Á® ªÀiÁr ºÀħâ½îAiÀÄ°è£À ¨ÉÊ®¥Àà£ÀªÀgÀ£ÀUÀgÀzÀ°è£À ¸ÀévÀÛ£ÀÄß ¤ªÀÄä vÁ¬ÄAiÀÄ ºÉ¸Àj£À°è Rjâ¹¢Ýj J£À߯ÁV CzÀÄ ¤d J£ÀÄߪÀgÀÄ."
31. Referring to this suggestion, the learned counsel for the plaintiff would urge that the fact that loan is borrowed by the plaintiff to purchase the property in the name of the mother is very much suggested in the cross- examination. The learned counsel for the appellants, Sri.Vinod Pawar would urge before this Court that a stray sentence in the cross-examination should not be construed as a suggestion or admission to hold that the loan is borrowed in the joint account of the plaintiff and defendants No.1 to 3.
32. Though Sri.Vinod Pawar is right in saying that a stray sentence cannot be construed as an admission or suggestion in the cross-examination, should be understood in the backdrop of the other evidence already discussed supra. If the evidence is considered in the light of the other evidence already discussed supra, this Court is of
- 21 -
NC: 2023:KHC-D:12313 RFA No. 100289 of 2016 the view that defendant No.1 admits that the loan is raised by the plaintiff to purchase the property.
33. It is also forthcoming in the cross-examination of DW.1, the mother who has stated that the property was mortgaged in favour of Gruha finance and Rs.20,00,000/- was availed as loan and it is further stated by her in the cross-examination that the loan is borrowed by the plaintiff, defendants No.2 and 3 who are her sons. This is one of the circumstances which would suggest that the property was treated as joint property of plaintiff and defendants No.1 and 2. Under these circumstances, this Court is of the view that the claim of the plaintiff that he has also contributed to purchase the property along with defendants No.2 and 3 stands established.
34. The next question is whether the benefit of Section 3(2) of Act of 1988 can be conferred on the defendant to hold that defendant No.1 is the absolute owner of the said property.
- 22 -
NC: 2023:KHC-D:12313 RFA No. 100289 of 2016
35. Section 3 of the Act of 1988 reads as under:
" Prohibition of benami transactions.--
(1) No person shall enter into any benami transaction. 1[(2) Nothing in sub-section (1) shall apply to--
(a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter;
(b) the securities held by a-- (i) depository as registered owner under sub-
section (1) of section 10 of the Depositories Act, 1996
(ii) participant as an agent of a depository.
Explanation.--The expressions "depository" and "Participants shall have the meanings respectively assigned to them in clauses (e) and (g) of sub- section (1) of section 2 of the Depositories Act, 1996].
(3) Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an
- 23 -
NC: 2023:KHC-D:12313 RFA No. 100289 of 2016 offence under this section shall be non-cognizable and bailable.
36. By reading of Section 3 of Act of 1988, it can be noticed that benami transaction is prohibited after the commencement of Act of 1988 which came into force on 5th September 1988. Though benami transaction is prohibited, Section 3(1)(2) provides for a presumption that the property purchased in the name of the wife or unmarried daughter shall be presumed to be their property or shall be presumed to be property purchased for their benefit unless the contrary is proved. In other words, Section 3(1)(2) enables the husband to purchase the property in the name of his wife or enables the father to purchase the property in the name of the unmarried daughter. If such purchase is made either for the wife or for the unmarried daughter, initial presumption is property is purchased for the benefit of the wife or daughter. However, this is rebuttable presumption if it is shown to be or otherwise as the property purchased for wife or the
- 24 -
NC: 2023:KHC-D:12313 RFA No. 100289 of 2016 daughter. The Court can hold that the property is purchased benami by the father or the husband as the case may be.
37. In this case, to attract Section 3(1)(2) in the first instance, defendant No.1 has to raise a plea that the property is purchased by the husband for her benefit. If the written statement is referred, defendant No.1 in the written statement has taken a contention that the property is purchased from her own independent income and in the additional written statement she has raised a contention that the property is purchased by raising loan. Thus, it is not the case of the defendant No.1 that her husband has purchased the property in her name.
38. This being the position, the requirement of Section 3 is not fulfilled. Section 3 does not apply to the transaction referred to in the plaint. Even in the plaint, the plaintiff does not say that the property is purchased by the father from his fund. Though Sri.Vinod Pawar would urge that the father has also contributed to purchase the
- 25 -
NC: 2023:KHC-D:12313 RFA No. 100289 of 2016 property as his insurance policy was pledged as security for the loan, the said contribution cannot be construed as a contribution to hold that the property is purchased by the father in the name of the mother so as to attract Section 3 (1)(2) of the Act of 1988. Thus, the benefit of Section 3(1)(2) is not available to defendant No.1.
39. It is also relevant to note that it is not the case of defendant No.1 that the transaction is a benami transaction. However, what is required to be noticed is plaintiff has taken a stand that the transaction is a benami transaction. In the sense the property is purchased by the plaintiff, defendants No.2 and 3 in the name of defendant No.1 for the benefit of the family comprising the plaintiff, defendants No.2 and 3 and also defendant No.1.
