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TMI Blog2023 (8) TMI 1103X X X X Extracts X X X X X X X X Extracts X X X X ..... y in 1961 to get the 1st defendant married is projected as a pointer. When we look at the totality of the circumstance and evidence of the D.W.1, the eldest daughter of Ramasamy Chettiar and Sowdammal, we find that we have to agree with the Trial Court in its conclusion that the property was purchased by Ramasamy Chettiar out of his own funds and he was intend benefit Sowdammal / his wife through the said purchase. No doubt, there was some ancestral property but it is not shown that it had yielded necessary income for the purchase. Therefore, we should necessarily proceed on the finding that the property was self acquisition of Ramasamy Chettiar. Once it is held that the property was a self-acquisition of Ramasamy Chettiar, the plaintiff and the defendants 1 to 6 along with Sowdammal would each be entitled to 1/8th share. The 1/8th share of Sowdammal would devolve, on her death, on her heirs depending on her intestacy or otherwise. Validity of the Will left by the Sowdammal - Whether the Will dated 05.06.1995 has been proved to be true and valid ? - As rightly pointed out by the learned counsel for the plaintiff the signatures made at the time of execution of the Will are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .B15 and assessment orders under Exs.B18, 19, 20 and 21 to show he has been doing some business at that time. We are therefore, inclined to accept the finding of the Trial Court regarding the character of Item 4 of the suit schedule properties. 6th item of the suit schedule properties was purchased under two sale deeds - Whether it is shown to the plaintiff to plead that Item 6 belonged to the joint family ? - Item 6 is the absolute property of the 9th defendant and the plaintiffs are not entitled to any share in the suit properties. The Trial Court has granted 1/7th share to the plaintiff in Item No.5 of Schedule 1 and Item 1 of Schedule 2, which are admittedly joint family properties. Defendants 2, 9 and 10 is unable to pick holes in the findings of the Trial Court with reference to those properties, since the character of those properties has been admitted. The Trial Court granted 1/7th share treating the children of Ramasamy Chettiar as coparceners in view of the advent of Hindu Succession (Amendment) Act 39 of 2005. We therefore, affirm the said findings of the Trial Court. a) the plaintiff is declared entitled to 1/7th share in Item 1 to 3 and 5 of Schedule 1 and I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arious immovable and movable properties in the name of his wife Sowdammal, his eldest son, R.Varadharaj / 2nd defendant as well as his daughter-in-law / V.Selvarani, wife of the 2nd defendant. It was claimed that after the death of Ramasamy Chettiar on 21.01.1968, his wife Sowdammal, plaintiff and defendants 1 to 6 succeeded to his estate and have continued to be joint in status as joint family members. It is also claimed that all the properties were enjoyed jointly. Sowdammal died on 12.12.2001 and even after her death, the family continued to be joint without any disruption in their status. It is therefore, claimed by the plaintiff that the properties being joint family properties and by virtue of the Hindu Succession (Amendment) Act, 2005, the plaintiff and defendants 1 to 6, being the children of Ramasamy Chettiar would each be entitled to 1/7th share in the suit schedule properties. Though the original claim was to 9/24th share, the same was amended claiming 1/7th share. 3. The defendants 1 and 3 to 6 namely, daughters of Ramasamy Chettiar supported the case of the plaintiff. The 2nd defendant, who is the other son of Ramasamy Chettiar filed a separate written statement, co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one? iii) Whether the above said Will is true, valid and whether the plaintiff is entitled for a decree of declaration as prayed for ? iv) Whether the plaintiff is entitled for permanent injunction as prayed for ? v) Whether the plaintiff is entitled for mesne profits at the rate of Rs. 1,000/-? vi) To what other relief? 7. The Trial Court concluded that though suit items 1 to 3 have been purchased in the name of Sowdammal, the evidence on record would go to show that it was not intended to be for the benefit of Sowdammal only. The learned Judge held that the presumption under Section 3(2) of the Benami Transaction (Prohibition) Act as it stood prior to the 2016 amendment, stood rebutted. In view of the evidence that is available on record, the learned Trial Judge however, concluded that Items 4 and 6 which stood in the name of the 2nd defendant and the 9th defendant / wife of the 2nd defendant belonged to them absolutely and it was not shown those were properties purchased out of the income of the joint family. 8. As regards the movables, the learned Trial Judge held that except Item 1, which is about 30 Sovereigns of jewels, other items were not shown ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Benami Transaction (Prohibition) Act, the learned counsel would contend that though purchase of property by the husband in the name of the wife is permitted, the law presumes particularly, Sub-section 2 of Section 3 presumes that the purchase is for the benefit of the wife or the unmarried daughter and requires the person alleging otherwise to prove the contrary. 13. He would also draw our attention to the judgment of the Hon'ble Supreme Court in Rajagopal Reddy and others Vs. Padmini Chandrasekhran (dead) by LRs and others reported in 1995 (1) CTC 568 wherein, the Hon'ble Supreme Court had given limited restrospectivity to the provisions of Benami Transaction (Prohibition), Act and held that a plea that the properties are held Benami cannot be taken after the date on which, the Act came into force i.e., 19.05.1988. 14. The learned counsel would further argue that the evidence available is not sufficient to dislodge the presumption that is created under Section 3(2). As regards the purchase of properties by the 2nd defendant, the learned counsel would submit that Item No.4 was purchased by the 2nd defendant under a sale deed of the year 1967 marked as Ex.A4, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption that the joint family is possessed of family properties. (2) The manager, if he is in possession of family properties and is in management thereof and acquires any other property, the law presumes that it is joint family property. (3) Even in such cases, presumption will arise only if it is shown that the family property had left surplus income out of which other properties could be acquired. If the nature and relative value of the property are such that there is no income, any fresh acquisition cannot be treated as a family property. It is well within the powers of the members of the family that they can acquire separate properties and can have their own avocations in life. There is no law which says that only if a member gets married or comes of a particular age, he can do business or earn income. There is also no presumption that any property acquired by a member is a family property. 