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2023 (8) TMI 1103 - HC - Benami PropertyBenami Transaction - True owner of property - Whether the Trial Court was right in concluding that Items 1 to 3 of suit properties were belonged to Ramasamy Chettiar, though the sale deeds dated 27.10.1948 stood in the name of Sowdammal? - HELD THAT - We have considered contents of Ex.A2, sale deed, which clearly shows that consideration for the said sale was paid by Ramasamy Chettiar on behalf of the Sowdammal. There is a specific endorsement to the effect made by the Sub-Registrar, which is an Official act done under Section 58 of the Registration Act. We find force in the contention of the respondents to the effect that Ramasamy Chettiar, who was the head of the joint family having seven children would not have intended to benefit his wife alone. The fact that he was forced to sell away the property in 1961 to get the 1st defendant married is projected as a pointer. When we look at the totality of the circumstance and evidence of the D.W.1, the eldest daughter of Ramasamy Chettiar and Sowdammal, we find that we have to agree with the Trial Court in its conclusion that the property was purchased by Ramasamy Chettiar out of his own funds and he was intend benefit Sowdammal / his wife through the said purchase. No doubt, there was some ancestral property but it is not shown that it had yielded necessary income for the purchase. Therefore, we should necessarily proceed on the finding that the property was self acquisition of Ramasamy Chettiar. Once it is held that the property was a self-acquisition of Ramasamy Chettiar, the plaintiff and the defendants 1 to 6 along with Sowdammal would each be entitled to 1/8th share. The 1/8th share of Sowdammal would devolve, on her death, on her heirs depending on her intestacy or otherwise. Validity of the Will left by the Sowdammal - Whether the Will dated 05.06.1995 has been proved to be true and valid ? - As rightly pointed out by the learned counsel for the plaintiff the signatures made at the time of execution of the Will are vastly different from the signatures made before the Sub-Registar. We are unable to persuade ourselves to agree with the contention of defendants 2, 9 and 10 regarding execution of the Will. Despite being a registered instrument, the Court is not precluded from examining the suspicious circumstances. As rightly pointed out by the learned counsel for the plaintiff Sowdammal, who was the mother of at least seven children would not have, but for very strong reason, executed a Will excluding six of her children from inheriting her property. We do not find any explanation either in the Will or in the evidence of D.W.2 and D.W.3. As we have already pointed out that the disinheritance of at least six of the heirs and preference to a daughter-in-law and married grand daughter by itself is a suspicious circumstance. We are unable to find any evidence that would justify such exclusion by Sowdammal. The above coupled with differences in signatures found in the document compel us to conclude that the Will has not been proved in accordance with law and the same cannot be said to be valid and binding on the other heirs. Once we reach a conclusion that the Will has not been proved, the share of Sowdammal in Items 1 to 3 namely, 1/8th will also devolve under Section 15 of the Hindu Succession Act under which her children will get an equal share. Therefore, the plaintiff will get 1/7th share in Items 1 to 3. Purchase of Item 4 and the character of 5th item of Schedule 1 and 1st Item of Schedule 2 - Whether the ancestral nucleus found to be in existence earned a sufficient income to leave a surplus to enable purchase of Items 4 and 6 of the 1st schedule in the name of the defendants 2 and 9 respectively ? - Since Ramasamy Chettiar was alive at that time, a purchase by a junior member of a joint family does not entail the same presumption as purchase in the name of the Karta. Therefore, person claiming the property to be joint family property will have to establish by cogent and convincing evidence that the purchase was made out of the funds from the joint family properties. We also find that the nucleus that was available was only a house property, which would not have generated so much of income to enable purchase of Item 4 in the name of the 2nd defendant. Apart from the above, the 2nd defendant has also produced evidence in the form of sales tax returns Ex.B15 and assessment orders under Exs.B18, 19, 20 and 21 to show he has been doing some business at that time. We are therefore, inclined to accept the finding of the Trial Court regarding the character of Item 4 of the suit schedule properties. 6th item of the suit schedule properties was purchased under two sale deeds - Whether it is shown to the plaintiff to plead that Item 6 belonged to the joint family ? - Item 6 is the absolute property of the 9th defendant and the plaintiffs are not entitled to any share in the suit properties. The Trial Court has granted 1/7th share to the plaintiff in Item No.5 of Schedule 1 and Item 1 of Schedule 2, which are admittedly joint family properties. Defendants 2, 9 and 10 is unable to pick holes in the findings of the Trial Court with reference to those properties, since the character of those properties has been admitted. The Trial Court granted 1/7th share treating the children of Ramasamy Chettiar as coparceners in view of the advent of Hindu Succession (Amendment) Act 39 of 2005. We therefore, affirm the said findings of the Trial Court. a) the plaintiff is declared entitled to 1/7th share in Item 1 to 3 and 5 of Schedule 1 and Item 1 of Schedule 2. There will be a preliminary decree for partition as above. b) the parties will be entitled to move the Trial Court for determination of mense profits. c)The Trial Court's decree stands confirmed in respect of Item No.5 of Schedule 1 and Item 1 of Schedule 2.
