9911796707
TMI Blog2021 (6) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... e in its effect. There is a different version in the written statement of the 1st respondent that, when there was a notice issued by Registration Department after registration of these sale deeds, when he sought an advice from his father, these sale deeds were retained by him. Nonetheless, these circumstances are indicative of the fact that these brothers were given to keeping these records with their father and in his custody. Further to note in this context is that they were all living and staying in the same premises during that time. Therefore, there is nothing unusual either for the 1st respondent or the 2nd appellant to hand over these title deeds or documents to their father. Even otherwise, participation of the 1st appellant in bargaining to acquire this house or the site, which the 2nd appellant purchased from the very same vendors, cannot be an unusual factor. When the burden is on the appellants to establish the nature of these sale transactions of such tainted nature to call the 1st respondent an ostensible owner, who held them benami for the joint family, it is for them to place cogent and convincing material of acceptable nature. The material on record indicates that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the year 1979. Beneficial enjoyment of certain items of the property of the erstwhile joint Hindu family after partition and division in status, mind and kind, cannot clothe the entire set up to call an unity in right, possession and enjoyment, as joint tenants. On twin grounds that the suit as such could not have been maintained in respect of item 1 of the plaint A schedule viz., on the ground of benami set up by the appellants and on another ground that the evidence adduced by them at the trial is not sufficient to support their stand in respect of this house qua the 1st respondent, all the contentions of the appellants should be rejected. Findings of the learned trial Judge in this context with reference to application of Section 4(1) of the Prohibition of Benami Property Transactions Act, 1988 should be upheld and that item No. 1 of the plaint A schedule thus be held that it is the property of the 1st appellant, who has right, title and interest to it by virtue of Ex. A1 and Ex. A2 sale deeds. Thus, this point is answered. Whether Ex. A24 Will is true, valid and binding on the respondents? - 1st appellant died during pendency of the suit - HELD THAT:- While considering issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Court are proper and if require interference? - HELD THAT:- As a consequence, the ultimate relief granted by the learned trial Judge in substance, did not get altered since preliminary decree passed is confined only with reference to items 2 and 3 of plaint A schedule. The findings relating to devolvement or distribution of 1/4th share allottable to the deceased 1st appellant, gets altered. In the sense in terms of Section 6 of the Hindu Succession Act prior to amendment in the year 2005, 1/4th share of the 1st appellant in items 2 and 3 of the plaint A schedule shall be divided among the 1st appellant, the 2nd appellant, 1st respondent and 2nd respondent notionally. Since the 2nd appellant and 2nd respondent are no more, their respective legal heirs are entitled to the share allottable to them in respective proportions. Therefore, items 1 and 2 of plaint A schedule be divided into three (03) equal shares and the 1st respondent is entitled for one such share, legal heirs of the 2nd appellant viz., the appellants 3 and 4 and respondents 7 and 8 are entitled for one such share and whereas the legal heirs of the 2nd respondent are entitled for one such share. Accordingly, there shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L.Rs. of the 6th respondent, who was the wife of the deceased 2nd appellant. 5. The appeal against the 3rd respondent was dismissed for default by an order dated 18.10.2011. No attempt was made to get the appeal restored against her. 6. The deceased 1st appellant was running firewood business in Item No. 2 of plaint 'A' schedule. His elder brother by name Sri Vemula Sreerama Murthy had no issues and had adopted Sri Srimannarayana Murthy, one of the sons of the 1st appellant. Under a registered partition deed dated 10.11.1941 (Ex. B1), Sri Vemula Sreerama Murthy, their another brother Sri Venkatachalam and the 1st appellant got divided their properties. 7. Out of his business, the 1st appellant had also acquired substantial extent of lands. There was a division among the 1st appellant and his sons viz., the 2nd appellant and the respondents 1 and 2 evidenced by a partition list dated 14.06.1979. (This partition list is not a part of the record in this case). Prior to the year 1979, all of them got divided their movable properties. However, at the time when the partition was entered into in the year 1979, an extent of Ac. 2-00 of agricultural land in Kankipudi village apar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 979 all the properties were divided completely except the one that were left joint. He claimed that the saw machine viz., item No. 2 of plaint 'B' schedule exclusively belonged to him. The 1st respondent also denied that there was a common mess for all of them till the year 1985 contending that they were all living separately in the same house in different portions. He further contended that the title deeds relating to item No. 1 of plaint 'A' schedule were given by him to his father, when a notice was received from the officer of the Sub-Registrar, to get his advice, which however the 1st appellant did not return. 