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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 ..... N. Chinniah, who figured as the third defendant in the original suit is the father of Shanthi @ Shanthi Sathya, the first appellant herein/first defendant. They had a son by name Sridhar. He was born on 22.11.1979. Due to the problem between the husband and wife, Masanam, the respondent herein/plaintiff filed a petition for divorce in the Family Court, Chennai as O.P. No. 1017 of 1992 under Section 30(1)(i) of the Hindu Marriage Act, 1955 alleging adultery as the ground for divorce. The petition was not contested and it resulted in a decree granting divorce in favour of Masanam, the respondent herein/plaintiff as he had prayed for in the said O.P. The said decree came to be passed on 01.02.1995. The suit property, namely a house site bearing Plot No. 57, Konnur Village comprised in Rs. No. 183 measuring 40 feet x 60 feet situated within the Registration District of North Madras and Sub-Registration District of Ambattur (presently Purasawalkam) came to be purchased on 30.12.1985 and registered as document No. 888/1986 in the office of the Sub-Registrar, Ambattur. The original sale deed has been produced by the appellants as Ex. B1, whereas a certified copy of the same has been prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the suit contending that he had purchased the suit property from the first appellant/first defendant for a sale consideration of Rs. 49,500/- under a sale deed dated 19.01.1994 registered as Document No. 244 of 1995 in the office of Sub-Registrar, Ambattur; that thus having become the absolute owner of the suit property, got possession of the same and was enjoying the same and that no one including the respondent herein/plaintiff did have any interest of any nature whatsoever in respect of the suit property. He had also contended that after his purchase under the sale deed dated 19.01.1994, he completed the construction of a house and that after such completion of construction of the house by the second appellant/second defendant, the respondent/plaintiff approached the Court with the suit with false averments and ulterior motive. 3. The learned trial Judge, viz., Second Assistant Judge, City Civil Court, Chennai, after trial, decreed the suit in part granting the reliefs of declaration, recovery of possession and a decree setting aside the sale transaction dated 19.01.1994 between the first appellant/first defendant and the appellants 2 and 3/defendants 2 and 4 holding the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd were also perused. This Court carefully considered the submissions made on both sides and the materials available on record. 6. The respondent herein/plaintiff filed the original suit for a declaration that he was the absolute owner of the suit property, for recovery of possession of the suit property, to set aside the sale deed dated 19.01.1994 executed by the first appellant/first defendant in favour of appellants 2 and 3/defendants 2 and 4 holding the sale deed to be null and void and for a permanent injunction restraining the appellants herein/defendants 1, 2 and 4 from putting up further construction in the suit property. Except the prayer for injunction, all other prayers were made on the basis of the contention of the respondent that it was he who purchased the property as a vacant site with his own funds, but in the name of his wife namely, the first appellant/first defendant and that he was the real owner of the suit property. In order to prove his contention, he examined two witnesses as P.Ws. 1 and 2 and produced 21 documents as Exs. A1 to A21. On the side of the appellants herein/contesting defendants, two witnesses were examined as D.Ws. 1 and 2 and 25 documents we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiff proved his contention that he purchased the suit property with his own funds in the name of his wife. The said documents were produced in order to show that there was a divorce proceeding pending before the family Court instituted by the respondent/plaintiff for divorce on the ground of adultery. The above said documents were produced simply for the purpose of showing the conduct and character of the first appellant/first defendant and hence, the same are quite irrelevant for taking a decision on the issue as to whether the purchase under Ex. B1 sale deed was made by the respondent herein/plaintiff with his own funds in the name of his wife, namely the first appellant/first defendant. Hence, it is quite obvious that the appellants have wrongly formulated the first question as one of the substantial questions of law on an erroneous assumption that the Courts below relied on Exs.A13, A15, A17 and A18 for making such a decision. 8. However, it cannot be said that Ex. A14 is irrelevant for the purpose of making a decision as to whether the first respondent/first defendant could have got her own funds for the purchase made under Ex. B1 sale deed. Ex. A14 is none other than th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the fund for the purchase under Ex. B1 sale deed was entirely provided by him and that nothing was contributed by his wife, namely the first appellant/first defendant towards the sale consideration for the purchase under Ex. B1 sale deed since she had no other property capable of yielding income and she had no independent source of income. In this regard, the respondent/plaintiff, besides examining himself as P.W. 1, examined a co-worker as P.W. 2. Both of them were categorical in their assertion that the entire sale consideration was provided by the respondent/plaintiff. In addition, the respondent/plaintiff also produced Exs. A4, A5, A14, A20 and A21. Ex. A4 contains two official communications issued to the respondent/plaintiff bearing dated 07.08.1986. By the first one, the department informed the respondent/plaintiff that his application dated 25.04.1985 seeking permission to purchase a house site in the name of his wife was registered and directing him to submit the necessary particulars after the purchase would be over. After the purchase of the property under Ex. B1, the same was intimated to the office by his letter dated 23.06.1986. On receipt of the said communication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly Court consequent to the establishment of a Family Court at Coimbatore. In the said petition, while claiming maintenance from the respondent/plaintiff, she had made an averment that she was not having any property or income. The relevant portion in vernacular is culled out and reproduced: The said admission was relied on by the respondent/plaintiff as a corroborating piece of evidence to prove his contention that the entire sale consideration for the purchase made under Ex. B1 sale deed was provided by him alone. 