40. Learned counsel for the plaintiff would refer to Section 4 of the Act of 1988. The said Section reads as under:
- 26 -
NC: 2023:KHC-D:12313 RFA No. 100289 of 2016
4. Prohibition of the right to recover property held benami-
(1) 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.
(3) Nothing in this section shall apply,-- (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity.
- 27 -
NC: 2023:KHC-D:12313 RFA No. 100289 of 2016
41. Section 4(3)(b) is an exception to Section 4(1) and (2) which prohibit a suit or defence based on benami transaction. Section 4(3)(b) applies in a situation where the property is purchased by a person standing in fiduciary capacity. There cannot be any dispute that the plaintiff and defendant No.1, the son and the mother are standing in fiduciary capacity. The relationship suggests it. The property is purchased in the name of the mother. The plaintiff claims that he has purchased the property in the name of the mother along with the contribution made by defendants No.2 and 3. This being the position, this Court has to hold that purchase of the property in the name of the mother is a transaction which is squarely covered under Section 4(1)(3)(b) of the Act of 1988.
42. To substantiate his contention, the learned counsel for the plaintiff has also referred to the judgment of the Apex Court in the case of Sri Marcel Martins, supra. In the said case the Apex Court incorporated expression 'fiduciary capacity' appearing in Section
- 28 -
NC: 2023:KHC-D:12313 RFA No. 100289 of 2016 4(3)(b). On perusal of the aforementioned judgment, this Court is of the view that the suit transaction in this case is also falling under Section 4(3)(b) and that being the position, there is no bar for the plaintiff to claim his share in the property as the plaintiff has established that the property is purchased by also contributing portion of the fund to purchase the property in the name of the mother.
43. Now the Court has to consider the contentions raised by the appellant No.1/defendant No.1 with reference to Section 14(1) of the Act of 1956. Section 14(1) deals with a situation where the properties of a female property possessed by a female with a limited right be enlarged into absolute right under certain circumstances. The law in this regard is well settled. One of the requirements is that the female in whose favour the property is transferred or vested with a limited right, if she had a preexisting right over the property, before such transfer or vesting, notwithstanding limited right conferred
- 29 -
NC: 2023:KHC-D:12313 RFA No. 100289 of 2016 on the female, the limited right of the female over the property will enlarge into absolute right.
44. Now the question is whether this property in the name of defendant No.1 can be construed as the property given to her in recognition of her right to maintenance. To support this contention, Sri.Vinod Pawar would refer to paragraph No.4 of the plaint, wherein it is pleaded by the plaintiff that the property is purchased in the name of defendant No.1 at the instance of the father as the father wanted to ensure some sort of financial security to the mother after his demise. By referring to this particular clause, Sri.Vinod Pawar, would urge that it is to be construed that the property is given to the mother in recognition of her right to maintenance.
45. It is relevant to note that this plea in paragraph No.4 of the plaint is seriously disputed by the mother in her written statement. The mother disputes the claim made in the aforementioned paragraph No.4 in the plaint.
- 30 -
NC: 2023:KHC-D:12313 RFA No. 100289 of 2016
46. In addition to that the mother also takes a defence that the property is self-acquired property and she does not claim to be a limited owner. It is also relevant to refer to the judgment of the Apex Court in the case of Gulabrao Balwantrao Shinde and Others vs. Chhabubai Balwantrao Shinde and Others reported in (2003) 1 SCC 212, wherein the Apex Court has held that claiming benefit of Section 14(1) of the Act of 1956 the party who seeks benefit of Section 14(1) must plea that the property is given to the female as a limited right in recognition of the existing right. No such case is made out in the pleading or before the trial Court. This being the position, this Court is unable to accept that Section 14(1) would apply to the facts and circumstances of this case.
47. It is also relevant to note that an application is filed at I.A.No.4/2023 for production of certain documents. This Court has already referred to the receipts sought to be produced along with the said application and though an application is not filed to produce the notice issued by the
- 31 -
NC: 2023:KHC-D:12313 RFA No. 100289 of 2016 advocate for Life Insurance Corporation of India i.e., noticed dated 16.02.1996, ignoring the technicality, the said document is taken on record and this Court has already made reference to the aforementioned documents in the aforementioned paragraphs of the judgment and for technical reason the application for production of document stands allowed.
48. Accordingly, the points for consideration framed above have been answered against the appellants and in favour of the respondents. Accordingly, the judgment and decree passed by the trial Court do not call for interference.
49. Hence, the following:
ORDER i. Appeal is dismissed.
ii. The impugned judgment and decree dated 26.09.2016 passed in O.S.No.100/2011 on
- 32 -
NC: 2023:KHC-D:12313 RFA No. 100289 of 2016 the file of II Additional Senior Civil Judge, Hubballi are confirmed.
iii. I.A.No.4/2023 is allowed.
Sd/-
JUDGE SH List No.: 1 Sl No.: 43