Madras High Court
Arumugam vs Patchamuthu Gounder on 16 February, 2018
Author: T.Ravindran
Bench: T.Ravindran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 31.01.2018
PRONOUNCED ON : 16.02.2018
CORAM
THE HONOURABLE MR. JUSTICE T.RAVINDRAN
S. A.No.1059 of 2003
Arumugam ... Appellant
Vs.
1.Patchamuthu Gounder
2.Manoharan
3.Muthammal (deceased) ... Respondents
(RR1 & 2 are recorded as LRs
of the deceassed R3 vide order
of Court dated 30.01.2018 made
in Memo in CMP.No.9396 of 2003
dated 26.03.2007 in S.A.No.1059/03)
Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and decree dated 13.03.2003 passed in A.S.No.12 of 2000 on the file of the Subordinate Court, Dharmapuri, reversing the judgment and decree dated 21.07.2000 passed in O.S.No.17 of 1992 on the file of the District Munsif Court, Dharmapuri.
For Appellant : Mr.S.Saravana Kumar
for Mr.M.Sudhakar
For Respondent : No appearance/set exparte
Nos.1 & 2
JUDGMENT
This second appeal is directed against the the Judgment and decree dated 13.03.2003 passed in A.S.No.12 of 2000 on the file of the Subordinate Court, Dharmapuri, reversing the judgment and decree dated 21.07.2000 passed in O.S.No.17 of 1992 on the file of the District Munsif Court, Dharmapuri.
2. Parties are referred to as per their rankings in the trial Court.
3. Suit for declaration and permanent injunction.
4. The case of the plaintiff, in brief, is that the suit property belongs to the plaintiff absolutely by way of his purchase of the same from Jayabackiam under a sale deed dated 04.09.1987 for a valid consideration and pursuant to the above said sale transaction, it is only the plaintiff, who has been in possession and enjoyment of the suit property by obtaining patta, paying kist etc., the defendants have no manner of right or interest in the suit property and the first defendant, the plaintiff and one Marimuthu are brothers and in respect of the other properties belonging to them, disputes arose between them and coming to know that the plaintiff is initiating action with reference to the same, in order to prevent the same, the defendants laid a false claim in respect of the suit property with a view to grab the same and attempting to interfere with the plaintiff's possession and enjoyment of the suit property, to which, they are not entitled to and hence, the suit for appropriate reliefs.
5. The case of the defendants, in brief, is that the suit laid by the plaintiff is not maintainable either in law or on facts and it is false to state that the suit property belonged to the plaintiff by way of his purchase of the same under a sale deed dated 04.09.1987 from Jayabackiam for a valid consideration and that, he has been in possession and enjoyment of the suit property by obtaining patta, paying kist etc., and it is false to state that the defendants have no manner of right, title or interest in the suit property. It is true that the first defendant, the plaintiff and one Marimuthu are brothers and it is false to state that on account of the dispute between the parties in respect of the other properties, the defendants joined together and laid a false claim in respect of the suit property and thereby, attempting to interfere with the possession and enjoyment of the plaintiff. The first defendant is the eldest son of the family and he was employed in a Banian factory and earning income and accordingly, the first defendant had acquired various properties and it is only the first defendant, who had performed the marriage of the plaintiff and the other brother Marimuthu and also performed the marriage of his two sisters and as the first defendant had acquired extensive properties and also made attempts to obtain poromkboku property by seeking a patta and fearing that patta would not be granted to him, in case, he owns extensive properties, accordingly, it is the case of the first defendant that he had purchased the suit properties benami in the name of the plaintiff by parting with the sale consideration and further, the first defendant also purchased the another extent of 6 acres of land in Ajeepatti Village and the same had also been purchased in the name of the plaintiff by the first defendant benami and the sale agreement had been entered into only in the name of the first defendant and hence, the plaintiff cannot lay any independent claim over the suit property. The suit property is only in the possession and enjoyment of the first defendant and in this connection, a Muchalia dated 19.06.1990 was entered into between the parties, in which, the first defendant and the plaintiff had signed and the plaintiff is bound by the said muchalika and cannot act beyond the same and hence, the suit laid by the plaintiff is liable to be dismissed.
