R. Mala, J.@mdashThis Second Appeal is filed against the judgment and decree of the Additional District Judge (Fast Track Court No. 1) Tindivanam in A.S. No. 79 of 2002 dated 18.10.2002, reversing the judgment and decree of the learned Principal District Munsif, Tindivanam in O.S. No. 137 of 1994 dated 28.8.1998.
2. The averments contained in the plaint are as follows:
(i) The suit property is absolutely belonging to the plaintiff''s wife viz. Chinnakulandai Ammal. The plaintiffs father-in-law Rangasamy Pillai is having 3 daughters viz, Chinnakulandai Ammal and defendants 1 and 2. When Chinnakulandai Ammal was minor, the suit property has been purchased by Rangasamy Pillai as guardian of Chinnakulandai Ammal on 20.8.1964 for Rs. 1,500/-. Since, Chinnakulandai Ammal was physically challenged and not keeping good health, the property has been purchased for the benefit of her marriage. After purchasing the property, Rangasamy Pillai was in possession and enjoyment of the same on behalf of Chinnakulandai Ammal and neither Rangasamy Pillai nor the defendants have right over the property. The marriage between the plaintiff and Chinnakulandai Ammal was solemnised 21 years before the filing of suit. At the time of marriage, Rangasamy Pillai and his wife Ponnammal promised to give 1/3rd share of the property belonging to them to the plaintiff apart from the suit property. Chinnakulandai Ammal died 2 years back without issues prior to the filing of the Suit. The plaintiff by way of succession is in possession and enjoyment of the same and is also paying Kist. Since the defendants attempted to interfere with the suit property, the plaintiff is constrained to file the Suit for declaration of title and permanent injunction and prayed for a decree.
3. The gist and essence of the written statement filed by the defendants are as follows:
(i) The suit property is belonging to Chinnakulandai Ammal. Rangasamy Pillai is having three daughters. The property has been purchased by Rangasamy Pillai in the name of his minor daughter Chinnakulandai Ammal for the benefit of her marriage since she was physically challenged is hereby denied. The marriage between the plaintiff and Chinnakulandai Ammal has been performed 21 years before the Suit. The averment that the plaintiff has married Chinnakulandai Ammal based on the undertaking given by her parents Rangasamy Pillai and Ponnammal that they have given 1/3rd share of the property belonging to them apart from the Suit property is denied. The Suit property has been purchased out of the income of Rangasamy Pillai.
(ii) During the lifetime of Chinnakulandai Ammal, she has not claimed any right over the property and she was in possession and enjoyment of the property. The property was purchased by Rangasamy Pillai and he was in possession and enjoyment of the same. Then, he executed a settlement deed in favour of the defendants from the date of settlement deed and they are in possession and enjoyment of the same. Chinnakulandai Ammal was left out by the plaintiff after her marriage. Only to grab the property, the plaintiff has filed the Suit. Chinnakulandai Ammal during her lifetime never claimed any right over the property and she was not in possession and enjoyment of the same. The Suit is for non-joinder of necessary party. Hence, the defendants are prayed for dismissal of the suit.
4. The learned Principal District Munsif, Tindivanam after considering the arguments of both Counsel and the averments contained both in the Plaint and the written statement, framed six issues and considering the documents Exs. A1 to A5 and B1 to B23 and the oral evidence of P.W.I to P.W.3 and D.W1 and D.W.2, dismissed the Suit with costs. Against that, the plaintiff has preferred an Appeal in A.S. No. 79 of 2002. The learned Additional District (Fast Track Court No. 1) Tindivanam after considering the arguments of both sides, framed 6 points for determination and allowed the Appeal. Against that, the present Appeal has been preferred by the defendants.
5. At the time of admission, the following substantial questions of law arose for consideration:
(a) Whether the lower Appellate Court is justified in holding that the Suit is hit by Section 4 of Benami Prohibitions Act, 1988 overlooking Section 4(3) of the said Act?
(b) Is the lower Appellate Court justified in not considering the plea of adverse possession especially when there is a specific issue framed in the suit?
6. The respondent/plaintiff has filed a Suit for declaration of title and permanent injunction stating that the property has been purchased in the name of his wife Chinnakulandai Ammal for the benefit of her marriage and till her death, she was in possession and enjoyment of the same. After her death, as a sole heir, he inherited the property by way of succession and is in possession and enjoyment of the property. The appellants are the sister of the deceased Chinnakulandai Ammal, who claimed title over the property by way of settlement deed alleged to have been executed by her father Rangasamy Pillai and they attempted to interfere with the property, hence, the plaintiff was constrained to file the Suit for declaration of title and permanent injunction. The appellants/defendants resisted the same on the ground that the property has been purchased by their father and he alone was in possession and enjoyment of the same and the property has not been purchased for the benefit of Chinnakulandai Ammal and their father executed a settlement deed dated 17.12.1993 as Ex. A23. In pursuant to the same, they are in possession and enjoyment of the same. Hence, they prayed for dismissal of the suit.
7. The Trial Court after framing necessary issues and considering the oral and documentary evidence, dismissed the Suit stating that the respondent/plaintiff was not in possession and enjoyment of the property. But in the Appeal, the First Appellate Court has come to the conclusion that the respondent herein is in possession and enjoyment of the property based on documents Ex. A2 to A4 and granted a decree as prayed for in the plaint. Against which, the present Appeal has been preferred.