11. While admitting that differences arose among women members of the family in the year 1985, the 1st respondent claimed that the appellants 1 and 2 agreed to pay rent for the portions in occupation to him in item No. 1 of the plaint 'A' schedule and that when they defaulted in paying the rents regularly he also instituted a eviction petition in RCC No. 31 of 1989 on the file of the Court of the learned Principal District Munsif-cum-Rent Controller, Machilipatnam. He denied of the mediation with reference to the plaint schedule properties, while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants to claim item No. 1 of the plaint 'A' schedule properties on account of the operation of Section 4(1) of the Prohibition of Benami Property Transactions Act, 1988 though on facts held that there is material to support the version of the 1st appellant that he purchased this property in the name of the 1st respondent. The learned trial Judge also held that items 1 and 2 of the plaint 'B' schedule exclusively belonged to the 1st respondent and that these parties are entitled for 1/4th share each in items 2 and 3 of plaint 'A' schedule. Accordingly, a preliminary decree was passed in respect of items 2 and 3 of plaint 'A' schedule, while dismissing the remaining claim of the appellants. 17. It is against this decree and judgment, the present appeal is preferred by the appellants and as against the findings recorded adversely against him the 1st respondent presented cross-objections. 18. Sri K. Narasimham, learned counsel for the appellants and Sri O. Manohar Reddy, learned counsel for the respondents, addressed arguments. 19. Now, the following points arise for determination: 1. Whether items No. 1 of the plaint 'A' schedule was pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 1st respondent and that this house was purchased by the deceased 1st appellant from and out of the joint family funds, which he could pool up. The 1st respondent is disputing it on the ground that he had purchased this house from and out of his own funds. 24. It is an undisputed fact that the deceased 1st appellant was running firewood shop at Machilipatnam since about the year 1947 and the material on record makes out that even after his demise, when being run by his sons, it enjoyed good patronage. Though the material on record is that the deceased 1st appellant and his two brothers got divided their properties under Ex. B1 registered partition deed dated 10.11.1941, the property acquired by him thereunder was meager, which apparently included a part of the house at Rajupet at Machilipatnam. The parties are in agreement in saying that it was by the efforts of the 1st appellant, in this firewood business, almost about Ac. 82-00 of land was acquired by the 1st appellant. Everyone of his sons could get Ac. 20-00 of land, in the partition of 1979. So also the 1st appellant. According to the 1st respondent as D.W. 1 that he was allotted Ac. 12-00 of dry land and Ac. 8-00 of wet la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibition of Benami Property Transactions Act, 1988. 30. Section 4(1) of this Act reads as under: 4. Prohibition of the right to recover property held benami.--(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. 31. A careful reading and consideration of the same indicates that, a suit or claim or action basing on a plea of benami in respect of its subject matter shall not lie against the person who claims being the real owner of this property. 32. The 1st respondent is the owner, who purchased this property in terms of Ex. A1 and Ex. A2 title deeds. It should be noted that execution of Ex. A1 and Ex. A2 sale deeds by the erstwhile owners is not disputed and the fact that they stand in the name of the 1st respondent. The prohibition envisaged in terms of Section 4(1) of the Act is absolute and imperative in its effect. 33. Only exception in relation thereto is in terms of Section 4(3) of this Act then in force. Section 4(3) of this Act reads as under: 4(3) - Nothing in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeds. 39. However, the learned trial Judge took into consideration the evidence on record particularly of the deceased appellants 1 and 2 as P.W. 1 and P.W. 2 respectively and held that it was the deceased 1st appellant who contributed funds to acquire this house. 40. The 1st appellant deposed at the trial that he had pooled up necessary funds to purchase this house upon borrowing from one Smt. Seeram Anjamma of ₹ 20,000/-, selling away gold for ₹ 23,000/-, upon sale of Ac. 2-00 of land for ₹ 14,600/-, the profits from then existing business of ₹ 10,000/- and the proceeds realised of ₹ 20,000/- from the casuarina plantation. 41. In support of this version, no documentary proof was adduced at the trial. It cannot be stated that there was no possibility of adducing such proof at the trial. The sale of gold could be evidenced by necessary record as well as sale of Ac. 2-00 of land and profits from casuarina plantation. It is also in the evidence of P.W. 1 that he was maintaining accounts relating to the firewood business as long as he was managing it till the year 1986. Thus, books of accounts could have been produced at the trial. When it is the versi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only item No. 1 of the plaint 'A' schedule but also a site behind this house. Admittedly the 2nd appellant had purchased this site from the same vendors. He further deposed that the documents in relation to purchase of these two properties were obtained on the one and the same day. 45. P.W. 2 was cross-examined with reference to Ex. A13 and Ex. A22 letters. In fact, Ex. A22 letter is not at all concerned to this transaction and its contents make out a completely different transaction in respect of taking away an almirah from this house on behalf of these vendors. 