6. In support of the plaintiff's case, PWs 1 to 3 were examined and Exs.A1 to A6 were marked. On the side of the defendants, DWs 1 to 3 were examined and Exs.B1 to B4 were marked.
7. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the trial Court was pleased to decree the suit as prayed for. On appeal preferred by the defendants, the first appellate Court, on an appreciation of the materials placed, was pleased to set aside the judgment and decree of the trial Court and by way of allowing the appeal preferred by the defendants, dismissed the suit laid by the plaintiff. Impugning the same, the present second appeal has been preferred.
8. At the time of admission of the second appeal, the following substantial questions of law were formulated for consideration:
(i) Whether the lower appellate court was right in entertaining the plea of benami in spite of the provisions of Sections 3 and 4 of the Benami Transaction Prohibitions Act, 1988?
(ii) Whether the lower appellate court was right in holding that the purpose for which Ex.B2 is relied upon is collateral purpose?
9. It is not in dispute that the plaintiff, the first defendant and one Marimuthu are brothers. It is further found that the suit property has come to be acquired by way of a sale deed dated 04.09.1987 in the name of the plaintiff and the certified copy of the sale deed has been marked as Ex.A1 and the original sale deed has been marked as Ex.B1. Now, according to the plaintiff, it is he, who had acquired the suit property by way of Ex.A1 sale deed for a valid consideration from his vendor Jayabackiam and it is the further case of the plaintiff that since the purchase of the suit property, it is he, who has been in possession and enjoyment of the same by obtaining patta, paying kist etc., and according to the plaintiff, on account of the disputes between the parties in respect of certain other properties, the defendants joined together and laid a false claim in respect of the suit property, thereby denying title of the plaintiff to the same and also attempted to interfere with his possession and enjoyment and hence, according to the plaintiff, he has been constrained to lay the suit for appropriate reliefs.
10. Per contra, it is the case of the defendants that the plaintiff is not the title holder of the suit property as put forth by him in the plaint and on the other hand, the first defendant being the owner of the various properties and also, at the relevant point of time, made necessary arrangements to secure poromboke land from the Government and fearing that patta would not be granted to him, in the event of his owning extensive properties, therefore, as per the case of the first defendant, he had chosen to purchase the suit property and other properties in the name of the plaintiff benami and therefore, according to the case of the defendants, the sale consideration for the transaction of the suit property i.e. Ex.A1 was passed on only by the first defendant and it is only the first defendant, who has been in possession and enjoyment of the suit property pursuant thereof and the plaintiff is not entitled to lay any independent claim of title with reference to the suit property and it is further stated that in the Muchalika effected amongst the parties on 19.06.1990, the plaintiff had accepted the claim of title of the first defendant in respect of the suit property and the plaintiff cannot go beyond the terms of Muchalika and hence, the suit is liable to be dismissed.
11. The sale transaction involved in this matter marked as Ex.A1/B1 is dated 04.09.1987. The plaintiff claims that the suit property purchased under the said sale transaction belongs to him absolutely. Per contra, the first defendant claims that under the said transaction, it is he, who had purchased the suit property benami in the name of the plaintiff. It is contended by the plaintiff's counsel that the first defendant is barred in projecting the plea of benami after the advent of the Benami Transactions (Prohibition) Act, 1988, as per Sections 3 & 4 of the said Act and therefore, the first appellate Court had erred in non-suiting the plaintiff and upholding the benami plea of the defendants and the same requires to be set aside. The Benami Transactions (Prohibition) Act, 1988 is found to have come into force with effect from 05.09.1988 and the transaction involved in this matter is dated 04.09.1987. Therefore, it is found that prior to the coming into the force of The Benami Transactions (Prohibition) Act, 1988, the sale transaction involved in this matter had occurred and in such view of the matter, it is seen that the provisions of The Benami Transactions (Prohibition) Act, 1988, would not apply to such a transaction and this could be seen from the decisions reported in (1995) 2 SCC 630 (R.Rajagopal Reddy (Dead) by LRS. V. Padmini Chandrasekharan (Dead) by LRS.), 2011 SAR (Civil) 213 (Samittri Devi V. Sampuran Singh), (2005) 6 SCC 441 (G. Mahalingappa V. G.M.Savitha) and 2017 (1) CTC 374 (Maria Francis (Died) V. M.Vardhese @ Maria Varghese). However, inasmuch as the plea of Benami has been set out by the defendants, as rightly argued, the onus is only heavy upon the defendants to establish the said plea of benami and this could also be seen from the decision reported in AIR 2001 Allahabad 366 (Kuldeep Sharma V. Satyendra Kumar Sharma).
