2021 (12) TMI 298 - HC - Benami Property

Benami transaction - joint family property - Whether the plaintiff proves that the suit schedule property is the joint family property of the plaintiff and the defendants? - HELD THAT - The first defendant - mother is also no more and she also passed away on 24.08.2017 and this application is filed prior to death of the mother and the reasons assigned in the application that by oversight she was not made as a party to the proceeding. It has to be noted that the appellant claims that the suit schedule property belongs to the joint family and other respondents have also not disputed the fact that she is not the daughter of Kumaran Nair and also the first defendant - Thangamma. When the suit is filed for the relief of partition and separate possession, the appellant ought to have made her a party to the proceeding but there was a delay in filing the application. It is also not in dispute that the matter was also remanded from the Apex Court. But on perusal of the entire objection statement except stating that there was a delay in filing the application, whether she is necessary party or not has not been disputed by the proposed respondent in the objection statement. Hence, the appellant has made out a ground to allow the application filed under Order 1 Rule 10(2) read with Section 151 of CPC to implead his sister as respondent No.5. Plaintiff proof that he has got 1/5th share in the suit property - HELD THAT - As noted that the suit is filed for the relief of partition and also the suit was dismissed prior to execution of these documents. In order to decide the issue whether the suit schedule property is the joint family property or not, these documents are not necessary and germane issues are involved between the parties only whether the suit schedule properties are the joint family properties or not even if any documents are created during the pendency of the appeal that will not take away the case of the appellant/plaintiff. While allowing the application filed under Order 41 Rule 27 read with Section 151 of CPC, the Court has to be kept in mind whether those documents are necessary to adjudicate the issues involved between the parties. I have already pointed out that the issue involved between the parties is whether the plaintiff is entitled for the relief of partition in proving the suit schedule property is the joint family property or not. Hence, we do not find any ground to allow the application filed Order 41 Rule 27 read with Section 151 of CPC permitting him to produce the additional documents. Hence, answered point No.2 as 'negative'. Whether the first defendant proves that the suit property belongs to her exclusively? - HELD THAT - As in this case, document - Ex.P1 - Agreement to Sell was in the name of the father. Sale Deed was in the name of the mother and all are family members. Hence, the question of Benami transaction does not arise. Only the mother is the name lender and the mother also may be contributed by selling her native place property which was given to her, but that does not mean that all the family members have not joined in purchasing the property and making the construction. Admittedly, the plaintiff also joined the Police Department in the year 1972 and the house was constructed in the year 1978-79 and D.W.1 also though contend in her evidence that he was residing separately, but in the cross-examination categorically admitted that she was stayed along with her husband and the plaintiff in Bengaluru. Hence, it is clear that the plaintiff also residing along with the family till his marriage i.e., 1980. When such being the case, the question of Benami transaction does not arise and the property was only purchased in the name of the mother. Hence, the material available on record in toto both oral and documentary evidence placed on record is clear that it was the joint family property and the plaintiff also substantiated before the Court by marking Ex.P4-Canara Bank Pass Book in which an amount of ₹ 500/- was paid to the Vendor. Trial Court failed to consider both oral and documentary evidence placed on record and committed a material illegality in considering the evidence and material evidence also not considered and lost sight particularly, documents - Exs.P1 to P5 and also the conduct of the defendants i.e., DWs.1 and 2 and mainly carried away accepting the case of the defendants that she has sold the property belongs to her native place property and failed to take note of the evidence available on record in toto. Hence, it requires an interference of this Court. The subsequent development mother is no more and she passed away during the pendency of this appeal and one of the sister of the plaintiff is also brought on record by allowing the application - I.A.No.1/2013. Hence, the plaintiff is entitled for 1/5th share in the suit schedule property. Order - The impugned judgment and decree passed on the file of the XV Additional City Civil Judge at Bengaluru City, is set aside.The plaintiff is entitled for 1/5th share in respect of suit schedule property.

Summary

Issues Involved:
1. Whether the suit schedule property is the joint family property.
2. Whether the plaintiff is entitled to a 1/5th share in the suit property.
3. Whether the first defendant proves that the suit property belongs to her exclusively.
4. Whether the plaintiff is entitled to any relief.
5. Whether the application to implead the daughter as a necessary party should be allowed.
6. Whether the application to produce additional documents should be allowed.
7. Whether the Trial Court's dismissal of the suit requires interference.

Detailed Analysis:

1. Whether the suit schedule property is the joint family property:
The plaintiff contended that the suit schedule property was acquired jointly by his father and himself, and registered in the name of his mother (first defendant). He claimed the property was part of the Hindu Undivided Family (HUF) and sought his 1/5th share. The defendants, including the mother and two brothers, denied this, asserting the property was exclusively the mother's, purchased from the proceeds of her land sale. The Trial Court dismissed the suit, concluding the plaintiff failed to prove the property was joint family property. However, the High Court found that the plaintiff provided sufficient evidence, including a bank passbook showing a payment to the vendor and a sale agreement in his father's name, to substantiate his claim. The Court noted discrepancies and contradictions in the defendants' testimonies, particularly regarding the source of funds for the property purchase and construction.

2. Whether the plaintiff is entitled to a 1/5th share in the suit property:
The High Court concluded that the plaintiff is entitled to a 1/5th share in the suit property. The Court emphasized the evidence provided by the plaintiff, including the sale agreement, bank passbook, and testimonies supporting his contribution to the property's acquisition and construction. The Court found that the Trial Court had erred in dismissing the suit and failing to consider the plaintiff's evidence adequately.

3. Whether the first defendant proves that the suit property belongs to her exclusively:
The first defendant claimed the property was purchased solely from her funds, derived from selling her land in Kerala. However, the High Court found inconsistencies in her statements and lack of documentary evidence supporting her claim. The Court noted that the sale agreement was initially in the father's name, and the plaintiff's contributions were evident. The Court concluded that the property could not be considered exclusively the first defendant's.

4. Whether the plaintiff is entitled to any relief:
The High Court determined that the plaintiff is entitled to relief, specifically a 1/5th share in the suit property. The Court's decision was based on the evidence provided by the plaintiff, which demonstrated his contributions to the property's acquisition and construction, and the inconsistencies in the defendants' claims.

5. Whether the application to implead the daughter as a necessary party should be allowed:
The plaintiff filed an application to implead his sister as a necessary party, which the defendants opposed. The High Court allowed the application, noting that the sister was indeed a necessary party to the proceedings, given her potential interest in the suit property. The Court emphasized that the sister's inclusion was essential for a complete adjudication of the matter.

6. Whether the application to produce additional documents should be allowed:
The plaintiff also filed an application to produce additional documents, including gift deeds executed by the mother during the appeal's pendency. The High Court dismissed this application, stating that these documents were not necessary for adjudicating the primary issue of whether the suit schedule property was joint family property. The Court focused on the evidence already available on record.

7. Whether the Trial Court's dismissal of the suit requires interference:
The High Court found that the Trial Court had committed a material error in dismissing the suit. The Trial Court failed to consider crucial evidence provided by the plaintiff, including the sale agreement, bank passbook, and testimonies. The High Court concluded that the Trial Court's decision resulted in a miscarriage of justice and required interference. Consequently, the High Court set aside the Trial Court's judgment and decree, allowing the appeal and granting the plaintiff a 1/5th share in the suit property.

Conclusion:
The High Court allowed the appeal, set aside the Trial Court's judgment, and decreed that the plaintiff is entitled to a 1/5th share in the suit property. The application to implead the sister was allowed, while the application to produce additional documents was dismissed. The registry was directed to draw the decree accordingly.