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TMI Blog2015 (3) TMI 1405X X X X Extracts X X X X X X X X Extracts X X X X ..... rverse finding that the purchase of the suit property in the name of the first appellant was made entirely out of the funds provided by the respondent? - The respondent/plaintiff was able to prove that it was he who provided the funds for the purchase of the house site under Ex. B1 in the name of his wife, namely the first respondent/first defendant. The concurrent findings of the courts below to the above said effect cannot be said to be defective or erroneous, much less perverse warranting an interference by this Court in exercise of its power in this second appeal. The second substantial question of law is answered accordingly. There was a settlement between the respondent/plaintiff and his wife, the first appellant/first defendant on 25.09.1990 and the said settlement was arrived at in the presence of Panchayatdhars and the Inspector of Police, Ayakudi Police Station - The document referred to in Paragraph 6 of the written statement of the first appellant/first defendant as containing the acknowledgment made by the respondent/plaintiff has not seen the light of the day. In the absence of any witness and in the absence of any document, based on the mere averment made in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s/surviving defendants. The third substantial question of law, accordingly decided in favour of the appellants/surviving defendants holding that the first appellant/first defendant shall be entitled to the suit property purchased in her name. In view of the foregoing discussions, especially the answer given to the third substantial question of law, the appellants are bound to succeed in the second appeal and the decree passed by the lower appellate court confirming the decree passed by the trial court is liable to be set aside, with the result that the suit itself is liable to be dismissed. - S.A.No.1260 of 2006 and M.P.No.2 of 2006 - - - Dated:- 17-3-2015 - THE HONOURABLE MR. JUSTICE P.R. SHIVAKUMAR For the Appellant : Mr.M.Ravi For the Respondent : Mr.P.Jeyaprakasam JUDGMENT P.R. Shivakumar, J. 1. The defendants 1, 2 and 4 in the original suit are the appellants in the second appeal. The sole plaintiff in the original suit is the respondent in the second appeal. The suit O.S. No. 8475 of l995 was filed by Masanam, the respondent herein against the appellants herein and one N. Chinniah. The said Chinniah figured as third defendant in the said suit. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be null and void, for a permanent injunction restraining the second and fourth defendants from putting up any further construction or making improvements in the plaint schedule property and also for costs. Initially, the suit was filed against first and second appellants herein and Chinniah, arraying them as defendants 1,2 and 3 respectively and the prayer regarding sale deed dated 19.01.1994 by setting aside the same as null and void came to be made on the assumption that the second appellant/Dharmalingam alone was the purchaser under the said sale transaction. However, during the pendency of the suit, the plaint was amended to the effect that the conveyance made under the sale deed dated 19.01.1994 by the first appellant was in favour of the second appellant as well as the third appellant (Dhanasingh) and the said Dhanasingh was impleaded as a defendant in the suit and ranked as fourth defendant. The above said reliefs were claimed by the respondent/plaintiff on the basis of the plaint averments that it was he who purchased the property with his own funds in the name of his wife out of pure love and affection towards her and with the intention of providing a security for his w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, at the time of hearing the second appeal, the questions were fine tuned besides splitting the second question into two and reassigning question No. 3 as question No. 4. Thus the substantial questions of law were reformulated as follows: 1) Whether the Courts below erred in law in relying upon Exs. A13, A14, A15, A17 and A18 to reject the case of the appellants? 2) Whether the Courts below have rendered a perverse finding that the purchase of the suit property in the name of the first appellant was made entirely out of the funds provided by the respondent? 3) Whether the Courts below failed to properly construe the scope of Section 3(2) and Section 4 of the Benami Transaction Prohibition Act, 1988 in coming to the conclusion that the respondent/plaintiff was entitled to maintain his claim against the appellants? 4) Whether the Courts below erred in law in ignoring the settlement arrived at in the presence of pachayatdhars and the Inspector of Police, Ayyakudi on 25.09.1990 by which the suit house site along with the original documents pertaining to the suit property was accepted by the respondent/plaintiff to be the property of the first appellant/first def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ouse site in the name of his wife. In the said communication, he was asked to furnish the total value of the property purchased by him in the name of his wife. Ex. A5 is the certified extract from the Service Register of the respondent/plaintiff and it evidences that the purchase of the suit property in the name of his wife under Ex. B1 sale deed dated 30.12.1985 for a sum of ₹ 17,500/- was recorded in his Service Register. A receipt dated 31.08.1985 showing that the respondent/plaintiff paid a sum of ₹ 10,000/- to one R. Ramani, the vendor under Ex. B1 sale deed dated 30.12.1985. Ex. A6 is the office copy of the notice dated 16.01.1992 sent by the respondent herein/plaintiff through his lawyer to his wife, namely the first appellant herein/first defendant and his father-in-law and N. Chinniah who figured as third defendant in the suit. Exs. A7 and A8 are the postal acknowledgments in proof of service of the above said notice on those defendants. Apart from the above said documents, the respondent herein/plaintiff relied on his own testimony as P.W. 1 and that of P.W.