12. Even though the provisions of the Benami Transactions (Prohibition) Act, 1988 would not be applicable to the case at hand, as to the proof of the benami transaction what are all the factors should be established have been illuminated by the Supreme Court in the decision reported in (2007) 4 MLJ 1076 (SC) [Binapani Paul vs. Pratima Ghosh and others], which are detailed as follows:
(C) Benami Transactions Prohibition Act (45 of 1988) Benami transactions Burden of proof lies on the person, who alleges the transactions to be benami Essence of benami transaction is intention of parties concerned Such intention shrouded in a thick veil cannot be easily pierced. Burden of proof as regards the benami nature of transaction was also on the respondent. This aspect of the matter has been considered by this Court in Valliammal (D) by Lrs. v. Subramaniam and Others (2004) 7 SCC 233 wherein a Division Bench of this Court held:
13.This Court in a number of judgments has held that it is well established that burden of proving that a particular sale is benami lies on the person who alleges the transaction to be a benami. The essence of a benami transaction is the intention of the party or parties concerned and often, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises as a substitute for proof. Refer to Jaydayal Poddar v. Bibi Hazra, Krishnanand Agnihotri v. State of M.P., Thakur Bhim Singh v. Thakur Kan Singh, Pratap Singh v. Sarojini Devi and Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S.Shah. It has been held in the judgments referred to above that the question whether a particular sale is a benami or not, is largely one of fact, and for determining the question, no absolute formulas or acid test, uniformly applicable in all situations can be laid. After saying so, this Court spelt out the following six circumstances, which can be taken as a guide to determine the nature of the transaction:
(1) the source from which the purchase money came;
(2) the nature and possession of the property, after the purchase;
(3) motive, if any, for giving the transaction a benami colour;
(4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar;
(5) the custody of the title deeds after the sale; and (6) the conduct of the parties concerned in dealing with the property after the sale. (Jaydayal Poddar v. Bibi Hazral.
14. The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless, the source from where the purchase money came and the motive why the property was purchased benami are by far the most important tests for determining whether the sale standing in the name of one person, is in reality for the benefit of another. In this connection, a useful reference may be made to the decisions reported in 2003 (1) CTC 705 (George Thomas V. Smt.Srividya) and (2004) 7 SCC (Valliammal (D) By Lrs. V. Subramaniam).
13. It is not the case of the defendants, particularly, the first defendant that the plaintiff is not possessed of sufficient means to acquire the suit property by way of Ex.A1/B1. The first defendant examined as DW1 would admit that after his marriage, due to family problems, he had set out a separate residence and when he was along with his brothers viz., the plaintiff and Marimuthu were employed as weavers and accordingly, it is seen that the plaintiff was independently earning income out of his own avocation and it is thus found that the plaintiff is also possessed of income and means to acquire the properties. Accordingly, it is seen that the first defendant has not pleaded in the written statement as such that the plaintiff is not possessed of sufficient income or solvency to acquire the suit property individually. The defendants have also not pleaded or established that the plaintiff was not employed during the relevant point of time so as to enable him to purchase the suit property. It is thus seen that the case of the plaintiff that it is he, who had parted with the purchase money for acquiring the suit property cannot be easily brushed aside, particularly, when the recitals found in Ex.A1/B1 point to the same. It is thus found that as per the recitals found in Ex.A1/B1, it is only the plaintiff, who had parted with the sale consideration mentioned therein.
