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TMI Blog2003 (3) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... ale deed dated 21.04.1983. After obtaining permission from the Corporation of Madras in the year 1985, she put up a construction on the said vacant land in the year 1986. The property is assessed in her name and she is paying the property tax. She is also an income tax and wealth tax assessee. After the construction of the building, both the plaintiff and the defendant lived together in the said house. Due to misunderstanding that arose between them, the defendant started ill-treating the plaintiff. The defendant, in fact was cruel and indulged in several acts of cruelty. Since the life was miserable, the plaintiff had to leave the house fearing for her life on 14.06.1987. Since then, the plaintiff is living separately. The defendant is squatting over the property besides enjoying the luxury articles left by the plaintiff in the house viz., sofa sets costly furniture, ward robes etc. 4. The plaintiff further alleged that the defendant is also letting out the house for the purpose of film shootings and is collecting the rent for the same. The plaintiff therefore issued a notice on 01.03.1993 to the defendant, demanding the vacant possession of the land and building. Nevertheless, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts leading to filing of C.S. No. 485 of 1997 are as follows: The suit in C.S. No. 485 of 1997 was filed by George Thomas, who is the defendant in C.S. No. 866 of 1994, seeking for a judgment and decree, declaring him the absolute owner of the property and consequently passing an order of injunction restraining the first defendant, who is the plaintiff in C.S. No. 866 of 1994 from interfering with the plaintiff's possession and enjoyment of the suit property or encumbering the same in any manner either by sale or mortgage and restraining the second defendant from bringing out the suit property to sale for the income tax arrears of the first defendant. The averments in the plaint are more or less the same made in the written statement filed by George Thomas in the suit filed by Smt. Srividya. 7. Mr. George Thomas also filed another suit in C.S. No. 1505 of 1995 for a judgment and decree to set aside the order dated 09.11.1994 made in T.R.34/89-90 passed by the Tax Recovery Officer IV(1), Madras is illegal and null and void and for a consequential order of permanent injunction restraining the Tax Recovery Officer from proceeding against the suit property. The suit came to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 his brother Samson Thomas. The father of the defendant was examined by the Commissioner as C.W.1. Exs.A-1 to A-36 were marked on behalf of the plaintiff and Exs.B-1 to B-70 were marked on behalf of the defendant. 11. On considering the evidence, oral and documentary, learned Judge negatived the contention of the defendant and did not find that the suit property was purchased and the construction was made from the funds of the defendant. Learned Judge also found that the plaintiff is entitled to the suit property and she is also entitled for damages from the defendant for use and occupation of the premises at the rate of Rs.10,940/- per month for the period of three years prior to the suit and also in future, and that the plaintiff is not entitled to recovery of furniture. Learned Judge has negatived the claim of the defendant that the property was purchased in benami in the name of the plaintiff. The learned Judge also held that the order of Tax Recovery Officer dated 09.11.1994, rejecting the claim petition filed by the defendant was in accordance with law and hence, the Income Tax Department is entitled to proceed against the property for the arrears due and payable by the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intiff and the defendant as well the various documents marked. 14. Mr. G. Subramanian, learned Senior Counsel for the plaintiff, on the other hand, would contend that the suit is valued correctly on the basis of the annual rental value of the building and the Court fee also has been correctly paid. Learned Senior Counsel would further submit that merely because the suit is undervalued, the same cannot be dismissed on that ground alone as the Courts are empowered to decree the suit with a direction to the plaintiff to deposit the deficit court fee for the entitlement of the fruits of the decree. 15. Insofar as the submissions of the learned Senior Counsel for the defendant on merits, he submitted that when admittedly, the suit property is in the name of the plaintiff and the same has been assessed to property tax in her name, and the defendant plead the ground of benami , the burden to prove the benami transaction is on the defendant. He would also submit that the question of benami transaction does not arise in a transaction when the relationship of the parties is taken into consideration more particularly, between the husband and wife. Learned Senior Counsel would further s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals? (3) Whether the plea of benami as pleaded by the defendant is established? (4) Whether the plaintiff is entitled to damages from the defendant for use and occupation of the premises and furniture like sofa etc? (5) To what relief both the plaintiff and the defendants are entitled to? 20. Point No. 1: The first contention of Mr. G. Vasantha Pai, learned Senior Counsel appearing for the defendant is that the suit is under valued. The valuation has been made on the basis of annual rental value multiplied by 20 times and the Court fee has been paid thereon. The valuation ought to have been made under Section 30 of the Tamil Nadu Court Fees and Suits valuation Act, 1955 and consequently, the court fee