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TMI Blog2019 (5) TMI 1086X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of JAYDAYAL PODDAR (DECEASED) THROUGH HIS L. RS AND ANOTHER VERSUS MST. BIBI HAZRA AND ORS. [1973 (10) TMI 55 - SUPREME COURT] it is specifically observed and held by this Court that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be sold. It is further observed that this burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of the benami transaction or establish circumstances unerringly and reasonably raising an interference of that fact. It is required to be noted that the benami transaction came to be amended in the year 2016. As per Section 3 of the Benami Transaction (Prohibition) Act 1988, there was a presumption that the transaction made in the name of the wife and children is for their benefit. By Benami Amendment Act, 2016, Section 3 (2) of the Benami Transaction Act, 1988 the statutory presumption, which was rebuttable, has been omitted. It is the case on behalf of the respondents that therefore in view of omission of Section 3(2) of the Benami Transaction Act, the plea of statutory t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the first plaintiff did not have issue. According to the original plaintiffs, Narayanasamy Mudaliar sold the ancestral properties and purchased the suit property in the name of first defendant Mangathai Ammal (wife of Narayanasamy Mudaliar). Therefore, it was the case on behalf of the plaintiffs that Narayanasamy Mudaliar and his son Elumalai are entitled to half share of the ancestral properties. That, it was the case on behalf of the plaintiffs that the same Narayanasamy Mudaliar had died twenty years back to the filing of the suit. His share in the properties was inherited by Elumalai, defendant nos. 1 and 2 viz Nagabushanam Ammal and Ranganayaki Ammal. That, the Ranganayaki died about six years before filing of suit, therefore, her legal representatives viz original plaintiff nos.2 to 8 inherited her share in the properties. That, the Nagabushanam executed the Release Deed dated 24.04.1990 in favour of the first defendant. According to the plaintiffs, the first plaintiff is entitled to 5/8th share, plaintiff nos. 2 to 8 are entitled to 1/8th share and the defendants are entitled to 1/4th share in the suit properties. According to the plaintiffs, since the defendant tried to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) Whether the suit schedule properties are ancestral properties of husband of the 1st plaintiff namely Elumalai and the deceased Narayansamy? 2) Whether it is true that the 1st defendant had managed the suit schedule properties being the Manager of the Family? 3) Whether it is true that the Suit Schedule properties are jointly enjoyed by all the family members as Joint Family Property? 4) Whether the plaintiffs are entitled to claim partition in view of the Release Deed dated 24.04.90 executed by Nagabooshanam Ammal? 5) Whether it is true that the 1st defendant had executed a Will on 11.2.87 to and in favour of plaintiffs in respect of suit schedule property and revoked the said Will on 11.6.90? 6) Whether it is true that the plaintiffs are in joint possession of the suit schedule properties? 7) Whether the plaintiffs are entitled to get 3/4th share over the suit schedule properties? 8) Whether the present suit is not valued properly? 9) To what relief the plaintiffs are entitled? 3.4 Before the Trial Court, on the side of the plaintiffs, four witnesses were examined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiffs to prove by leading cogent evidence that the transactions were benami transactions. It is submitted that in the present case, the plaintiffs have failed to discharge the onus to prove that the transactions were benami transactions. It is submitted that, both, the Trial Court as well as the High Court had erroneously shifted the burden upon the defendants to prove that the transactions/Sale Deeds in favour of defendant no.1 were not benami transactions. It is submitted that the aforesaid is contrary to the settled proposition of law laid down by this Court. 5.3 It is further submitted by Shri V. Prabhakar, learned Counsel appearing on behalf of the appellants original defendant nos.1 to 3 that in the present case, solely on considering two documents, namely, Exh. B3, Sale Deed in respect of one of the properties and Exh. B4, the Sale Deed with respect of two properties, the Courts below have considered the entire suit properties as ancestral properties and/or the same properties purchased from the funds raised by selling the ancestral properties. 5.4 It is further submitted by Shri V. Prabhakar, learned Counsel appearing on behalf of the appellants original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .7 Shri V. Prabhakar, learned Counsel appearing on behalf of the appellants original defendant nos.1 to 3 submitted that even otherwise, the plaintiffs have failed to prove by leading cogent evidence that the transactions of sale in favour of defendant no.1 were benami transactions. It is submitted by Shri V. Prabhakar that even in the plaint also there were no specific pleadings that the sale transactions of the suit properties in favour of defendant no.1 were benami transactions. It is submitted that even the learned Trial Court also did not frame any specific issue with respect to benami transactions. It is submitted that even otherwise on merits also and on considering the recent decision of this Court in the case of P. Leelavathi v. V. Shankarnarayana Rao (2019) 6 SCALE 112, in which after considering the earlier decisions of this Court in the case of Jaydayal Poddar v. Bibi Hazra (Mst.) (1974) 1 SCC 3; Thakur Bhim Singh v. Thakur Kan Singh (1980) 3 SCC 72; Binapani Paul v. Pratima Ghosh (2007) 6 SCC 100 and Valliammal v. Subramaniam (2004) 7 SCC 233, it cannot be said that the Sale Deeds executed in favour of defendant no.1 were benami transactions. 