14. As far as the possession and enjoyment of the suit property pursuant to Ex.A1, it is the specific case of the plaintiff that it is he, who has been in possession and enjoyment of the suit property by way of obtaining patta, paying kist etc., and in this connection, the plaintiff has obtained the order of the Thasildar marked as Ex.A2, from which, we could gather that the patta in respect of the suit property hitherto in the name of the vendor Jeyabackiam had been ordered to be mutated in the name of the plaintiff by the Thasildar and therefore, it is seen that the plaintiff had exercised ownership over the suit property after the purchase under Ex.A1/B1 and accordingly, secured the patta in respect of the suit property from the competent authority by way of Ex.A2. Following the grant of patta under Ex.A2, it is found that the plaintiff has also paid kist in respect of the suit property and the kist receipts have come to be marked as Exs.A3 & 5. A perusal of Exs.A3 & A5, it is found that it is only the plaintiff, who has been in possession and enjoyment of the suit property by paying kist and also from Ex.A2, it is found that the patta for the suit property also stands only in the name of the plaintiff. In addition to that, the plaintiff has also produced the Adangal extract for the fasli 1409, where from, it is seen that it is only the plaintiff, who has been in possession and enjoyment of the suit property by cultivating the same and all the above said documents cumulatively seen, would go to establish that pursuant to Ex.A1/B1, the possession and enjoyment of the suit property lies only with the plaintiff and not with the first defendant or the defendants as the case may be. Though the first defendant would claim that the suit property remains in his possession and enjoyment pursuant to Ex.A1/B1 and also disputed the case of the plaintiff that the suit property is not in the plaintiff's possession and enjoyment, to buttress his above claim, there is no material forthcoming on the part of the defendants as such to hold that the suit property is in the possession and enjoyment of the first defendant absolutely, there is no material on the part of the defendants to evidence the possession and enjoyment of the suit property by the first defendant and therefore, the contention put forth by the defendants, particularly, the first defendant that it is he, who is in possession and enjoyment of the suit property as such cannot be believed and accepted. Further, the first defendant examined as DW1 would admit during the course of cross examination that he does not know whether the patta for the suit property lies in the name of the plaintiff and denied the suggestion that it is only the plaintiff, who has been paying kist in respect of the suit property. However, he would claim that it is he, who has been paying the kist, also admitted that he does not know the patta number for the suit property and also admitted that till date, he has not enquired as to in whose name, the patta for the suit property is issued and denied the suggestion that he has not paid/filed the kist receipt in his name in respect of the suit property. From the above said evidence of the first defendant, it is evident that he is totally ignorant about the possession and enjoyment of the suit property and accordingly, unable to throw a clear picture as regards the same. Though he would claim that he had paid the kist in respect suit property, the kist receipts alleged to have been paid by him have not been produced. Though he would claim that the patta for the suit property is not in the name of the plaintiff or pleaded ignorance with reference to the same, not endeavored to show that the patta stood in his name and not in the name of the plaintiff. On the other hand, from Ex.A2, it is found that the patta proceedings had been issued only in favour of the plaintiff from the original owner viz., Jayabackiam. Therefore, there is absolutely, no material placed by the defendants to evidence that the suit property has been in possession and enjoyment of the first defendant.
15. The first defendant has projected a motive as to why he had chosen to purchase the suit property benami in the name of the plaintiff. According to him, as he was owning extensive properties and also took steps to secure the poromboke property from the Government and fearing that the patta would not be granted to him in case of his owning extensive properties, therefore, as per the case of the first defendant, he had chosen to purchase the suit property in the name of the plaintiff. However, the above said theory/motive as such cannot be readily accepted. With reference to his case that he had initiated steps to secure patta in respect of the poromboke property, there is nill material. Even assuming for the sake of arguments that such an endeavour had been made by the first defendant, still when it is found that the first defendant is blessed with many sons and daughters, nothing prevented him from acquiring the suit property in the name of his sons and daughters as the case be, hence, there is no need for the first defendant to acquire the property in the name of his brother, the plaintiff. The position being above, the motive aspect projected by the defendants for having the document Ex.A1 in the name of the plaintiff, being found to be unacceptable, the above aspect of the case has to be held only against the defendants.
