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TMI Blog1997 (3) TMI 642X X X X Extracts X X X X X X X X Extracts X X X X ..... and the 2nd defendant are the daughter and son of the said Kesava Padayachi and the 1st defendant and that Kesava Padayachi died intestate. The further case of the plaintiff was that the suit properties are the self-acquired properties of Kesava Padayachi and, therefore, on his death, each of the parties to the suit are entitled to 1/3rd share. The defendants 1 and 2 are said to be in possession realising the income from the immovable properties and also appropriating them since the date of death of Kesava Padayachi and without paying anything to the plaintiff and the unreasonable attitude taken by the defendants has driven the plaintiff to the necessity of filing the suit, for the relied noticed supra. The defendants are also, according to the plaintiff, liable to account to the plaintiff for the income and mesne profits under Order 20, Rule 18, C.P.C. 4. The 2nd defendant has filed a written statement which was adopted by the 1st respondent contending that the suit properties are not the self-acquired properties of Kesava Padayachi, that except the properties which do not belong to Kesava Padayachi's family, as such all other properties are joint family properties and tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... standing in the name of the 1st defendant mother and that therefore, the judgment and decree of the trial court, in respect of items 1 to 4 of Part 3 of the plaint A schedule and item 3 of part 4 plaint 'A' Schedule are required to be set aside and consequently, held these and items 3 of Part 4 of plaint 'A' schedule properties to belong exclusively to the 1st defendant. In other respects, the appeal came to be dismissed as pointed out earlier. Aggrieved, the plaintiff has filed the present appeal. 7. Mr. M.N. Muthukumaran, learned Counsel appearing for the appellant/plaintiff, contended that the learned single Judge was in error in reversing the judgment of the trial Court in respect of items standing in the name of the 1st defendant and that the learned single Judge has overlooked the relevant provisions in which certain exceptions were recognised in the very Act and the case on hand come within the excepted categories and at any rate, the decision of the Apex Court relied upon by the learned single Judge will not apply to the case on hand. It was also contended that the 1st defendant was only holding the property as a trustee for the other heirs and the very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the extent that the earlier decision held the provisions of Benami Transaction (Prohibition) Act, 1988 to be of retrospective or retroactive effect and consequent impact even on pending proceedings, while dealing with this aspect, in R. Rajagopal Reddy v. P. Chandrasekaran it was held that Section 4(1) of the Act cannot be applied to 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 any other person, if such proceeding is initiated by or on behalf of a person claiming to be the real owner thereof prior to the coming into force of Section 4(1) of the Act. It was also observed further that so far as Section 4(2) is concerned, once Section 4(2) applies to a given case, no defence will be permitted or allowed in any suit claim or action by or on behalf of the person claiming to be the real owner of such property held benami. Strong reliance has been placed by the learned Counsel for the appellant to the said subsequent ruling of the Apex Court. 11. In Nand Kishore v. Sushila it was held that the prohibition to raise the plea of benami is not applicable to the property purchased by a person in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale; and (6) the conduct of the parties in dealing with the property after the sale, and that those circumstances stated supra according to the learned Counsel for the appellant stood satisfied in this case sufficiently to warrant that the properties have been purchased by the husband in the name of his wife, benami. 13. This question as to whether a particular sale or purchase is benami has different shades or characteristics taking colour from the facts and circumstances present in each of the case before court, the parties who asserts such claim, the manner in which it is asserted and the mode of proof adopted. The essence of benami has been held to lie mainly in the, intention of the party or parties concerned and have I always been considered to be shrouded in a thick veil which cannot be easily pierced through. But such difficulties were held equally not sufficient to relieve the person asserting the transaction to be benami of the onerous burden cast upon him to prove the object or intention in acquiring such properties by anyone in the name of another, particularly as in a case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ors. v. Elumalai Naicker ; Muthuswami Gounder v. Rangammal (DB) . A careful perusal of these decisions and the principles laid down therein would go to show that the nature as well as the extent of onus as also the burden of proof will vary from case to case. 14. So far as the case on hand is concerned, it is not the case of the plaintiff that the suit properties including the items of properties standing in the name of the 1st respondent/1st defendant are the ancestral properties having joint family character even in the hands of Kesava Padayachi who undisputedly and even according to the plaintiff acquired these items. Even the 2nd defendant, who tried to project. The claim that some of the items of the properties are joint family properties in the hands of the father, Kesava Padayachi, failed to substantiate the same. If the family properties which are the subject matter of the suit for partition are the self-acquisitions of Kesava Padayachi and Kesava Padayachi has chosen to purchase some of the items in the name of his wife, apparently to benefit her, merely because the purchases were said to have been made by the husband from his funds or that it was, along with the other ..... X X X X Extracts X X X X X X X X Extracts X X X X
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