-2B.Pitchaiah, a co-worker for proving the case that it was he who purchased the suit property with his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chase of the suit property under Ex. B1. From Ex. A14, it is obvious that the first appellant/first defendant sought maintenance on the basis of her contention made in the maintenance petition that she did not have any property of her own and she did not have any separate income to maintain herself. The sale consideration quoted under Ex. B1 sale deed is ₹ 17,500/-. The respondent herein/plaintiff was getting a sum of ₹ 2,500/- per month as salary, whereas admittedly the first appellant/first defendant was unemployed and she did not have any other source of income. In order to show that such huge amount could not have been mobilized by the first respondent/first defendant and probablize the case of the respondent herein/plaintiff that he alone provided the funds for the purchase of the suit property in the name of his wife, he produced Ex. A14. The courts below have also relied on Ex. A14 for the above said limited purpose. Therefore, this Court does not find any defect or infirmity in the reliance made by the Courts below on Ex. A14 for the above said purpose. 9. In view of the forgoing discussions, this Court hereby holds that the Courts below did not rely on Exs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said date was only ₹ 700/-. A further sum of ₹ 300/- came to be added subsequently in 1988 showing a credit balance of ₹ 1000/-. The next entry was made only on 12.06.1988. None of the entries found in the said document is helpful to the respondent/plaintiff to show that any amount availed as loan from the said society was used for the purchase of the suit house site. A receipt showing payment of ₹ 10,000/- on 31.08.1985 to the vendor and Ex. B1-Sale deed was also produced by the respondent/plaintiff. It is an unstamped receipt. Stamp duty and penalty were collected and the document was admitted in evidence and marked as Ex. B21. It shows that a sum of ₹ 10,000/- was paid to R. Ramani, the vendor under Ex. B1 by the respondent/plaintiff. The purpose of such payment has not been mentioned in Ex. A21 receipt. However, it is the clear evidence of P.W. 2 Pithaiah that the said amount was paid by the respondent/plaintiff to Ramani on 31.08.1985 at the residence of Ramani towards the sale consideration for the suit house site. It is also his clear evidence that he attested the said document as a witness. There is no contra evidence to show that the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant/first defendant. 13. The discussions appearing supra shall make it clear that the respondent/plaintiff was able to prove that it was he who provided the funds for the purchase of the house site under Ex. B1 in the name of his wife, namely the first respondent/first defendant. The concurrent findings of the courts below to the above said effect cannot be said to be defective or erroneous, much less perverse warranting an interference by this Court in exercise of its power in this second appeal. The second substantial question of law is answered accordingly. 14. Before dealing with the third substantial question of law, it shall be convenient to deal with the fourth substantial question of law. The fourth substantial question of law has been formulated on the basis of the contention of the appellants that there was a settlement between the respondent/plaintiff and his wife, the first appellant/first defendant on 25.09.1990 and the said settlement was arrived at in the presence of Panchayatdhars and the Inspector of Police, Ayakudi Police Station. It is the further contention of the appellants that in the said Panchayat, the respondent herein/plaintiff admitted that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntradiction in paragraph 6 of the written statement of the first appellant herein/first defendant. The averment found therein is to the effect that pursuant to the complaint made by the first appellant/first defendant at Ayakudi Police on 09.05.1990, the respondent/plaintiff returned the documents relating to the suit property and jewels along with other Stridhana properties on 29.05.1990 in the presence of Panchayatdhars and Inspector of Police, Ayakudi Police Station and that the same was acknowledged by the respondent herein/plaintiff along with the first appellant/first defendant in a stamp paper on 25.05.1990. The jewels and other Sridhana properties and also the documents relating to the suit property were alleged to have been handed over to the first appellant/first defendant in the presence of Panchayatdhars and the Inspector of Police on 29.05.1990, whereas the acknowledgment of the same, namely handing over the jewels and sridhana properties and also the documents relating to the suit property, was stated to have been made on 25.05.1990 itself i.e., 4 days prior to the actual date of handing over. The same will indicate the improbability of the contention raised by the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition) Act, 1988, the respondent/plaintiff cannot maintain a claim on the basis of his contention that he is the real owner having purchased it with his own funds. 