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TMI Blog2023 (6) TMI 1264X X X X Extracts X X X X X X X X Extracts X X X X ..... ving in Neyveli. The plaintiff got a job in a Steel Company in Saudi Arabia, and left for Saudi Arabia, the 1st defendant [wife] continued to live in Neyveli children and she was entrusted with the funds of the plaintiff - During his visit to India between 1983 and 1994, he brought various articles of value, jewellery and cash. The 1st defendant [wife] had no income of her own and was only managing and administering the affairs of the plaintiff prudently and operating the accounts and thus was acting in effect as the agent in a fiduciary capacity. While managing the affairs of the plaintiff, she purchased items 1 to 4 properties on behalf of the plaintiff utilizing the funds of the plaintiff. HELD THAT:- This Court is of the considered view that the 1st defendant/wife has contributed equally, though not directly but indirectly by way of looking after the home and taking care of the family for more than a decade and managing the household chores, thereby releasing the husband for gainful employment and made his stay comfortable in abroad and also to reduce the expenses and save the money for future benefit of the family including for purchasing of the assets. Though the proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se over the Item Nos.1 and 2 of the schedule mentioned properties and to that extent the judgment and decree of the First Appellate Court are set aside. Benami transaction - As benami transaction would not attract in respect of the properties purchased for the benefit of the husband and the 1st defendant is only holding the property in trust for the benefit of her husband. Though they have taken a stand that the Benami Transactions would not be applicable, this Court already arrived at the conclusion that the suit properties have been purchased by the joint contribution made by the plaintiff and the 1st defendant equally, Section 3, 4 or 5 of the Benami Transaction Act would not attract in the present case. This Court is of the view that Item Nos. 1, 2 and 4 of the schedule mentioned properties were purchased from and out of the joint contribution made by both the plaintiff and the 1st defendant and they are entitled to equal shares over the item Nos.1, 2 and 4 of the schedule mentioned properties. Accordingly, the Substantial Questions of Law Nos.2, 4, 5, 6 and 7 are answered. Property of a female Hindu to be her absolute property - 3rd item of the suit properties was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Appellants in SA and R3 R4 in Cross-Obj. : Mr.S.Parthasarathy Senior Counsel for Mr.K.S.Navin Balaji For the R1in SA and Cross-Objector : Ms.V.Anusha For the R2 in SA and R1 in Cross-Obj : Mr.N.Nithianandam For the R3 in SA and R2 in Cross-Obj : Mr.K.Chandrasekaran For the R4 in SA and R5 in Cross-Obj : Ms.S.R.Sumathy For the Amicus Curiae : M/s. T.Jayalakshmi COMMON JUDGMENT Second Appeal has been filed by the against the judgment and decree dated 28.09.2015 made in A.S.No.1 of 2007 on the file of the II Additional District and Sessions Court, Chidambaram in modifying the judgment and decree dated 15.09.2005 passed in O.S.No.28 of 2002 on the file of the Sub Court, Chidambaram. Cross Objection filed under Order XLI Rule 22 of C.P.C., praying to set aside the judgment and decree dated 28.09.2015 made in A.S.No.1 of 2007 on the file of the II Additional District and Sessions Court, Chidambaram in so far as it relates to partly reversing the judgment and decree made in O.S.No.28 of 2002 on the file of the Subordinate Judge, Chidambaram. 2. The appellants in Second Appeal are the legal heirs of the plaintiff and 1st respondent/defen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd other costly articles which were entrusted to her by the plaintiff, which were not gifted to her. The 1st defendant is an educated woman but she is crafty and wily. Finding that she can no longer dissipate the funds of the plaintiff, she began to give out with the assistance of the 2nd defendant to alienate the suit properties. Hence, the plaintiff filed the present suit in O.S.No.479 of 1995 before the District Munsif Court at Chidambaram for permanent injunction against the defendants herein. 3.2. The plaintiff is the owner of the jewels and other valuables in the locker of the 3rd defendant bank. In the suit, the 1st defendant pleaded that the suit properties belong to her and she purchased them with her funds by selling her jewels and other assets, which is false. The 1st defendant did not have any funds, jewels or assets to acquire the suit properties. The marriage of their daughter and one of the sons took place on 09.10.1987 and 20.01.1995 respectively. The 1st defendant made a false claim that she spent for the marriage and presented jewels to the children. She had no funds to meet the expenses. She had also taken the plea that the suit for injunction is not maintaina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laintiff. That apart, she knows tailoring and used to earn money through that. The plaintiff sent money to his account from abroad only for leading the family. On 29.10.1987, the 1st defendant celebrated the marriage of her daughter and incurred expenditure of Rs. 3,00,000/- and presented 400 grams of gold. The 1st plaintiff was not intent to spend such huge amount for the marriage. But against the desire of her husband, the 1st defendant performed the marriage keeping the welfare of her daughter in mind. She presented 80 grams of gold to her grandsons. In