should have been paid on the basis of the market value of the property. In this context, learned Senior Counsel would draw our attention to the observation of this Court made in the judgment reported in D. PATTAMMAL ..VS.. K. KALYANASUNDARAM 1988 (2) L.W. 161 defining the term Market value . [2 21. Section 30 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 reads as under:- Suits for possession not otherwise provided for:- In a suit for possession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction of the High Court on the question whether the plaintiff has paid adequate court fee on his plaint. Whether proper court fee is paid on a plaint is primarily a question between the plaintiff and the State. How by an order relating to the adequacy of the court fee paid by the plaintiff, the defendant may feel aggrieved, it is difficult to appreciate. Again, the jurisdiction in revision exercised by the High Court under Section 115 of the Code of Civil Procedure is strictly conditioned by cls.(a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the Subordinate Court or assumption of jurisdiction which the court does not possess or on the ground that the Court has acted illegally or with material irregularity in the exercise of its jurisdiction. The defendant who may believe and even honestly that proper court fee has not been paid by the plaintiff has still no right to move the superior courts by appeal or in revision against the order adjudging payment of court fee payable on the plaint. But, this section only enables the defendant to raise a contention as to the proper court fee payable on a plaint and to assist the Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be called upon to pay the deficit court fee, as it is the obligation of the plaintiff to take care that the valuation of the suit is as per the provisions of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. In this case, from the materials we find that in a suit for recovery of possession, the proper court fee ought to have been paid is only under Section 30 of the Tamil Nadu Court Fees and Suits Valuation Act and such court fee shall be only on the basis of the market value of the property. The direction for payment of the court fee is made by the Courts only to prevent a plaintiff to deliberately undervalue the suit. In fact, the Apex Court in the judgment in SMT.TARA DEVI v. THAKUR RADHAKRISHNA MAHARAJ MANU/SC/0054/1987 : while considering the conduct of the plaintiff in valuing the relief and paying deficit court fee has held as follows:- The plaintiff however, has not been given the absolute right or option to place any valuation whatever on such relief and where the plaintiff manifestly and deliberately underestimates the relief, the court is entitled to examine the correctness of the valuation given by the plaintiff and to revise the same, if it is patently a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or irrelevant, and may order the production of any document or thing; and neither the parties nor their agent shall be entitled to make any objection to any such question or order, nor without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question. 28. Of course, Order XVIII Rule 17 of C.P.C empowers the Court to recall any witness who has been examined and may put questions to him as the Court thinks fit. Such witnesses are amenable for cross-examination with the leave of the Court as contemplated under Section 165 of the Evidence Act. Those provisions relate to the suo motu power of the Court in either recalling the witnesses or directing the production of any document or the thing and further empowering the parties to cross-examine any witness so recalled with the leave of the Court. However, in the case on hand, an application for recalling of witnesses was filed under Order XIV Rule 8 of the Original Side Rules read with Order XVIII Rule 3 of C.P.C and the same was allowed by the Court. The provisions of Order XVIII Rule 17 and Section 165 of the Evidence Act are not applicable to the facts of the present case and consequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nesses and allowed the learned trial Judge to rely upon those evidence for the disposal of the suit. Our attention is also not drawn as to whether the defendant has ever challenged the order dated 27.11.1997, permitting the plaintiff to lead evidence after the closure of the evidence of the defendant. In the absence of such challenge, it must be held that the defendant accepted for re-examination of the plaintiff more particularly, by making an endorsement of 'no objection' and has taken such a plea only as a new invented route to prosecute his claim. Such a new invented route is not available in view of the above conduct of the defendant, which we discussed above in detail. Hence, the contention of Mr. G. Vasantha Pai, learned Senior Counsel that the evidence of P.Ws.1, 4 to 7 and the exhibits marked after the closure of the evidence of the defendant cannot be relied upon by the plaintiff is not acceptable. Accordingly, we reject the said contention. 30. Point No. 3: Coming to the submission of the Mr. Vasantha Pai, learned Senior Counsel as to the benami transaction , it is to be seen that the consideration as to the plea of benami transaction is not new to the Courts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is benami is on the plaintiff and it must be strictly made out. The decision of the Court cannot rest on mere suspicion, but must rest on legal grounds and legal testimony. In the absence of evidence, the apparent title must prevail. It is also well established that in a case where it is asserted that an assignment in the name of one person is in reality for the benefit of another, the real test is the source when the consideration came and that when it is not possible to obtain evidence which conclusively establishes or rebuts the allegation, the case must be dealt with on reasonable probabilities and legal inference arising from proved or admitted facts. 