Issues Involved:
1. Entitlement to 1/7th share in the suit property. 2. Entitlement to accounts as prayed for. 3. Genuineness of the Will dated 05.06.1995. 4. Recovery of possession in respect of "B" schedule property. 5. Entitlement to permanent injunction and mesne profits. Summary: Issue 1: Entitlement to 1/7th Share in the Suit Property The plaintiff claimed 1/7th share in the suit properties, asserting they were joint family properties. The Trial Court concluded that Items 1 to 3, purchased in the name of Sowdammal, were actually bought by Ramasamy Chettiar from his own funds, rebutting the presumption under Section 3(2) of the Benami Transaction (Prohibition) Act. The High Court upheld this conclusion, noting that the income tax returns and other evidence indicated Ramasamy Chettiar treated these properties as his own. Consequently, the plaintiff and other heirs were entitled to 1/8th share each, which further devolved to 1/7th share after considering the invalidity of the Will. Issue 2: Entitlement to Accounts The Trial Court's decision to grant a preliminary decree for partition in respect of Items 1 to 3 in Schedule 1 for 1/8th share in favor of the plaintiff was upheld. The High Court affirmed the Trial Court's findings regarding the joint family properties and the share entitlement under the Hindu Succession (Amendment) Act, 2005. Issue 3: Genuineness of the Will Dated 05.06.1995 The Will dated 05.06.1995, allegedly executed by Sowdammal, was contested. The Trial Court upheld the Will based on the testimony of an attesting witness and the scribe. However, the High Court found significant differences in the signatures and noted the exclusion of six heirs without explanation as suspicious. The High Court concluded that the Will was not proved to be valid and binding, leading to the 1/8th share of Sowdammal devolving equally among her children. Issue 4: Recovery of Possession in Respect of "B" Schedule Property The High Court upheld the Trial Court's decision to dismiss the suit for recovery of possession and damages, confirming that Items 4 and 6, purchased in the names of the 2nd defendant and his wife respectively, were their self-acquisitions and not joint family properties. Issue 5: Entitlement to Permanent Injunction and Mesne Profits The High Court affirmed the Trial Court's decree granting an injunction and a declaration that the Will dated 05.06.1995 was valid only concerning the 1/8th share of the deceased Sowdammal. The appeals in A.S.Nos.516 & 517 of 2013 were allowed in part, dismissing the suit in O.S.No.841 of 2007 entirely. Conclusion: The appeals in A.S.Nos.481 & 482 of 2013 were dismissed, and the appeals in A.S.Nos.516 & 517 of 2013 were allowed in part. The plaintiff was declared entitled to 1/7th share in Items 1 to 3 and 5 of Schedule 1 and Item 1 of Schedule 2, with a preliminary decree for partition as above. The parties were allowed to move the Trial Court for determination of mesne profits, and no order as to costs was passed considering the close relationship of the parties.
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