January 1995, she performed the marriage of her son Arulprabakar. She spent Rs. 1,00,000/- and presented 80 grams of gold to the bride. The 2nd son has completed his BE course at Annamalai University. She spent Rs. 1,00,000/- for his education. The 1st defendant spent the money in a useful manner. The 1st defendant purchased a site at 16-A Viswanatha pillai lane in the name of the plaintiff and built a palatial three storeyed house. She has also constructed an outhouse. According to her, the 1st plaintiff is living in that house leading a sophisticated life. The value of that property is now more than Rs. 12,00,000/- and apart fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uit. However, he prayed only for a relief of bare injunction. He ought to have included all the reliefs to which, he is entitled to in that suit. But, he omitted to include the relief of declaration and so he cannot sue for such relief as Order 2 Rule 2 of CPC bars such claims. Therefore, the suit is liable to be dismissed on this score. As far as Section 4 of Benami Transactions (Prohibition) Act is concerned, it prohibits the plaintiff from instituting a suit on the ground that the properties were purchased by him in the name of his wife. The plaintiff may contend that this section is not applicable in view of the Section 3(2) of the said Act. But the presumption under Section 3 of that Act is not an exception to Section 4. Section 4 is the enforceable and section 3 is only general in nature. Hence, this suit is barred under Section 4 of Benami Transaction (Prohibition) Act. 4.5. Further, the plaintiff filed a revision before the Hon'ble High Court, Madras in CRP 880/2004 and the High Court has set aside the order passed in I.A.1080/2003 and directed the trial Court to try both the suits together and that Court admitted that further evidence could be recorded in O.S.143/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 4 of the suit properties was not bought for the benefit of the 1st defendant. Hence, item no. 1 and 2 belongs to the plaintiff and item no. 3 and 4 and the articles in item no. 5 of the suit properties absolutely belong to the 1st defendant. Therefore, the 1st appeal has been partly allowed and hence modified the judgement and decree passed by the trial Court. 9. Aggrieved over the said judgment and decree passed by the lower appellate Court with respect to rejection of Item Nos.3, 4 and 5 properties the appellant/plaintiff has filed the present Second Appeal before this Court and this Court admitted the Second Appeal on 05.02.2016 and framed the following substantial questions of law. 1. Whether the lower appellate court erred in law in holding that the 3rd item of the suit properties was purchased by the 1st defendant by pledging her jewels and that she is the owner of the said property on mere surmises and conjectures without properly considering and appreciating Ex.A14 and Ex. A15 letters admittedly sent by the 1st defendant to the plaintiff in proper perspective? 2. Whether the lower appellate court erred in law and misdirected itself in holding that the 4th i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their domestic chores, looking after home and family/caring for the family, taking care of the children etc, thereby releasing her husband for gainful employment would be a factor in determining the rights in acquiring the property, was considered by the courts below in proper perspective? 7. Whether Item Nos.I II of the schedule properties were purchased through the joint effort of the plaintiff/husband and 1 st defendant/wife as the same would be a factor in determining the parties right in the schedule mentioned property? 12. Mr.S.Parthasarathy, learned Senior Counsel appearing for the plaintiff would submit that the plaintiff and the 1st defendant are husband and wife. They got married in the year 1965 and they were blessed with two sons and one daughter. The plaintiff was working in Neyveli Lignite Corporation till December, 1982. During January 1983, the plaintiff got employment in Saudi Iron and Steel Company, Hadeed located in Kingdom of Saudi Arabia and he was working there till December, 1994, thereafter, he retuned to India. The plaintiff used to send all the monies to his wife what he had earned in Saudi Arabia and instructed her to buy properties in trust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his employment. 15. Further, as far as Item No. 3 of the schedule mentioned properties are concerned, there is sufficient evidence to establish that though the property was purchased out of the amount received by pledging 1st defendant's jewels, but later, the same were redeemed out of the monies received by the 1st defendant from the plaintiff. Therefore, he would contend that Item No.3 of the Schedule mentioned properties was also purchased from and out of the monies of the plaintiff in the name of the 1st defendant in trust for the benefit of the plaintiff. He would also contend that without appreciating these facts, the First Appellate Court has reversed the judgment and decree passed by the Trial Court. Hence, he prayed to set aside the judgment and decree of the First Appellate Court to an extent of declaring Item No.3 of the schedule mentioned property belongs to the 1st defendant. 