16. As above seen, the plaintiff, the first defendant and Marimuthu are brothers. It is found that accordingly, the parties, at one point of time, were cordial and maintaining smooth relationship. In such view of the matter, merely from the production of the original title deed of the sale transaction dated 04.09.1987 by the first defendant as Ex.B1 that by itself would not lead to the conclusion that it is he, who had purchased the suit property Benami in the name of the plaintiff. Similarly, the production of the parent title deed by the first defendant marked as Ex.B4 also by itself would not lead to the conclusion that it is only the first defendant, who had acquired the suit property by way of Ex.A1/B1 in the name of the plaintiff. Now, according to the plaintiff, as his original title deed had been lost, he has laid the suit on the basis of the certified copy of the same, which has come to be marked as Ex.A1. Considering the relationship between the parties and particularly, further considering the fact that the vendor Jayabackiam is the daughter of the first defendant and also considering the fact that at the time of sale transaction Ex.A1/B1, the parties were very cordial and the first defendant being the eldest member of the family, accordingly, it is seen that the production of the original title deed by itself on the part of the first defendant cannot be the basis to hold that it is he, who had purchased the suit property benami in the name of the plaintiff.
17. As regards the contention of the parties in dealing with the suit property pursuant to Ex.A1/B1, as above discussed, there is nil material produced by the defendants to show that the first defendant is in the possession and enjoyment of the suit property pursuant to the above said sale transaction. On the other hand, the plaintiff has placed ample evidence to show that it is only he, who has been in possession and enjoyment of the suit property by obtaining patta, paying kist etc.,. In the light of the above factors, when the essential ingredients to be established by the defendants as to the proof of a beanmi transaction as outlined in the above said decision of the apex Court, when most of the ingredients being found to be not established by the defendants as such barring the production of the original title deed, it is found that as rightly determined by the trial Court, the first defendant has miserably failed to establish that the suit property had been purchased by him benami in the name of the plaintiff.
18. No doubt, the defendants have examined the vendor Jayabackiam as DW3 and DW3 would depose that it is only the first defendant her father, who had parted with the sale consideration and she accordingly had executed the sale deed Ex.A1/B1 in the name of the plaintiff. However, when from the recitals found in Ex.A1/B1, the fact remains that it is only the plaintiff, who had only parted with the sale consideration and the same has been received by DW3 only from the plaintiff, the vendor examined as DW3 would be barred by testifying against the contents of the document marked as Ex.A1/B1 and further, considering the relationship between DW1 and DW3, accordingly, it is seen that DW3 has chosen to depose in favour of her father viz., the first defendant and by way of the same alone, when the recitals found in Ex.A1/B1 do not support her theory, in my considered opinion, from the evidence of DW3, ipso facto, we cannot safely conclude that it is only the first defendant, who had parted with the sale consideration for Ex.A1/B1. If that be so, the first defendant would have been in the possession and enjoyment of the suit property and on the other hand, it is found that it is only the plaintiff, who had been in possession and enjoyment of the suit property as above discussed. Therefore, the evidence of DW3 would not in any manner tilt the scale in favour of the first defendant for holding that the suit property had been acquired benami by him in the name of the plaintiff.
19. The defendants have also projected a plea that the parties had entered into a muchalika on 19.06.2000, wherein, both the plaintiff and the first defendant had agreed that the properties remaining in the possession of the respective parties should continue to remain as such and therefore, it is the case of the defendants that the plaintiff cannot go beyond the terms of the said muchalika and hence, the plaintiff's suit should fail and the Panchayat Muchalika said to have been executed between the parties has come to be marked as Ex.B2. On a perusal of the terms of Ex.B2, it is found that by way of the same, the parties have partitioned their properties and decided to enjoy the properties separately and further, by way of the same, the parties had also chosen to exchange the properties amongst themselves, in case of any shortfall as per the understanding entered into between them and such being the character of Ex.B2 document, as rightly put forth, the said document cannot at all be received in evidence for want of registration as per law and therefore, it is found that the first appellate Court has erred in placing reliance upon Ex.B2 muchalika for upholding the defendants' case. In addition to that, on a perusal of Ex.B2, it is found that there is a material alteration insofar as the suit survey is concerned and when with reference to the same, there is no plausible explanation offered on the part of the defendants and when the said alteration has not been authenticated duly and properly in the