46. Therefore, from the testimony of P.W. 2 itself there is an explanation available for retaining these sale deeds by the 1st appellant. 47. However, there is a different version in the written statement of the 1st respondent that, when there was a notice issued by Registration Department after registration of these sale deeds, when he sought an advice from his father, these sale deeds were retained by him. Nonetheless, these circumstances are indicative of the fact that these brothers were given to keeping these records with their father and in his custody. Further to note in this context is that they were all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on by the appellants and to explain the purpose behind in obtaining Ex. A1 and Ex. A2 in the name of the 1st appellant, falls to ground on their own showing. 52. One of the contentions advanced in this appeal for the appellants is that there is sufficient proof of continuation of the joint Hindu family of these parties and retention of certain property for the benefit of this joint family is a strong indicator. There is nothing on record to indicate that this erstwhile joint Hindu family continued and leaving aside certain properties was for common benefit and enjoyment. Apparently, items 2 and 3 of the plaint 'A' schedule were retained where the firewood business was continuing even when the 1st appellant was attending to it, after the partition in the year 1979. Beneficial enjoyment of certain items of the property of the erstwhile joint Hindu family after partition and division in status, mind and kind, cannot clothe the entire set up to call an unity in right, possession and enjoyment, as joint tenants. 53. Therefore, on twin grounds that the suit as such could not have been maintained in respect of item 1 of the plaint 'A' schedule viz., on the ground of bena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 1st appellant. However, at the trial, as seen from the tenor of cross-examination of P.W. 2 and P.W. 3, the defence of the 2nd respondent was that this Will is a fabrication by the 2nd appellant. 60. The 2nd appellant as P.W. 2 deposed that he was present during the transaction when this Will was prepared at the instance of his father. The contents of this Will are that the 2nd appellant and his family members are the ultimate beneficiaries under this bequest. Thus, highly interested nature in this bequest is seen, of P.W. 2. 61. Added to it, in cross-examination, the 2nd appellant clearly stated as P.W. 2 that the dispute is between himself and the 1st respondent. It was so stated by him in the context of referring to a mediation evidenced by Ex. A25- agreement. This agreement was relied on in the course of trial for the appellants contending that the 1st respondent admitted that item no. 1 of the plaint 'A' schedule is a joint family property. 62. Cross-examination of P.W. 2 makes out that he has not satisfied with this transaction. It is in his testimony that their father did not like this mediation and did not participate therein. He himself described Ex. A25 an in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible for the appellants in this respect. It is a serious and fatal omission to affect the credibility of this transaction. 67. As seen from the testimony of P.W. 3, apparently, he is an interested witness in the 2nd appellant. In terms of Section 68 of the Evidence Act read with Section 63(c) of the Indian Succession Act, it is obligatory on the part of the appellant to examine the attestors of this Will. Failure to examine other attestors is another circumstance to consider and no reason is assigned by the appellants for this serious omission. They should have examined the scribe also in this process. 68. Thus, the evidence adduced by the appellants to prove original of Ex. X1 Will suffered from such serious deficiency fatally affecting their claim. 69. While considering issue No. 2 and additional issues 1 and 2 framed on 15.03.1996 and issues 1 and 2 framed on 20.02.1997 the learned trial Judge accepted this Will. The entire process of acceptance of Ex. X1 by the learned trial Judge is bereft of any reasons. The requirements of law as discussed above in the context of application of Section 68 of the Evidence Act and Section 63 of the Indian Succession Act, more importantly t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r remained property for common use of all these parties. Nor evidence offered by them proved that this tractor was acquired jointly by the 2nd appellant and the 1st respondent. 74. With reference to item no. 2 of plaint 'B' schedule Saw Machine, one factor to indicate that it exclusively belonged to the 1st respondent is that the licence to run it stood in his name. According to him as D.W. 1, it was purchased in the year 1976 or 1977 at Kodali. Whatever income from this machine, even according to P.W. 2, was shown in the name of the 1st respondent. Thus, it is clear that it was the first 1st respondent who was attending to this machine and was receiving income therefrom. During pendency of this suit, the 1st respondent also faced prosecution on account of it, from Factory Inspector in STC No. 19 of 1997 on the file of the Court of one of the Magistrates at Machilipatnam. He was convicted and was directed to pay a fine of ₹ 900/- as is seen from Ex. B7 receipt dated 26.07.1997. 75. There is no reference to these two items in Ex. A11 legal notice issued by the 1st and 2nd appellants to the 1st respondent claiming that they are the properties of the then joint family. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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