18. In this regard, it is the contention raised on behalf of the respondent/plaintiff that a purchase made by a person in the name of his wife or unmarried daughter is excluded from the purview of prohibited benami transaction under Section 3 of the Benami Transaction (Prohibition) Act, 1988 and that hence the bar under Section 4 of the said Act does not get attracted to the claim made by the respondent/plaintiff. It is the further contention made on behalf of the respondent/plaintiff that by the exemption provided under sub clause (2) of Section 3 of the Benami Transaction (Prohibition) Act, 1988, all purchases made by a person in the name of his wife or unmarried daughter shall not be benami transactions, as the presumption contemplated therein gets attracted; that the prohibition contained in Section 4 is made applicable only in respect of the properties held benami and that since the suit property cannot be construed to be one held by the first appellant/first defendant as benami, the bar provided under Section 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sation by virtue of sections 3(3) and 5 of the Benami Transactions Prohibition Act, 1988, shall have the competence to rebut the presumption. If a person purchases a property with his own funds in the name of his wife or in the name of his unmarried daughter, the transaction will be protected and the person in whose name the purchase is made, shall stand protected unless it is established that it has not been for the benefit of the wife or the daughter, as the case may be, and that it is actually a purchase made by the husband or the father, as the case may be, for his own benefit. Then, he can be punished under section 3(3) and the property can be confiscated (acquired without compensation) under section 5 of the Benami Transactions (Prohibition) Act, 1988. Simply because section 4 of the said Act attaches a disability on a person claiming to be the real owner from claiming the property or making a defence on the said basis against the person in whose name the property has been purchased, the State does not lose its power of punishing the person entering into the benami transaction and acquire the property under section 5 of the said Act. 20. At the outset, the above said cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r interpretation of the said clause is adopted it shall have the following effects: (i) the purchase made by a person in the name of his wife or unmarried daughter shall be presumed, unless otherwise rebutted, to be a purchase made for the benefit of the wife or unmarried daughter, as the case may be, thereby making the wife or unmarried daughter in whose name the property purchased to be the real owners with the consequence that the property thus purchased shall not be construed to be a property held benami by such wife or unmarried daughter for the husband or the father, as the case may be. The resultant position shall be that the wife or the daughter, as the case may be, shall be the absolute owner and the husband cannot claim title as against the wife or the unmarried daughter, as the case may be. (ii) In case of rebuttal of the presumption contemplated under sub-section (2) of Section 3, the transaction will become a benami transaction prohibited under sub-section (1) of Section 3 inviting the penal consequence contemplated under sub-section (3) of Section 3 and also the civil consequences of the property becoming liable to be acquired by the Government without paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holds the filed, we are bound to follow the interpretation given by the Supreme Court. Therefore, the above said contention of the learned counsel for the appellants/surviving defendants cannot be sustained, as the same is contrary to the law declared by the Apex Court by way of interpretation of Sections 3 and 4 of the Benami Transaction (Prohibition) Act, 1988. 24. Even though this court holds that on the legal issue regarding the interpretation of sections 3 and 4 of the Benami Transaction (Prohibition) Act, 1988, the submissions made on behalf of the appellants/surviving defendants is bound to be discountenanced, the other contention made on behalf of the appellants/surviving defendants is in consonance with the observations made by the Supreme Court in the judgment of Nand Kishore Mehra's case discussed supra. According to the submissions made by the learned counsel for the appellants/surviving defendants, the respondent/plaintiff himself made a clear and categorical admission and rather an assertion that he purchased the property in the name of his wife out of pure love and affection towards her and for her benefit. In paragraph 6 of the plaint it has been averred as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the dictum laid down in Nand Kishore Mehra's case to the effect that a person to succeed in a suit for establishment of his title in respect of a property purchased by him with his own funds in the name of his wife or unmarried daughter, he should prove that the purchase was not made for the benefit of the wife or unmarried daughter, as the case may be, on the other hand, it was purchased for his own benefits. 26. In the case on hand there is no pleading and no evidence to show that the purchase made under Ex. B1 was not for the benefit of the first appellant/first defendant and on the other hand it was for the benefit of the respondent/plaintiff. On the other hand, there is a clear and categorical admission made by the respondent/plaintiff both in his pleadings and evidence that the purchase was made for the benefit of his wife and also his son in the name of his wife, namely the first appellant/first defendant. The judgment of the Supreme Court referred above makes it clear that a person, who comes with such an admission, cannot succeed in his suit or defence against the person in whose name the purchase was made. The courts below have committed an error in holding tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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