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TMI Blog2020 (9) TMI 754X X X X Extracts X X X X X X X X Extracts X X X X ..... fact arrived at by the courts below until and unless it is found that the concurrent findings of fact are perverse and not based on the sound reasoning. This Court does not find that the concurrent findings of the fact arrived at by the courts below are either perverse or without any reason or based on the non consideration of important piece of evidence or admission of some of the parties. Therefore, this Court is of the view that there is absolutely no warrants to interfere with the concurrent findings of fact arrived at by the courts below, which rendered on consideration of pleadings as well as the oral and documentary evidence on record. Accordingly, this Court is of the considered opinion that no substantial questions of law are involved in the second appeal. Be that as it may, all the substantial questions of law formulated by this Court in this Second Appeal, are answered in favour of the plaintiffs and as against the defendants. - S.A.No.1447 of 2005 and CMP.No.18904 of 2005 - - - Dated:- 2-6-2020 - Mr. Justice G.K. Ilanthiraiyan For the Appellant : Mr.S.Y.Masood For the Respondents : Mr.C.T.Mohan JUDGMENT This second appeal is directed as against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they are not fully entitled to. Under these circumstances, the first defendant was driven out from the suit property and when the plaintiffs were leaving the suit property, they left jewels weighing 20 sovereigns in the suit house. While being so, the defendants 1 to 4 have arranged to sell the suit property in favour of the fifth defendant. Though, the fifth defendant had knowledge about the suit filed by the plaintiffs in O.S.No.2735 of 1986, he purchased the suit property for very low price of ₹ 75,000/- by registered sale deed dated 30.09.1992. The defendants 1 to 4 also knew very well about their title over the property and even then they sold out the suit property without consent of the plaintiffs in favour of the fifth defendant. Therefore, they are also liable to pay means profit. Hence, the suit. 4. The first defendant filed written statement and stated that except the relationship between the plaintiffs and the defendants, all the averments made in the plaint are false and frivolous. The suit property belongs to the husband of the first defendant and purchased the same by out of his own funds. It is completely false to state that only the first defendant s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and claiming share in the property as the legal heirs of the said P.Viswanathan. The second and third plaintiffs are not the legal heirs of the said Viswanathan. When the suit itself is filed on the strength of the legal heirs of the deceased Panchacharam, they cannot claim any share on the strength of the legal heirs of the said P.Viswanathan. 4.2 Further stated that the present suit is barred by order 2 Rule 2 of Code of Civil Procedure, since already the first plaintiff filed suit in O.S.No.2735 of 1986 against the first defendant and the employer of the first defendant s husband, namely Dock Labour Board on the strength of the legal heirship of her son deceased P.Viswanathan claiming a share from the terminal benefits of the deceased Viswanathan. Hence, the suit is barred by law and prayed for dismissal of the suit. 4.3 He also filed additional written statement and stated that the suit property did not even belong to the husband of the first defendant, namely P.Viswanathan and after death of her husband, the first defendant purchased the suit property by allotment from Tamil Nadu Slum Clearance Board, that too after paying the entire sale consideration by instalments. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenging the said decree for partition of 1/5th share and the lower appellate court remanded the suit with the direction of frame two additional issues whether the courts below are correct in granting a decree for 3/4th share contrary to the scope of the order of remand dated 23.12.1997. (iii ) When the lower appellate court failed to frame points for determine while is mandatory under Order 41 Rule 31 CPC whether the judgment of the lower appellate court is sustainable in law? 8. The learned counsel for the fifth defendant submitted that the suit itself is barred by limitation. Originally the suit property was purchased by registered sale deed dated 29.09.1977 by the husband of the first defendant. The husband of the first defendant died on 27.01.1986, whereas the suit is filed on 12.09.1986. The plaintiffs conveniently filed suit after the death of the husband of the first plaintiff and also the death of the husband of the first defendant. The first defendant s husband died on 27.01.1986. The first plaintiff s husband died in the month of July 1981. Further submitted that the suit property was purchased only from the income of the first defendant s husband, since he w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiff is that she is the mother of the husband of the first defendant and the second and third plaintiffs are unmarried sisters of him. The first plaintiff married with one Panchacharam and gave birth to two female child and one male child, namely, plaintiffs 1 and 2 and the deceased husband of the first defendant. Admittedly, the husband of the first plaintiff was working in private concern and received a sum of ₹ 600/- as monthly salary and he was retired from service in 1975 and received a sum of ₹ 9444/- as terminal benefits. The suit property was purchased in the year 1977 by registered sale deed dated 29.09.1977 from Majan Bi Ammal. The employment details of the husband of the first plaintiff were marked as Ex.A.1 and Ex.A.2. Whereas the husband of the first defendant was employed in Dock Labour Board and he had very good income from his employment. Therefore, on his own income, the suit property was purchased in the year 1977. The first plaintiff already filed suit in O.S.No.2735 of 1986 on the file of the I Assistant City Civil Court, Chennai against the first defendant and the Dock Labour Board claiming share in the terminal benefits of her son late Viswan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In fact, she categorically stated in the written statement that the entire sale consideration was paid from the income of the husband of the first defendant. The second and third plaintiffs are daughters of the first plaintiff and were also unmarried daughters at the time of filing the suit. Therefore, the trial court rightly allowed the suit and declared that the plaintiffs are entitled to have their share in the suit property. 