said document either by the scribe of the document or by the authors of the said document, it is highly doubtful whether the suit property would have been included as the subject matter under the said muchalika. This factor assumes importance because the first defendant examined as DW1 during the course of cross examination has clearly admitted that though the muchalika arrangement was entered into between him, the plaintiff and the other brother Marimuthu, it is found that the other brother Marimuthu has not signed the said document Ex.B2. Further, the first defendant has admitted that he is not aware of the corrections and erasures found in the document Ex.B2. To cap it all, the first defendant has clearly admitted that in the Panchayat Muchalika, the suit property has not been included and such being his evidence, accordingly, it is seen that subsequently to support the case of the first defendant, there appears to be a material alteration in Ex.B2 as regards the suit survey number and when there is no proper explanation with reference to the same on the part of the defendants and the same raises a doubt vis-a-vis the above said admission of the first defendant, as rightly put forth, based upon Ex.B2, we cannot hold that the plaintiff has admitted the title of the first defendant in respect of the suit property. In any event, as above discussed, when the recitals found in Ex.B2 disclose that by way of the said document, the parties had decided to partition their properties, keeping in mind the possession and enjoyment of the properties and also the parties had agreed to exchange the properties by way of the said document, the said document could only be treated as a partition deed or an exchange deed and when the nature of the document being as above and when such a document requires compulsory registration as per law, sans registration of the same, the document could not be looked into for any purpose as such. However, the first appellate Court has proceeded to rely upon the said document holding that it could be received for collateral purpose. However, as to what is the collateral purpose with reference to which the said document is relied upon by the first appellate Court, there is no proper discussion or determination by the first appellate Court. When the document Ex.B2 is projected by the defendant only for claiming title to the suit property as projected by him i.e. to establish the Benami plea set out by him, the said factor cannot at all be determined as a collateral purpose and in such view of the matter, it is found that the first appellate Court has completely erred in upholding Ex.B2 Muchalia that it could be received for collateral purpose without specifying as to for what collateral purpose, the said document has come to be entertained by it.
20. Therefore, it is found that the first appellate Court has failed to appreciate the materials placed on record in the proper perspective as per the requisites of law and disturbed the well considered reasonings and conclusions of the trial Court for upholding the plaintiff's case and thereby, the first appellate Court has erred in dislodging the determination of the trial Court without assigning proper and acceptable reasonings and on the other hand, disturbed the determination of the trial Court by reasonings, which could be only be termed as perverse and illogical. Accordingly, though it is found that the Benami Transactions (Prohibition) Act, 1988, is found not applicable to the sale transaction marked as Ex.A1/B1, still in the light of the above discussions, it has to be held that the defendants have miserably failed to establish the plea of Benami set out by them as per the guidelines and principles formulated by the apex Court in the decision referred to above. It is further seen that the first appellate Court has erred in relying upon Ex.B2 Muchalika for a collateral purpose without explaining and determining as to for what collateral purpose, the said document is accepted by it, particularly, when it is seen that the said document is projected by the defendants only to establish their plea of benami as regards Ex.A1/B1 sale transaction. Further, the first appellate Court has failed to consider the recitals found in Ex.B2 Muchalika, when by way of the same, the parties intended to partition their properties and also agreed to exchange their properties amongst themselves and such being the recitals contained in Ex.B2, the document assuming the character of a partition deed cum exchange deed, which document requires compulsory registration, it is found that the first appellate Court has completely fallen into error in accepting the said document, despite the lack of registration of the same as mandated under law. The substantial questions of law formulated in the second appeal are accordingly answered.
In conclusion, the Judgment and decree dated 13.03.2003 passed in A.S.No.12 of 2000 on the file of the Subordinate Court, Dharmapuri, are set aside and the judgment and decree dated 21.07.2000 passed in O.S.No.17 of 1992 on the file of the District Munsif Court, Dharmapuri, are restored. Accordingly, the second appeal is allowed with costs. Consequently, connected miscellaneous petition, if any, is closed.
16.02.2018 Index : Yes/No Internet : Yes/No sms To
1. The Subordinate Court, Dharmapuri.
2. The District Munsif Court, Dharmapuri.
3. The Section Officer, V.R.Section, High Court, Madras.
T.RAVINDRAN,J.
sms Pre-delivery Judgment made in S. A.No.1059 of 2003 16.02.2018