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TMI Blog2023 (7) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... dings before the planning authorities, the first defendant's husband required all the original documents. Therefore, the plaintiff had handed over all the original documents of the property to his brother Subramanian. The very fact that the first defendant's husband had appeared in that proceedings as a Lawyer and he had not claimed any right or shown any animus or hostile intention at the relevant point of time to hold that the suit property is his absolute property. The explanation given by the plaintiff with regard to the custody of the original documents is more probable. If really the plaintiff is not having any right over the property what was the necessity for the first defendant to send Ex.A8 postal card to her uncle. Therefore, the contention of the defendants the suit property was all along treated as absolute property of Subramanian cannot be countenanced. The defendants had not established the source for the purchase of the property by the first defendant's husband. The fact that how the custody of the documents came to the hands of the first defendant's husband was also clearly established by the plaintiff. Subramanian was in fiduciary relationship w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gard to his contentions, the fact remains that the above judgments are not applicable to the facts of the present case. The plea of benami transaction has not been established by the defendants. Accordingly, all the points are answered. The judgment of the trial Court is set aside and the suit is decreed for declaration and recovery of possession and also the accounts as prayed for. - A.S.No.1079 of 1989 - - - Dated:- 26-6-2023 - Honourable Mr.Justice N.Sathish Kumar For the Appellant : Mr. T.M.Hariharan For the R1 to R4 : Mr.H.Lakshmi Shankar JUDGMENT Aggrieved over dismissal of the suit filed by the plaintiff for recovery of possession and also the accounts, the present appeal came to be filed. 2. For the sake of convenience, the parties are referred to herein, as per their rank before the trial Court. 3. The brief facts, leading to the filing of this Appeal Suit, are as follows:- (i)the suit property was purchased by the plaintiff by a registered sale deed, dated 01.02.1969 for a total consideration of Rs. 46,000/-. The defendants 5 to 8 are the tenants in the suit properties. (ii)the plaintiff is the younger brother of Subramanian and Natar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff advised the plaintiff that the matter had to be taken up to the Director of Town Planning, Madras. For that purpose, the said Subramanian required the plaintiff to hand over the sale deed, dated 01.02.1969 together with all the earlier documents for gathering materials to prepare necessary representation. Accordingly, since the plaintiff totally relied upon him, he handed over the original sale deed, dated 01.02.1969 with all the relevant records to his brother Subramanian. As the plaintiff was living away from the suit property at Cumbum, Subramanian informed the plaintiff that his signatures are necessary for preparation of representation. As such the said Subramanian obtained several signatures of the plaintiff on several blank papers. The plaintiff had no reason to suspect his brother and hence, he put signatures in the blank papers. (vi)all of a sudden, on 09.07.1986, the brother of the plaintiff, Subramanian died, leaving behind the defendants 1 to 4 as his legal heirs. The first defendant is the wife of the said Subramanian. She had no siblings. Her father also died. With a fraudulent motive, the first defendant made a publication in Dinathanthi , dated 10.01.1987 as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bramanian purchased the plaint schedule property in the name of the plaintiff. Therefore, the contention of the plaintiff that Subramanian was depending only the income of the landed properties is not at all true. Apart from his professional income, the said Subramanian was getting a sum of Rs. 25,000/- every year from his landed properties at Cumbum. (x)during the life of Suruliandi Asari, he was managing the properties of Subramanian and paying a sum of Rs. 25,000/- as yearly income from that properties. After his death, the plaintiff agreed to look after the said properties, since he is permanently residing at Cumbum. Accordingly, the plaintiff was regularly paying the amount till 1984. She submitted that the plaint schedule property was purchased by her husband in the name of the plaintiff as benami. (xi)the specific case of the first defendant is that her husband was married to one Lakshmi on 23.01.1967. Since she was suffering from leucodima disease and suppressing the same the marriage was solemnized, the husband of the first defendant filed an application to obtain a decree of nullity of his first marriage with the said Lakshmi. In the meanwhile, he negotiated to purc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ex.X14 were marked. On the side of the defendants, R.W.1 to R.W.6 were examined and Ex.B1 to Ex.B87 were marked. 5. Based on the above pleadings, the trial Court had framed the issues: 1) Whether the suit property was purchased by Subramanian in the name of the plaintiff as benami? 2) Whether the plaintiff is entitled to recovery of possession? 3) Whether the first defendant is liable to submit statement of accounts? 4) To what other reliefs? The following additional issues were framed: 1. Whether the defendants are permissive occupants of the suit property? 2. Whether the purchase of the suit property attracts Section 4(3)(a) of Act 45 of 1988) 3. Whether the defendants perfected title by adverse possession? 