32. A Constitution Bench of the Apex Court in the judgment in SURASAIBALINI Vs. PHANINDRA MOHAN MANU/SC/0250/1964 : reiterated the proposition of law as to the onus to establish the benami transaction shall lie only on the person who pleads the same. In the above decision, the Apex Court has held as follows:- Learned counsel for the respondent submitted that the English decision just now referred to as well as 1959 Ch 410, proceeded upon the peculiarity of the English law in which there is a presumption of an advancement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmulae or acid test, uniformly applicable in all situations, can be laid down. Therefore, the Apex Court went on to add that in weighing the probabilities and for gathering the relevant indicia, the Courts are usually guided by the circumstances namely, (i) Sources from which the purchase money came; (ii) Nature of possession of the property after the purchase; (iii) Motive, if any for giving transaction a benami colour; (iv) Position of the parties and their relationships, if any, between the claimant and the alleged benamidar; (v) Custody of title deeds after the sale; and (vi) The conduct of parties concerned in dealing with the property after the sale. 34. A Division Bench of this Court in the judgment in PONNUSWAMY NADAR Vs. NARAYANAN NADAR 1976 I MLJ 1 also had an occasion to consider the same question. In the said judgment, the Division Bench held as follows:- In order to determine the benami nature of a transaction, reliance must not only be placed on the surrounding circumstances and the position of the parties and their relations to one another, but also on the motive which governs their actions and subsequent conduct. In fact, the absence of moti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tedly, the total cost of the site and construction was Rs.12,00,000/-. 37. On the contrary, it is the admitted case of the defendant himself that the plaintiff had contributed a sum of Rs.70,000/- for purchase of vacant site and a further sum of Rs. 1,40,000/- towards construction of house. When the onus is on the defendant to establish that he had also contributed funds both for purchase of vacant site and for construction of house, from the facts culled out from the evidence, we are unable to lay our hands on any of the acceptable evidence to satisfy ourselves that any amount was contributed by the defendant both for purchase of vacant site and for construction of house. The defendant has miserably failed in discharging the said onus. Hence, in so far as the source of purchase money relating to the transaction is concerned, we hold that the onus, which heavily lies on the defendant, is not discharged and consequently his plea that he contributed the sale consideration and construction expenses are liable to be rejected. 38. It is also the specific case of the plaintiff and defendant in their evidence that both of them lived together till July 1987 in the house in question a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... THERS Vs. ELUMALAI 89 LW 571 and the learned single Judge has held as follows:- It has been repeatedly held by this Court that when a husband purchased the property in the name of his wife by paying his own money, from that alone, no inference can be drawn that the wife was only the benamidar, and having regard to the nature of the relationship between the parties, and the normal tendency of the husband to benefit the wife either by payment of money or by purchase of property in her name, the allegation of benami can be established only by proving the motive for such benami purchase. 40. The motive, as alleged by the defendant, is to avoid Income Tax. Such reason cannot be considered as an acceptable one as the motive pleaded is to avoid the legal liability which would not amount to a discharge of the burden of proof of benami. Hence, in our considered view, the motive as pleaded by the defendant cannot be accepted and in the absence of discharging the onus of proof of motive, we hold that the plaintiff is not a benami . 41. Coming to the relationship of the parties prior to July 1987 and since July 1987, nowhere it is stated in the evidence that the transaction was ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the house personally and therefore, the amount lying in her bank accounts were drawn by the defendant and the construction was made from out of her own funds. Only after misunderstanding arose during July 1987, the plaintiff had to leave the house fearing her life. This fact has not been controverted by the defendant. When once we find that the plaintiff is the owner of the house and she was compelled or in fact was forced to leave the house, law requires that necessary directions should be issued to the defendant to hand over the possession of the house as the plaintiff is entitled to the same. Accordingly, the suit in C.S. No. 866 of 1994 is decreed in favour of the plaintiff with a direction to the plaintiff to value the relief under Section 30 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955, and pay the deficit court fee within a period of six weeks from today. Insofar as the claim of damages, no arguments were advanced by the learned counsel for defendant challenging the decree made by the learned Judge. Hence, we are not called upon to adjudicate the said claim. Accordingly, we confirm the decree and judgment of the learned Judge holding that the plaintiff is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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