16. As far as Item No.4 of the schedule mentioned properties are concerned, he would contend that though the First Appellate Court reversed the judgment of the Trial Court, it has not discussed about any material evidences, proving that the said property was purchased by the 1st defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er hand, Mrs.Anusha, learned counsel appearing for the 1st defendant would submit that the Trial Court has committed grave error while decreeing the suit in favour of the plaintiff. Against which, the 1st defendant preferred an appeal before the First Appellate Court and the Appellate Court has set aside the judgment and decree passed by the Trial Court to an extent of Item Nos.3 to 5 of the schedule mentioned properties and held that Item Nos.3 to 5 belong to the 1st defendant. Now, the Cross Appeal has been preferred against the judgment of the First Appellate Court upholding the judgment and decree passed by the Trial Court in respect of Item Nos.1 and 2 of the schedule mentioned properties. 20. Learned counsel appearing for the 1st defendant fairly agreed that the Item Nos.1 and 2 of the schedule mentioned properties were purchased from and out of the monies sent by the plaintiff. However, she would submit that the said properties were purchased in the name of the 1st defendant for her benefit since the 1st defendant sold her ancestral property to an extent of 1 acre and 4.5 cents, which was obtained from her father by way of partition and utlised the said money for the plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to that extent the 1st defendant saved the money and therefore, she had virtually got share in the monies sent by the plaintiff for the purpose of purchasing the properties. Therefore, she would contend that since the 1st defendant has equally contributed as a home maker without any remuneration but this is the way the house wife contributed and helped the husband to save the monies by virtue of her contribution to the family, so it will have value and thereby, she would certainly claim the share in the schedule properties. Since these properties were purchased out of her indirect contribution and as well as with regard to the contribution of the husband, which he was supposed to fulfill his promise. Therefore, she would contend that item Nos.1 and 2 of the schedule mentioned properties are concerned, these are absolute properties of the 1st defendant, however, both the Courts below failed to consider all these aspects. Therefore, she requested this Court to set aside the judgment and decree of the First Appellate Court to an extent of decreeing the Item Nos.1 and 2 in favour of plaintiff alone. 23. As far as Item No.3 of the scheduled mentioned property is concerned, the Firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned counsel appearing for the 2nd defendant would submit that he is only a formal party and he has nothing to contend as regards the substantial questions of law and thus, no relief could be granted in his favour. Therefore, he has denied the allegation made against him linking the 1st defendant with the 2nd defendant. Apart from that, he pointed out that no relief has been granted in his favour by the Trial Court or the First Appellate Court. 27. Learned counsel appearing for the 4th defendant would submit that the 4th defendant is the daughter of the 1st defendant and he would adopt the arguments of the learned Senior Counsel appearing for the appellant, supporting the second appeal and opposing the cross appeal. 28. Heard the learned Senior counsel appearing for the plaintiff and the learned counsel appearing for the defendants and perused the entire materials available on record. 29. Having heard the counsel on record and on appreciation of their arguments, at the out set, it would be appropriate first to deal with the Substantial Questions of law, viz., 2, 4, 5, 6 and 7 which pertain to Item Nos. 1, 2 and 4 of the suit schedule properties. Substantial Question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 1st defendant, Kamsala @ Banumathi are husband and wife and they were blessed with three children. Since the plaintiff passed away, the appellants 1 and 2 in the present appeal, are impleaded in the place of their father and the 4th respondent is their daughter who is also supporting the case of the plaintiff. After the death of the plaintiff, the children are against the 1st defendant widow mother and filed the present Second Appeal. While so, the 1st defendant mother also filed cross-objection against the judgment and decree passed by the First Appellate Court to the extent of holding that Item Nos. 1 and 2 of the scheduled mentioned properties in favour of their three children. 31. The admitted facts are that the 1st defendant obtained her share of the property by virtue of partition from her father to an extent of 2.11 acres out of which, 1 acre was sold by the plaintiff long back and it was the contention of the 1st defendant that she was requested to sell this property by her husband under the promise that he would purchase the property in her name in future. Further, out of 11 cents, 4.5 cents of land was sold in the year 1982 and she gave this money to the plaintiff fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , being a wife, had physically contributed to the family for 24 hours. However, the husband, out of his 8 hours job at abroad, had financially contributed to the family and sent the money out of his savings, from which they had purchased the property. The said savings were done because of the 24 hours efforts put by the 1st defendant/wife for the family, whereby she had made her husband to save money without contributing much towards the house maid etc., and for payment of money towards other jobs. 35. In fact, the 1st defendant being a home maker, though she did not make any direct financial contribution, she played a vital role in managing the household chores by looking after the children, cooking, cleaning and managing day-to-day affairs of the family without giving any inconvenience to the plaintiff abroad and moreover, she sacrificed her dreams and spent her entire life towards the family and children. In these circumstances, whether the 1st defendant/wife can be excluded from claiming any share over the properties, viz., Item 1, 2 and 4? 