12. As against such a clear evidence adduced on the side of the respondent/plaintiff, the first appellant/first defendant did not figure as a witness to depose that she had the necessary funds and with her own funds the suit house site was purchased by her and that the funds were not provided by the respondent/plaintiff as contended by him. The second respondent/second defendant alone figured as D.W. 1. He did not speak about the financial position of the first appellant/first defendant at the time of purchase of the suit house site under Ex. B1. There is nothing in his evidence to show that the respondent/plaintiff did not provide the fund for the purchase of the suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent/plaintiff approached the trial Court with a categorical plea that the suit property was purchased by him with his own funds in the name of his wife (first appellant/first defendant); that the first appellant/first defendant while leaving the matrimonial home took along with her sale deed under which the suit property was purchased; that when he issued a legal notice calling upon her and her father (the deceased third defendant Chinniah) to hand over the suit property and the documents relating to the suit property to the respondent/plaintiff, the first appellant/first defendant clandestinely executed sale deed in favour of appellants 2 and 3/defendants 2 and 4 and that the same was the reason why he had to file the suit for the reliefs indicated supra. Only after the filing of the suit, the first appellant/first defendant chose to raise a contention that based on the complaint lodged by her in Ayakudi Police Station, the respondent herein/plaintiff returned the documents relating to the suit property and the jewels of the first appellant/first defendant along with other Sridhana properties on 29.05.1990 in the presence of Panchayatdhars and the Inspector of Police, Ayakudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fendants. 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 the written statement alone, the Court cannot hold that the said averment stands substantiated by the first appellant/first defendant. As the above said contention of the first appellant/first defendant has not been substantiated either by oral or documentary evidence, there shall be no question of holding the respondent/plaintiff to be estopped from denying the title of the first appellant/first defendant in respect of the suit property on the basis of the alleged acknowledgment of title. Hence, the fourth substantial question of law is answered accordingly, holding that the appellants have not proved that the respondent/plaintiff had acknowledged the title of the first appellant/first defendant and hence he was estopped from denying her title to the suit property. The Courts below have not committed any error in not rendering a finding that the respondent herein/plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequence of the property becoming liable to be acquired under section 5, section 3(2)(a) has been provided. It does not say that though it is a benami transaction, it will not attract the abovesaid penal consequence or the consequence contemplated under section 5. On the other hand, it implies a presumption that it shall not be a benami transaction if the purchase is made with the funds provided by the husband or the father of the unmarried daughter as the case may be. In other words, such act of making available the funds can be treated to be a gift in favour of wife or unmarried daughter. That is the reason why the Parliament, in its wisdom, has chosen to state that such a purchase made by a person in the name of the wife or unmarried daughter shall not be deemed to be a benami transaction and it shall be deemed to have been purchased for the benefit of the wife or the daughter as the case may be. In other words, it is implied that the purchaser is none other than the wife or the daughter as the case may be and that the husband or the father providing fund cannot claim to be the real purchaser or owner of the property. ii) In Section 4 itself, certain exemptions are provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hment; that Section 5 makes the properties held benami liable for acquisition without payment of compensation; that however sub-section 2 of section 3 permits a person to entered into a benami transaction of purchase of property in the name of his wife or unmarried daughter by declaring that the prohibition contained against a person in entering into a benami transaction in sub-section (1) of Section (3) does not apply to him and that in such cases, the question of punishing the person under Section 3(3) or acquiring the property under Section 5 of the Benami Transaction (Prohibition) Act, 1988 can never arise, since, according to the perception of the Supreme Court, the exception granted under Section 3(2) would otherwise become redundant. It was further observed in the said judgment by the Supreme Court that the property concerned in Sub section (2) of section 3 in relation to non-applicability of section 3(3) and section 5 shall equally hold good for non-applicability of the provisions of sub-sections 1 and 2 of section 4 in the matter of filing a suit or taking up a defence. The reason assigned by the Supreme Court is that it shall be difficult to hold a person permitted to pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vassed by the learned counsel for the appellants/surviving defendants is totally contrary to what has been discussed by the Supreme Court in the above cited case. Regarding the right of the person, who purchased the property in the name of the wife or unmarried daughter, as the case may be, to claim that he is the real owner of the property and seek recovery of possession, the Supreme Court made the following observations: "But, it has to be made clear that when a suit is filed or defence is taken in respect of such benami transaction involving purchase of property by any person in the name of his wife or unmarried daughter, he cannot succeed in such suit on defence unless he proves that the property although purchased in the name of his wife or unmarried daughter, the same had not been purchased for the benefit of either the wife or the unmarried daughter, as the case may be, because of the statutory presumption contained in sub-section (2) of Section 3 that unless a contrary is proved that the purchase of property by the person in the name of his wife or his unmarried daughter, as the case may be, was for her benefit. Therefore, our answer to the question under co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame was purchased for her benefit. In the light of the above said admission and also the presumption contemplated under Section 3(2) of the Benami Transaction (Prohibition) Act, 1988 the purchase made under Ex. B1-Sale deed has to be construed as a purchase made for the benefit of the first appellant/first defendant. If we apply the ratio decidendi of Nand Kishore Mehra's case to a purchase made by the husband in the name of his wife for the benefit of his wife, then he cannot succeed. We have to come to a conclusion that he cannot succeed in his suit or plea of defence against this wife in whose name the purchase has been made. In the above said case, the Supreme court has declared that for a person to succeed in a suit or defence on the basis of the benami transaction in the name of his wife or unmarried daughter, he should plead and prove that the purchase was not made for the benefit of the wife or the unmarried daughter as the case may be. 25. In the case on hand, it is clearly admitted that the purchase was made for the benefit of the first appellant/first defendant. If we apply the ratio of Nand Kishore Mehra's case to the case on hand, the necessary conclusion that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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