2019 (11) TMI 1448 - HC - Benami Property

Specific performance - partial partition - decree for partition and separate possession of 1/3rd share each of the plaintiff and the defendants 3 to 6 together at the hands of the courts - Since the 2nd defendant Kumadhavalli @ Kumudha died pending suit the defendants 3 to 6 were impleaded as her legal representatives. The 7th defendant was impleaded on the plea that he has purchased item Nos.4 to 7 from the 1st defendant - Whether the courts below were right in not considering the claim of the defendants that the suit properties were purchased in the name of Kanagayal out of the monies earned by Ayyasamy who was admittedly employed in Singapore? - whether sale by the 1st defendant in favour of the 7th defendant is not binding on the plaintiff ? - HELD THAT - As from the evidence produced that all the properties subject matter of the Wills have not been included in the suit. The A Schedule property found in the Will dated 22.06.1987 measuring about 1 acre 35 cents has not been included in the suit. The answer to this non-inclusion is that the property belonged to Ayyasamy and therefore non-inclusion of it in this suit which is with reference to the estate of Kanagayal will not render the suit bad for partial partition. It is also pointed out that out of the B schedule properties found in Ex.B8 Will only the first three items are made subject matter of the suit. Even there as regards item Nos.1 and 2 only a portion of it has been included in the suit. Whether only an extent of about 40 cents in the item Nos.1 and 2 and item No.3 belonged to Kanagayal ? - Admittedly Kanagayal pre-deceased Ayyasamy and Ayyasamy had inherited a share in the estate of Kanagayal. That share necessarily forms part of the estate of Ayyasamy. Therefore this suit which was instituted after the death of Ayyasamy cannot be treated as a suit for partition of the estate of Kanagayal alone. It is a suit for partition of the portion of the estate of Ayyasamy which was inherited by him after the death of Kanagayal. Therefore the plaintiff in my considered opinion should have sued for partition of the entire estate of Ayyasamy and Kanagayal. If the plaintiff had filed the suit during the life time of Ayyasamy seeking partition and separate possession of the estate of Kanagayal Ayyasamy would have been definitely entitled to 1/4th share. That 1/4th share now forms part of the estate of Ayyasamy. Therefore the contention of the counsel that this suit being only for partition of the estate of Kanagayal cannot be said to be bad for partial partition because of the non-inclusion of the properties that stand in the name of Ayyasamy cannot be accepted. Suit will stand dismissed as bad for partial partition.

Summary

Issues Involved:
1. Whether the suit properties were purchased in the name of Kanagayal out of the monies earned by Ayyasamy.
2. Whether the suit as laid is bad for partial partition.

Detailed Analysis:

Issue 1: Whether the suit properties were purchased in the name of Kanagayal out of the monies earned by Ayyasamy
The plaintiff sought partition and separate possession of his 1/3rd share in the properties originally belonging to Kanagayal, who purchased items 1 to 7 in her name and item 8 through a decree in O.S.No.110 of 1976. The 1st defendant contended that the properties were bought with the money sent by Ayyasamy, who worked in Singapore, and thus, Kanagayal was not the absolute owner. The trial court found that the 1st defendant failed to prove the Wills dated 22.06.1987 and 18.05.1991, which allegedly bequeathed properties to him and the plaintiff, and concluded that suit item No.8 was purchased in the name of the 1st defendant but should be treated as Kanagayal’s property.

The court noted that the 1st defendant did not provide sufficient evidence to establish that the suit properties were purchased with funds sent by Ayyasamy from Singapore. The evidence provided by PW3 in cross-examination was deemed insufficient to rebut the presumption under Section 3(2) of the Prohibition of Benami Property Transactions Act, 1988, which states that properties purchased by a person in the name of his wife are presumed to be for her benefit unless proven otherwise.

Issue 2: Whether the suit as laid is bad for partial partition
The 1st defendant argued that the suit was bad for partial partition as it did not include all properties, particularly those bequeathed in the Wills Ex.B8 and Ex.B14. The trial court rejected this claim, noting that DW1 admitted there were no other properties to be divided apart from those in the Wills. However, the High Court found that the plaintiff should have included the entire estate of Ayyasamy and Kanagayal in the suit, as Ayyasamy inherited a share of Kanagayal’s estate upon her death. The court cited previous judgments asserting that a suit for partition must include the whole estate available and cannot selectively omit properties.

Conclusion:
The High Court concluded that the 1st defendant failed to prove that the suit properties were purchased with the monies sent by Ayyasamy and that the Wills were not proved in accordance with law. However, the suit was held to be bad for partial partition as it did not encompass the entire estate of Ayyasamy and Kanagayal. Consequently, the Second Appeal was allowed, and the judgments and decrees of the lower courts were set aside, resulting in the dismissal of the suit in O.S.No.189 of 2005.