36. In generaility of marriages, the wife bears and rears children and minds the home. She thereby frees her husband for his economic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es for 24 hours to the family by maintaining the children, preparing food, taking them to school, looking after their needs and taking care of their health, household chores etc., which cannot be weighed lower than earning money by the plaintiff/husband in abroad. Therefore, the common intention of the couple, viz., the plaintiff/husband and 1st defendant/wife was to co-ordinate each other and to strive hard for the benefit of family and even if any properties purchased in the name of husband or wife alone, ultimately, it can be held that both are entitled to equal share as far as in the present facts of the case keeping in mind the earning of the husband since the same were purchased by both of their contributions, one by earning money and another by serving/looking after the family as stated above. Without contribution of the 1st defendant/wife to the family, the plaintiff would have engaged maid servants, that also for three shifts at 8 hours each per day and might have spent huge money from his earnings for maid servants in which case, the plaintiff would have certainly saved less money, which would not have been sufficient to purchase the properties or not saved anything. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in section 100. In the present case, by virtue of documentary evidence, viz Exs. A1 to A11 this Court can very well determine the issue which has not been determined by the Courts below as regards the contribution directly or indirectly made by the 1st defendant/wife facilitating her husband/plaintiff for acquistion of assets, viz, Item No. 1, 2 and 4. 45. In the light above discussion, this Court is of the considered view that the 1st defendant/wife has also contributed equally, though not directly but indirectly by way of looking after the home and taking care of the family for more than a decade and managing the household chores, thereby releasing the husband for gainful employment and made his stay comfortable in abroad and also to reduce the expenses and save the money for future benefit of the family including for purchasing of the assets. 46. Though the properties purchased in the name of the 1st defendant, she alone cannot claim exclusive right over the properties merely because the title deed is in her name since the documentary evidence would establish that the 1st defendant/wife purchased the properties out of the direct financial contribution of the plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over the item No.4 of the schedule mentioned properties and to that extent the judgment and decree of the First Appellate Court is set aside. 48. A contention was also raised with regard to the Benami Transactions and both the Courts below have categorically held that the benami transaction would not attract in respect of the properties purchased for the benefit of the husband and the 1st defendant is only holding the property in trust for the benefit of her husband. Though they have taken a stand that the Benami Transactions would not be applicable, this Court already arrived at the conclusion that the suit properties have been purchased by the joint contribution made by the plaintiff and the 1st defendant equally, Section 3, 4 or 5 of the Benami Transaction Act would not attract in the present case. 49. In the light of the above discussion, this Court is of the view that Item Nos. 1, 2 and 4 of the schedule mentioned properties were purchased from and out of the joint contribution made by both the plaintiff and the 1st defendant and they are entitled to equal shares over the item Nos.1, 2 and 4 of the schedule mentioned properties. Accordingly, the Substantial Questions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jewels for the purchase of Item No.3 of the schedule mentioned properties. Therefore, I do not find any error in the judgement of the First Appellate Court in holding that the Item No.3 of the schedule mentioned properties belongs to the 1st defendant only. Accordingly, the substantial question law No.1 is answered in favour of the 1st defendant. Substantial Question of Law No.3: 3. Whether the lower appellate court erred in law in holding that the jewels in the 5th item locker were purchased by the plaintiff for the benefit of the 1st defendant and that the plaintiff is not entitled to the same without there being any such pleading or evidence by the 1st defendant particularly when the 1 st defendant claimed the same as of her own and when the relationship of husband and wife between the plaintiff and the 1st defendant came to an end by dissolution of the marriage? 52. Item No.5 of the schedule mentioned properties pertaining to the movable properties viz., Gold biscuits, Sarees etc., kept in 3rd defendant bank's locker in the name of the 1st defendant/wife. A perusal of Exs.A1 to A11 would show that the 1st defendant requested the plaintiff for presentation of j ..... X X X X Extracts X X X X X X X X Extracts X X X X
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