6. On the basis of the evidence and materials, the trial Court dismissed the suit on the ground that the plaintiff has not proved his income to purchase the suit property. Further, the property had been purchased in favour of other coparcener by another coparcener and the defendants are also perfected title by adverse possession and non suited plaintiff by dismissing the suit. Aggrieved over the same, the present appeal came to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... steps to reconvey the property in his favour after the divorce proceedings were over. Ex.A7, dated 01.09.1971 makes it very clear that first wife had already executed a release deed in favour of Subramanian relinquishing her right. Such being the position, Subramanian ought to have sought for reconveyance, if the property is purchased by him in the name of the plaintiff as benami. On the other hand, even in 1983, when an application was filed before the planning authorities, Subramanian had appeared as a lawyer on behalf his brother/plaintiff. These facts clearly show that Subramanian never asserted during his life time that the property was purchased by him in the name of his brother as benami. Therefore, the contention of the defendant that the property was purchased in the name of the plaintiff as benami cannot be countenanced. 7.4. That apart, it is his further contention that even the first defendant herself addressed a letter under Ex.A8, to his uncle informing about the rejection of the plan approval. Therefore, it is submitted that the defendants had failed to establish the plea of benami transaction. The plaintiff produced the documents under Ex.A9 to Ex.A12, bank accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her of the family. Merely because, the house warming ceremony was conducted by Subramanian, that will not be sufficient to come to the conclusion that the entire purchase was binami. 7.7. It is the further contention of the learned counsel for the appellant that the first defendant herself admitted in her evidence that she was married in the year 1977 and prior to that, she does not aware of anything about the family affairs. Such being the position, setting up a plea of benami transaction cannot be countenanced and it is not the case of the defendants that the property was purchased by the coparcener in the name of another coparcener. Therefore, the plea of the defendants that they are entitled to the benefit under Section 4(3)(a) of Act 45 of 1988 does not arise at all. 7.8. In respect of his submission, the learned counsel for the appellant had relied upon the following judgments: 1. Jaydayal Poddar (deceased) through lrs., and another vs. MST.BIBI Hazra and others [(1974) 1 SCC 3] 2. Koppula Kotayya Naidu and others vs. Chitrapu Mahalakshmamma [1933 L.W. 645] 8.1. Whereas, it is the contention of the learned counsel for the respondents that the plea of be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been retained by him. The plaintiff has not at all produced any payment receipts and he did not remember when the house tax assessment and electricity connection was changed in his name. 8.5. Admittedly, the old building was demolished and new building was constructed in the year 1984. Application for planning approval and other statutory formalities were done in the plaintiff s name. According to the learned counsel for the respondents, the entire expenditure was met by Subramanian. He had produced Ex.B5, Ex.B9 and Ex.B20, which are various receipts, bills, vouchers in respect of floor lying, electrical work and other works to substantiate the same. The said receipts establishes the fact that only Subramanian had met all the expenses. Evidence of D.W.3 to D.W.6 had not been disproved. 8.6. The allegation of the plaintiff is that the old house was demolished by one Kandasamy and Jeyaraman from Jaihind Puram, but they were also not examined. P.W.1, though claims that he had printed the invitation card for house warming ceremony, the very fact that the house was named as Sridar Illam, indicates that Sbramanian continued to be in possession as absolute owner. It is also es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or consideration in this appeal are as follows: 1. Whether the defendants, who set up a plea of benami, had discharged their burden by establishing all the ingredients to satisfy the benami transaction? 2. Whether the defendants had perfected title by way of adverse possession? 3. Whether the defendants transaction is saved under Section 4 (3) (a) of Act 45 of 1998? 10. Heard the learned counsel appearing on either side and perused the materials available on record. 11. It is not in dispute that the plaintiff and the first defendant s husband are brothers. The first defendant s husband one Subramanian was the lawyer by profession and he was practicing at Madurai from the year 1961. This fact is also not in dispute. It is also admitted by both sides that Subramanian married one Lakshmi and he had also filed an application under Hind Marriage Act to annul the marriage on the ground of suppression of material facts. Ex.A3 and Ex.A4, proceedings clearly shows that the marriage has been annulled by a decree of nullity dated 31.08.1971. After that, Lakshmi also executed a deed of relinquishment in favour Subramanian, which is marked as Ex.X7. The motive for be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n divided orally on 20.05.1959 itself. If really the property was purchased under Ex.B1 on 01.02.1969, the same should have been reflected in the partition deed. But, the same is not found place. This itself clearly indicates that the theory of the defendants that the property was purchased in the name of the coparcener for the benefit of other coparcener cannot be countenanced. Further, there is no plea in the written statement to the effect that the property was purchased for the benefit of the coparcener in the name of the plaintiff. 