14. The learned counsel for the fifth defendant specifically contended that the entire transaction is hit by Section 4(1) of Prohibition of Benami Property Transactions Act, 1988 and as such the suit itself is not maintainable. The learned counsel for the plaintiffs submitted that the suit was filed on 12.09.1986 with the pauper suit application, and after allowing the application filed by the plaintiffs to declare them as pauper, the main suit was taken on file in the year 1989, whereas the said Act came into force in the year 1988 and as such the Act is not applicable to the case on hand. In this regard, he relied upon the judgment in the case of C.Gangacharan Vs. C.Narayanan reported in (2000) 1 SCC 459 , the head note of which is extracte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Presumption under, that the property purchased in the name of wife or unmarried daughter was for the benefit of the wife or the daughter Nature of Held, rebuttable by production of evidences or other materials Statute Law Presumptions C. Benami Transactions (Prohibition) Act, 1988 Ss. 2(a), 3(2) and 4(2) Concurrent findings of fact recorded by trial court and first appellate court that the transaction was benami in nature Scope of interference by High Court in second appeal, with such findings Where such findings were found to be rendered on consideration of the pleadings and on oral and documentary evidence on record and neither perverse nor without any reason nor suffering from nonconsideration of any important evidence or admission of any party, interference therewith by High Court in second appeal, held not justified Civil Procedure Code, 1908 S.100. 16. In the above judgments, the Hon ble Supreme Court of India held that the suit was filed long before the coming into force of the Prohibition of Benami Property Transactions Act, 1988. Therefore, the provisions under Section 4(2) of the said Act is not applicable to the present case. In the case on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e bar imposed in Section 4(2) of the Act, let us now confine ourselves to the bar imposed in Section 4(2) of the Act of taking this plea in his defence and to the question of retrospective operation of this section or this provision is prospective in operation. 17. Now, therefore, the question arises is whether under section 4(2) of the Act, defence can be allowed to be raised on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action or on behalf of a person claiming to be real owner of such property. As noted already, this question cropped up for decision before this Court in the case of Mithilesh Kumari and Another Vs. Prem Behari Khare 1989 (2) SCC 95. In fact, the retrospective operation of this provision, as noted herein earlier, was answered in the affirmative in the aforesaid decision. However, the correctness of that decision was doubted and an order was passed by this Court subsequently referring this question of retrospectivity for decision to a 3-Judges Bench of this Court. In the case of R.Rajagopal Reddy (Dead) by LRs. And Ors. Vs. Padm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which were already filed and entertained prior to the date when the section came into force and which has the effect of destroying the then existing right of plaintiff in connection with the suit property cannot be sustained in the face of the clear language of Section 4(1). It has to be visualized that the legislature in its wisdom has not expressly made Section 4 retrospective. Then to imply by necessary implication that Section 4 would have retrospective effect and would cover pending litigations filed prior to coming into force of the section would amount to taking a view which would run counter to the legislative scheme and intent projected by various provisions of the Act to which we have referred earlier. It is, however, true as held by the Division Bench that on the express language of Section 4(1) any right inhering in the real owner in respect of any property held benami would get effaced once Section 4(1) operated, even if such transaction had been entered into prior to the coming into operation of Section 4(1), and henceafter Section 4(1) applied no suit can lie in respect to such a past benami transaction. To that extent the section may be retroactive. 20. In our v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case on hand, even before the said Act, the suit was filed and therefore the suit is very much maintainable and Section 4 (2) of the said Act is not applicable to the case on hand. Further, the Hon ble Supreme Court of India held that it is not permissible to the High Court in the second appeal to come to contrary findings of its own only on the basis of arguments of learned counsel without considering the findings of the trial court as well as the first appellate court. The High Court in the second appeal is not entitled to interfere with the concurrent findings of fact arrived at by the courts below until and unless it is found that the concurrent findings of fact are perverse and not based on the sound reasoning. 20. Therefore, this Court does not find that the concurrent findings of the fact arrived at by the courts below are either perverse or without any reason or based on the non consideration of important piece of evidence or admission of some of the parties. Therefore, this Court is of the view that there is absolutely no warrants to interfere with the concurrent findings of fact arrived at by the courts below, which rendered on consideration of pleadings as well as t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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