9911796707
Advanced Search 
TMI Blog2023 (2) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... ll to do and owned vast extents of agricultural lands besides carrying on the business of the money lending. In the year 1992, he had purchased item Nos.1 and 2 of the suit schedule properties from his own income and had constructed building from his agricultural income and his own savings. He had paid property tax and electricity consumption charges for those properties and for all practical purposes, he was maintaining the properties as its owner. Thereafter, in the year 1994, he purchased Item Nos. 3 to 6 of the suit schedule properties again from his own savings. A male child was born to the respondent and the appellant on 02.02.2000. The appellant returned after delivery of the child to the matrimonial home in May 2000. Differences arose between the appellant and the respondent thereafter. The appellant prevented the respondent from attending his mother's funeral. She did not breast-feed the child. The respondent came to know that even prior to the marriage, she had association with a third person, who was residing opposite to her parents' house at Tuticorin. While so, on 05.09.2003, the respondent found that the appellant and the child were missing from her home. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;ble Supreme Court reported in (1995)4 SCC 572 (Nand Kishore Mehra vs. Sushila Mehra) and (2020)17 SCC 496 (Mangathai Ammal vs. Rajeswari) in support of the said submission. (c) The learned Senior Counsel further submitted that the reasons given by the respondent for purchasing the properties in the name of the appellant i.e., the Astrologer had advised the respondent not to buy any property in his name and further that he bought the property to avoid wealth tax, cannot be accepted. Firstly, he had bought another property in the year 1992 in his name by sale deed dated 05.02.1992, which falsifies his case of Astrologer's advice. Secondly, avoidance of the wealth tax should not be accepted by this Court, as the said motive for purchase of the property in the name of his wife, is illegal. He relied upon the Judgment of this Court reported in AIR 2003 Madras 290 (George Thomas vs. Srividya) for the said purpose. (d) The learned Senior Counsel further submitted that there is a presumption in favour of the transaction being real and the burden is on the person who claims to be benami to prove the contrary. The respondent ought to have proved that his intention was to purchase t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not produce any document to suggest that the property was purchased out of the funds given by her father. (c). The respondent had filed Income Tax Returns which were marked as Ex.P.13, which would establish the fact that the respondent had sufficient means to purchase the properties in question. Further, the respondent had examined the vendors of the property and their evidence also supported the case of the respondent. The respondent managed the property and the title deeds relating to the properties and other documents evidencing payment of the property tax, water charges and electricity charges, are in possession of the respondent. He had bought those properties since the name of the appellant "Felshia" means luck. Further, he would manage the wealth tax if the purchase was made in different names. (d). As regards the additional documents filed by the appellant, namely, the sale deed dated 05.02.1992 purchased by the respondent, the respondent has no valid objection for marking of the same. He would further contend that this property was purchased contrary to the advice of the Astrologer. That would not therefore render the reasons given by him for purchasing the suit sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her or not the appellate court requires the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature............" 10. The points that arise for consideration in the above appeal, are: (1) Whether the respondent had established that the properties were purchased in the name of the appellant from his funds? (2) If the properties were purchased from the funds of the respondent, whether the respondent had rebutted the statutory presumption under Section 3(2) of the Benami Transactions (Prohibition) Act, 1988 that the purchase of properties in the name of the wife is presumed to be for her beneficial interest? Point No.1: 11. The admitted facts are that the respondent and the appellant got married in the year 1990. The suit schedule properties were purchased in the name of the appellant. A child was born to the appellant and the respondent in the year 2000. The appellant and the respondent are living separately since 2003. The son was brought up by the respondent. The documents of title relating to the properties are in possession of the respondent and he is managing all the properties. 12(a). The first factual controversy is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e stated by both the appellant and her father. Further, the appellant's father has three daughters. There is nothing to suggest as to why he chose only the appellant to purchase the properties in her favour. Therefore, we are of the view that the respondent had established that he had purchased the property from his funds in her name. Hence, for the above said reasons, we hold Point No.1 in favour of the respondent. Point No.2: 13. It is the case of the appellant that merely because the respondent was managing properties and paying taxes, it cannot be inferred that the properties were not purchased for the beneficial interest of the appellant. We are in agreement with the said proposition. It is the matter of common knowledge that in an Indian family, the husband normally looks after the property which is in the name of the wife. This alone cannot determine that the husband bought the property for his interest benami in the name of his wife. The Hon'ble Apex Court in (2015)15 SCC 556 (cited supra) and AIR 1965 SCC 271 (cited supra) had held that merely because the husband is managing the property, it cannot be held that the properties were purchased for his benefit. 14.L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 SCC 496 (cited supra) is relied upon by the learned Senior Counsel for the appellant. "12. It is required to be noted that the benami transaction came to be amended in the year 2016. As per Section 3 of the Benami Transaction (Prohibition) Act 1988, there was a presumption that the transaction made in the name of the wife and children is for their benefit. By Benami Amendment Act, 2016, Section 3 (2) of the Benami Transaction Act, 1988 the statutory presumption, which was rebuttable, has been omitted. It is the case on behalf of the respondents that therefore in view of omission of Section 3(2) of the Benami Transaction Act, the plea of statutory transaction that the purchase made in the name of wife or children is for their benefit would not be available in the present case. Aforesaid cannot be accepted. As held by this Court in the case of Binapani Paul (Supra) the Benami Transaction (Prohibition) Act would not be applicable retrospectively........." 17. Thus, we have to examine whether the respondent has proved that the property was purchased by him for his interest in the name of the appellant and not for the beneficial interest of the appellant. It is well established tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