14. Whereas, the specific defence of the first defendant is that the property has been purchased as benami in the name of the plaintiff only to avoid the possible claim of the first wife of Subramanian. It is relevant to note that Subramanian was a lawyer by profession. Ex.B1, sale deed produced by the defendants, when carefully perused, the same clearly shows that the properties have been sold absolutely in favour of the plaintiff. In Ex.B1, two attesting witnesses had signed. One of the attesting witnesses is stated to be a Lawyer namely, Karuppiah, Advocate. The sale deed clearly shows that the entire consideration has been paid by the plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertificate in his name to verify the document of the property, which is going to be purchased by his own brother, is quite normal. That alone cannot be taken as one of the circumstances to show that benami transaction has been proved. 18. It is relevant to note that another circumstance that was pleaded to show that the husband of the first defendant has sufficient income to purchase the property is that Subramanian had another house in the North Veli Street, Madurai and he had sold the same, out of which the sale consideration of Ex.B1 was paid. Though it is admitted by both sides that Subramanian had a house at Madurai and it has been sold prior to the purchase of the suit property under Ex.B1, the defendants had not produced any document or the copy of the document to show the nature of the sale consideration derived from the said house. Whereas, Ex.X7, release deed executed by the first wife also indicates that a sum of Rs. 5,500/- was paid towards permanent alimony and after receiving the entire amount, the release deed had been executed. Therefore, in the absence of any evidence in this regard to show that the husband of the first defendant derived the consideration amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned authorities, being a Lawyer Subramanian would not have prepared those applications in the name of his brother alone. He would have infact acted on his behalf. He had only appeared as a Lawyer. This conduct of the brother not making any claim or not asserting his right over the suit property at the relevant point of time makes it very clear that the plea of benami transaction by the wife and children of Subramanian after his death cannot be countenanced. 22. At the relevant point of time, the application filed before the concerned authority on behalf of the plaintiff by Subramanian only as a Lawyer clearly shows that he had not shown any animus or shown any hostile intention to treat the suit property as his absolute property. These facts had not even been considered by the trial Court. It is the specific case of the plaintiff that a sum of Rs. 3,50,000/- had been spent by him to renovate the house. To substantiate the same, he had also filed his bank accounts under Ex.A9 to Ex.A12. The said documents clearly shows the withdrawal of the amount from the said account at the relevant point of time. It is also the contention of the plaintiff that since his brother was livin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiff is that during the proceedings before the planning authorities, the first defendant's husband required all the original documents. Therefore, the plaintiff had handed over all the original documents of the property to his brother Subramanian. The very fact that the first defendant's husband had appeared in that proceedings as a Lawyer and he had not claimed any right or shown any animus or hostile intention at the relevant point of time to hold that the suit property is his absolute property. The explanation given by the plaintiff with regard to the custody of the original documents is more probable. If really the plaintiff is not having any right over the property what was the necessity for the first defendant to send Ex.A8 postal card to her uncle. Therefore, the contention of the defendants the suit property was all along treated as absolute property of Subramanian cannot be countenanced. 26. The other submission made by the learned counsel for the defendants is that the plaintiff got married in the year 1977. Therefore, his contention that he made enquiry through his father-in-law before purchasing the property on 01.02.1969 is highly improbable. The evidence an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he defendants had not even taken any steps to examine him. Similarly, the vendor of the suit property was also not examined. 30. Considering these aspects, this Court is of the view that the finding of the trial Court that the defendants perfected title by adverse possession is also not correct. In order to prove the plea of adverse possession, hostile intention and animus on the part of the defendant's husband has to be established. When Subramanian himself has not shown any animus and hostile intention to hold that the suit property is his absolute property, the plea of adverse possession has to necessarily fail. Though various judgments have been placed by the learned counsel for the defendants with regard to his contentions, the fact remains that the above judgments are not applicable to the facts of the present case. The plea of benami transaction has not been established by the defendants. 31. Accordingly, all the points are answered. The judgment of the trial Court is set aside and the suit is decreed for declaration and recovery of possession and also the accounts as prayed for. The defendants 1 to 4 are directed to hand over the possession of the suit property wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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