5.8 Making above su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dant no.1, also included even the properties exclusively belonging to Narayanasamy Mudaliar. It is submitted, therefore, the intention can be gathered from Exh. B8 and Exh. B9 that the suit properties are Joint Family Properties and therefore liable for partition and not exclusive properties of defendant no.1. 6.5 It is further submitted by Shri G. Balaji, learned Counsel appearing on behalf of the respondents original plaintiffs that the suit properties were purchased in the name of defendant no.1 during the lifetime of Narayanasamy Mudaliar. It is submitted that original defendant no.1 had no independent income. It is submitted that Narayanasamy Mudaliar had ancestral properties/agricultural lands which were generating income and he purchased all the properties in the name of his wifedefendant no.1 from the income generated from the ancestral properties and by selling some of the ancestral properties. 6.6 It is further submitted by Shri G. Balaji, learned Counsel appearing on behalf of the respondentsoriginal plaintiffs that even the statutory presumption which was rebuttable under Section 3 (2) of the Benami Transaction Act, 1988 has been omitted by Benami Amendmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be referred to. 8.1 In the case of Jaydayal Poddar (Supra) it is specifically observed and held by this Court that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be sold. It is further observed that this burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of the benami transaction or establish circumstances unerringly and reasonably raising an interference of that fact. In paragraph 6 of the aforesaid decision, this Court has observed and held as under : 6. It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften, such intention is shrouded in a t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f P. Leelavathi (Supra) this Court held as under : 9.2 In Binapani Paul case (Supra), this Court again had an occasion to consider the nature of benami transactions. After considering a catena of decisions of this Court on the point, this Court in that judgment observed and held that the source of money had never been the sole consideration. It is merely one of the relevant considerations but not determinative in character. This Court ultimately concluded after considering its earlier judgment in the case of Valliammal v. Subramaniam (2004) 7 SCC 233 that while considering whether a particular transaction is benami in nature, the following six circumstances can be taken as a guide: (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty at Exh. B3, might have contributed being the husband and therefore by mere contributing the part sale consideration, it cannot be inferred that Sale Deed in favour of the defendant no.1wife was benami transaction and for and at behalf of the joint family. Therefore, the Trial Court as well as the High Court have committed a grave error in holding the suit properties as benami transactions/ancestral properties on the basis of the document at Exh. B3. 9.2 Similarly, merely because of the stamp duty at the time of the execution of the Sale Deed at Exh. B4 was purchased by Narayanasamy Mudaliar, by that itself it cannot be said that the Sale Deed at Exh. B4 in favour of defendant no.1 was benami transaction. It is required to be noted that except the aforesaid two documentary evidences at Exh. B3 and B4, no other documentary evidence/transaction/Sale Deed in favour of defendant no.1 have been considered by the learned Trial Court and even by the High Court. 9.3 Now, so far as the findings recorded by the Trial Court and the High Court on considering the Release Deed at Exh. A1 viz. the Release Deed executed by Nagabushanam in favour of defendant no. 1 on payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) was on dated 11.11.1951. However, the Sale Deeds at Exh. B3, B4, B5, B6 and B7 which are in favour of defendant no.1 were much prior to the sale of the property at Exh. A3. Therefore, also it cannot be said that the suit properties were purchased in the name of defendant no.1 by Narayanasamy Mudaliar from the funds received by selling of the ancestral properties. 11. Even considering the observations made by this Court in paragraph 10 in the case of Om Prakash Sharma (Supra) it can be said that Narayanasamy Mudaliar might have purchased the properties in the name of defendant no.1 in order to provide his wife with a secured life in the event of his death. It is required to be noted that it was the specific case on behalf of the defendant no.1 that the suit properties were purchased by her from the Stridhana and on selling of the jewellery. 12. It is required to be noted that the benami transaction came to be amended in the year 2016. As per Section 3 of the Benami Transaction (Prohibition) Act 1988, there was a presumption that the transaction made in the name of the wife and children is for their benefit. By Benami Amendment Act, 2016, Section 3 (2) of the Benami T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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