2021 (10) TMI 775 - HC - Benami Property

Benami purchase - real owner - onus to prove - property was the joint family property - Hindu Succession Act - right of daughters in property in partition - whether the title is presumed to vest with the person, in whose name the sale deed stands, and the burden of proof lies heavily on the person who sets up benami plea? - HELD THAT - The appellants have not filed partition suit or issued notice till the demise of their father. Only after the demise of their father, the partition suit was instituted. The plaintiffs never claimed that the entire property was their absolute property. Their only contention was that the property was the joint family property and they are entitled to a particular share. The Courts below have completely glossed over the material evidence in this case. When Ex.A.1 stands in the name of the late wife, the burden to show that it was purchased benami was only on the person who asserted that it was a benami transaction. The Courts below failed to take note of the fact that the defendants have failed to discharge the burden cast on them. The Courts below glossed over the fact that Ex.A.2 and Ex.A.3 were executed jointly by Sabapathy Iyer and his sons. Recitals in Ex.A.3 that the suit property is a joint family property has also been overlooked. If material evidence is ignored, that vitiates the findings. The Courts below have also failed to apply statutory presumption set out in Section 3(2) of the Benami Transactions (Prohibition) Act, 1988 - no hesitation to set aside the impugned judgment and decree and answer the substantial question of law in favour of the appellants. Certain subsequent developments will have to be taken note of. Even according to the plaintiffs, the property in question was a joint family property. They concede that Sabapathy Iyer had a share in the suit property. When the suit was instituted, only sons could have been a part of the co-parcenery. In view of the amendment to Section 6 of the Hindu Succession Act vide Central Act 39 of 2005, as interpreted by the Hon'ble Supreme Court in Vineeta Sharma Vs. Rakesh Sharma 2020 (8) TMI 571 - SUPREME COURT the daughters also will be entitled to equal share in the property. In that event, the share of Sabapathy Iyer was reduced to 1/7th share in the suit property. There is no dispute that Sabapathy Iyer had executed a Will in favour of defendants 2 to 4. The said Will had also been duly proved by the defendants in the manner known to law. No serious argument was advanced before me impeaching the said finding. Thus confirm the finding of the Courts below that Ex.B.21 had been duly proved. 1/7th share of Sabapathy Iyer would devolve on defendants 2 to 4. Thus the plaintiffs as well as the fifth defendant Chandra Bai will be entitled to 6/63rd share each. Defendants 6 and 7 also will be entitled to 6/63rd share each. Defendants 2 to 4 will be entitled to 6/63rd share each and also will be entitled to Sabapathy Iyer's 1/7th share.

Summary

Issues Involved:
1. Entitlement to partition and separate possession of 33/70th share in the suit property.
2. Validity of the Will executed by Sabapathy Iyer on 09.04.1975.
3. Proper valuation of the suit and correct payment of court fees.
4. Other reliefs to which the plaintiffs are entitled.

Issue-wise Detailed Analysis:

1. Entitlement to Partition and Separate Possession of 33/70th Share:
The plaintiffs claimed that the suit property, purchased by their mother Swarnalakshmi Ammal, was treated as joint family property. They argued that after the demise of Sabapathy Iyer, his 1/7th share would devolve equally among the plaintiffs and defendants, entitling them to a 33/70th share. The defendants contended that the property was funded entirely by Sabapathy Iyer and was his self-acquired property, purchased benami in the name of Swarnalakshmi Ammal. The court held that the burden of proving the benami transaction lay on the defendants, as the property was in Swarnalakshmi Ammal’s name. The court found that the defendants failed to discharge this burden and noted that the property was treated as joint family property, evidenced by Ex.A.2 and Ex.A.3, which included the names of the plaintiffs and other sons. Consequently, the court ruled in favor of the plaintiffs, acknowledging their entitlement to a share in the property.

2. Validity of the Will Executed by Sabapathy Iyer on 09.04.1975:
The defendants presented a Will dated 09.04.1975, bequeathing the property to defendants 1 to 4, and a second Will dated 13.07.1990. The trial court and the appellate court confirmed the validity of Ex.B.21 (the second Will). The High Court upheld this finding, noting that the Will was duly proved by the defendants. Therefore, the court confirmed that 1/7th share of Sabapathy Iyer would devolve on defendants 2 to 4 as per the Will.

3. Proper Valuation of the Suit and Correct Payment of Court Fees:
The fifth defendant aligned with the plaintiffs and paid the court fee for her 1/10th share. The court did not find any issues with the valuation of the suit or the payment of court fees, implying that these were correctly handled.

4. Other Reliefs to Which the Plaintiffs Are Entitled:
The court acknowledged the plaintiffs’ claim that the property was joint family property and recognized their right to a share. The court also took into account the amendment to Section 6 of the Hindu Succession Act, which entitles daughters to equal shares in the property. Consequently, the court adjusted the shares, ensuring that all parties, including the daughters, received their rightful portions. The plaintiffs and the fifth defendant were each entitled to 6/63rd share, while defendants 6 and 7 also received 6/63rd share each. Defendants 2 to 4, in addition to their 6/63rd share, were entitled to Sabapathy Iyer’s 1/7th share.

Conclusion:
The High Court allowed the second appeal, setting aside the judgments of the lower courts and affirming the plaintiffs’ entitlement to their respective shares in the suit property. The court meticulously considered the evidence, statutory presumptions, and legal principles, ensuring a fair distribution of the property in accordance with the law.