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TMI Blog1988 (8) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... ants contested the claim stating that the relinquishment deed executed by Devallu (exhibit A-1) is true, valid and binding on the plaintiffs since the date of the execution and Devallu lived separately and he had nothing to do with the joint family and the present suit is not maintainable. On this controversy, the court below framed issues as found in paragraph 7 of the judgment and held that the execution of exhibit A-1 is true, valid and binding on the plaintiffs and the plaintiffs are not entitled to claim any share in the suit properties and consequently dismissed the suit. Against the said judgment and decree, the present appeal is filed. Learned counsel for the plaintiffs urged that exhibit A-1 is a nominal one and the finding of the court below to the contrary is vitiated. Besides refuting this contention, learned counsel for the defendants contended that this plea, besides being incorrect, cannot be entertained in view of the provisions of the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance (2 of 1988). Thus, it is seen that two questions arise for consideration (1) Whether the plea of benami is hit by the Ordinance (2 of 1988) ? (2) Wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id the consideration but whether any consideration was paid." Thus, it is seen that, generally, benami transactions are cases where property is purchased by a person in the name of another after paying consideration by himself. In the case of nominal transactions, no title is passed and the title is never intended to be passed. The question is whether section 2 of the Ordinance governs nominal transactions also. No doubt, in one unreported case, I took the view that section 2 covers both the transactions. But in that case, we overlooked section 4 repealing section 82 of the Indian Trusts Act keeping section 81. It is well known that section 82 of the Trusts Act (2 of 1882) governs the case of benami transactions where a person furnishes funds for purchasing the property in the name of third party. But, in the case of section 81, where the owner of a property transfers or bequeathes the property but never intended to dispose of the beneficial interest therein, the transferee or legatee must hold the property for the benefit of the owner or his legal representative. The transferee must hold the property in trust and a resulting trust will arise. In the case of section 82 also, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst plaintiff examined herself as P. W. 1, the maternal uncle of the first defendant as P. W. 2 and her brother, an advocate, as P. W. 3. On behalf of the defendants, the first defendant was examined as D. W. 1 and another witness as D. W. 2, who deposed about the conduct of Devallu. It is the case of the first plaintiff that Devallu her husband, was leading a wayward life and was addicted to drinking and other vices and a deed of relinquishment was taken in the name of the first defendant. In fact, the relinquishment deed recites that it was executed in favour of not only the first defendant but for the benefit of other persons also. The first plaintiff as P. W. 1 states that by the date of death of her husband, the joint family had gold jewellery mentioned in "B" schedule and her husband had taken to vices like drinking, gambling and debauchery and he had taken away the gold from the house and spent the same on vices and that he was beating her and that he contracted debts for his vices and the father-in-law and mother-in-law of P. W. 1 told Devallu that he will have no share in the property and he cannot spoil the same for his vices. The second plaintiff was born after the exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate since 1963. No doubt, at the time of the marriage of the second plaintiff and the execution of exhibit A-1, he was young. Suggestions regarding the non-execution of exhibit A-1 in favour of the first plaintiff and the execution in favour of the first defendant were satisfactorily answered by this witness. No doubt, he stated that he was not present at the time of the execution of exhibit A-1. He also denied the suggestion that Devallu received the consideration under exhibit A-1. He deposed that Devallu died in the family house at Tuni and he underwent treatment at Tuni itself and stated that till his death Devallu did not give up his bad ways and also did not give up drinking. P. W. 3 deposed that the first defendant said in the first instance that he would give money for the marriage of the second plaintiff in the month of February but refused to give the same in March. This witness also deposed that Devallu was convicted for his bad ways in a criminal case, as evidenced by exhibit A-14, though he cannot give the details of the criminal case. He also stated that the first plaintiff lived along with her husband till his death. When we come to the evidence of the defendants, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nquishment deed. Learned counsel wants to sustain the claim of the defendants, raising the contention that exhibit A-1 is in the nature of a partition deed. In view of the fact that the first defendant himself stated that the valuation of the plaint 'A' schedule house alone is Rs. 8,000, it can be said that Rs. 2,000 given to the husband of the first plaintiff at that time cannot represent his one fourth share. Subsequently, three items were sold. The sale of one item is evidenced by exhibit A-11. Hence, I have no hesitation to hold that exhibit A-1 cannot be treated as a partition deed. Assuming it to be true, on the question of the nature of exhibit A- 1, I hold that it was executed nominally to protect the interests of Devallu's family. By the date of the execution of exhibit A-1, the first plaintiff was married. No provision was made in exhibit A-1 for the maintenance of the plaintiffs. The apparent tenor of exhibit A-1 is only a relinquishment deed. The evidence discloses that Devallu continued to live in the family house till his death. I have already held that there is no evidence in support of the business at Chebrolu. Further, no evidence is forthcoming about the payment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso the evidence of P. W. s 2 and 3 clearly establish that the deed was executed nominally to protect the interests of the family of Devallu. In the absence of any evidence that Devallu had any independent business or that the amount paid to him is sufficient to represent the interests of his share, I cannot hold that exhibit A-1 is valid and binding on the plaintiffs. Apart from want of proof of the payment of Rs. 2,000 under exhibit A-1, it does not represent the correct share of Devallu. Hence, I hold that exhibit A-1 does not operate as a partition deed and it was intended to save the property from the wayward life of Devallu. Hence, I hold that the first plaintiff is entitled to a one-sixth share in the plaint 'A' schedule properties. The court below held that the 'B' schedule property is non-existing. Hence, the plaintiffs cannot get any share in respect of the same. In the result, the appeal is allowed in part. There shall be a decree for partition of 'A' schedule properties allotting one-sixth share to the plaintiffs with costs here as well as in the court below. The decree of the lower court in respect of 'B' schedule property is confirmed. The defendants shall pay the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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