15.3. The judgment of this Court in D.S.Lakshmaiah v. L. Balasubramanyam reported in (2003) 10 SCC 310 wherein, it observed as follows :- 17. In view of the aforesaid discussion, the respondents having failed to discharge the initial burden of establishing that there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d counsel would also rely upon the judgment in Valsa Jose Vs. V.B.Chandran and Others reported in 2019 (5) CTC 625 authored by one of us (R.Subramanian. J) to contend that there is no pleading that the ostensible owner namely, 9th defendant stood in a fiduciary capacity to the plaintiff or Ramasamy Chettiar and as such the property was purchased in her name could be treated as joint family property. 18. Contending contra, Mr.C.R.Prasannan, learned counsel for the plaintiff in O.S.No.307 of 2004 would submit that the evidence available on record namely, income tax returns of Ramasamy Chettiar filed as Ex.A8 to A15 would go to show that Ramasamy Chettiar treated Items 1 to 3 as his own property till his death and therefore, the presumption enacted under Sub-section 2 of Section 3 of the Benami Transaction (Prohibition), Act stood rebutted. The learned counsel would also further point out that the evidence of the 1st defendant, who was the eldest daughter, who was about 15 years old when the building in the Items 1 to 3 were put up, to the effect that it was Ramasamy Chettiar, who has spent his earning as Accountant in Pioneer Mills, Coimbatore for the said construction. 19. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name of Sowdammal? ii) Whether the ancestral nucleus found to be in existence earned a sufficient income to leave a surplus to enable purchase of Items 4 and 6 of the 1st schedule in the name of the defendants 2 and 9 respectively ? iii) Whether it is shown to the plaintiff in O.S.No.307 of 2004 to plead that Item 6 belonged to the joint family ? iv) Whether the Will dated 05.06.1995 has been proved to be true and valid ? v) To what relief the parties are entitled to? Point No.1:- 23. While it is the case of the plaintiffs that Items 1 to 3 were purchased under the sale deed dated 27.10.1948 in the name of the Sowdammal from and out of the funds belonging to Ramasamy Chettiar and as such, it is a joint family property, the defendants 2, 9 and 10 would contend that the purchase was out of the income of Sowdammal, who was doing Milk Vending business. It is also their claim that in view of Section 3(2) of the Benami Transaction (Prohibition) Act, there is a presumption that the property purchased by the husband in the name of the wife for her benefit until the contrary is proved. 24. According to the learned counsel for the appellants namely, defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... samy Chettiar out of his own funds and he was intend benefit Sowdammal / his wife through the said purchase. 27. No doubt, there was some ancestral property but it is not shown that it had yielded necessary income for the purchase. Therefore, we should necessarily proceed on the finding that the property was self acquisition of Ramasamy Chettiar. Once it is held that the property was a self-acquisition of Ramasamy Chettiar, the plaintiff and the defendants 1 to 6 along with Sowdammal would each be entitled to 1/8th share. The 1/8th share of Sowdammal would devolve, on her death, on her heirs depending on her intestacy or otherwise. In order to find out the devolution on the death of Sowdammal, we will have to necessarily examine point No.4 which deals with the Will alleged to have been left by Sowdammal. Therefore, we will have to take up Point No.4 and revert to Points No.2 and 3 in the later part of this judgment. 28. Point No.4:- This relates to the validity of the Will left by the Sowdammal. Once we have held that the property belongs to Ramasamy Chettiar, Sowdammal would be entitled to 1/8th share in the property as one of the heirs of the Ramasamy Chettiar. We ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned counsel for the plaintiff in O.S.No.307 of 2004, one Tamil letter 'l' is missing in the signatures made before the Registrar. There are some basic differences in each of the signatures found at the bottom of the each page of the Will. This creates a lot of doubt in the mind of the Court regarding the valid execution of the Will. No doubt, the Trial Court has upheld the execution of the Will but it had overlooked the fact that there is a vast difference in the signatures found in the document. It is basic principle of law that the propounder of the Will has to let in evidence, which will have the effect of putting the Will beyond suspicion. If there is a suspicious circumstance and there has been no attempt or very little evidence made available to dispel such suspicion, the Court will have to necessarily lean in favour of succession over to all the heirs. 33. As we have already pointed out that the disinheritance of at least six of the heirs and preference to a daughter-in-law and married grand daughter by itself is a suspicious circumstance. We are unable to find any evidence that would justify such exclusion by Sowdammal. The above coupled with differences in signa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2nd defendant. The purchase is after 17.05.1988 i.e., coming into force of the Benami Transaction (Prohibition), Act. Therefore, the plaintiffs would have to show that the purchase was made out of the income from the joint family properties but they would also show that the 9th defendant stood in a fiduciary capacity. We can straight away point out that there is no such evidence available and the said sale being one after coming into force of the Benami Transaction (Prohibition), Act, the said sale would be straight away hit by Section 3. We therefore, conclude that Item 6 is the absolute property of the 9th defendant and the plaintiffs are not entitled to any share in the suit properties. The Trial Court has granted 1/7th share to the plaintiffs in O.S.No.307 of 2004 in Item No.5 of Schedule 1 and Item 1 of Schedule 2, which are admittedly joint family properties. 37. The learned counsel for the appellants in A.S.No.481 482 of 2007 namely, the defendants 2, 9 and 10 in O.S.No.307 of 2004 is unable to pick holes in the findings of the Trial Court with reference to those properties, since the character of those properties has been admitted. The Trial Court granted 1/7th share t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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