8. Learned Counsel for the appellant would contend that the property has been purchased by Rangasamy Pillai. He has three daughters viz. Chinnakulandai ammal, Valliammai Ammal and Subhadra Ammal. That apart, during the lifetime of Rangasamy Pillai, the property has been purchased. By that time, Chinnakulandai Ammal was 16 years old and she has no independent income. The property has been purchased out of the own income of Rangasamy Pillai, even though in the name of Chinnakulandai Ammal and, hence, he is alone in possession and enjoyment of the property.
9. The conduct of Rangasamy Pillai has been proved that the property has been standing in the name of her daughter, only for his benefit so the Benami Transactions (Prohibition) Act, will not effect. The para 8 of the judgment of the First Appellate Court is not correct. The Benami Transactions (Prohibition) Act came into existence only in 1988 but the property has been registered on 20.8.1964 vide Ex. A1. So, the First Appellate Court has committed error in coming to the conclusion that the property has been purchased by Rangasamy Pillai for benefit of her daughter Chinnakulandai Ammal, is not correct. Hence, he prayed for setting aside the decree and judgment of First Appellate Court and to restore the judgment and decree of the Trial Court and prayed for allowing the Appeal. He relied upon the decision reported in
10. Per contra, learned Counsel for the respondent would contend that it is true that Benami Transactions (Prohibition) Act has come into existence in the year 1988 but it is not having retrospective effect. Hence, Ex. A1 is for the benefit of her daughter Chinnakulandai Ammal. Hence, Chinnakulandai Ammal was the owner of the property who is none other than wife of the respondent and to prove the possession of the property, he filed documents Ex. A2 to A4. Hence, the First Appellate Court allowed the Appeal in its proper perspective. He also relied upon the decision reported in,
11. Admittedly, the sale deed-Ex. A1 is in favour of Chinnakulandai Ammal, who is the wife of the respondent/plaintiff. The suit property has been purchased while Chinnakulandai Ammal was 15 years old by her father/guardian Rangasamy. Rangasamy is having a wife, by name, Ponnammal and three daughters viz., Chinnakulandai Ammal, Valliammai Ammal/first defendant/first appellant herein and Subhadra Ammal/second defendant/second appellant herein. The marriage between Chinnakulandai Ammal and the respondent/plaintiff is an admitted one. They are not having any issues. She died intestate. The respondent claiming declaration of title over the suit property stating that the property stands in the name of his wife Chinnakulandai Ammal and since, she died intestate, he succeeded the property and he is in possession and enjoyment of the same. Since his sister-in-laws are claiming title over the property and disturbing his possession, he came forward with the Suit.
12. At this juncture, a defence has been raised that even though, Ex. A1-Sale deed stands in the name of Chinnakulandai Ammal, but that has been purchased out of the income of Rangasamy, father of appellants, in the name of his daughter. He is in possession of the original sale deed and Patta stands in his name. It is not purchased for the benefit of the minor daughter. It is for his benefit the property has been purchased.
13. Per contra, the respondent/plaintiff has urged that since Chinnakulandai Ammal is handicapped and her health condition is some what feeble, hence, for the benefit of her marriage the sale deed has been taken in the name of his daughter for her benefit. So, it is not a Benami transaction.
14. It is well settled principle of law that the person who plead Benami must prove the same. The appellants ought to have proved the following points:
(i) Who paid the purchase money?
(ii) What is the motive for purchasing the property in the name of other person?
(iii) What is the relationship between the person?
(iv) Who is in custody of the original sale deed?
(v) Who is in possession of the property?
15. The learned Counsel for the appellants would contend that the property has been purchased out of the income of the father. The document itself has clearly proved that at the time of execution of Ex. A1, Chinnakulandai Ammal is only 15 years old. So, the sale consideration has been paid by her father. The relationship is father and daughter. The possession is with the father. So, the Trial Court has considered all the aspects in a proper perspective and dismissed the Suit. But, the First Appellate Court without assigning any reasons had set aside the judgment and decree passed by the Trial Court.
16. Now, it is relevant to refer Section 4 of the Benami Transactions (Prohibition) Act, 1988, which reads as under:
4. Prohibition of the right to recover property held Benami--(1) No Suit, claim or action to enforce any right in respect of any property held Benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.
(2) No defence based on any right in respect of any property held Benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.
(3) Nothing in this Section shall apply-
(a) Where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or
(b) Where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity.
17. It is proper to consider the decision relied upon by both sides. The learned Counsel for the appellants relied upon the decision reported in Jaydayal Poddar v. Bibl Hazra (supra), wherein the Supreme Court has held as under:
6. It is well settled that the burden of proving that a particular sale is Benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of Benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a Benami is the intention of the party or parties concerned; and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be Benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question, whether a particular sale is Benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the Courts are usually guided by these circumstances: (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a Benami colour;) the position of the parties and the relationship, it any, between the claimant and the alleged Benamidar; (5) the custody of the title-deeds after the sale; and (6) the conduct of the parties concerned in dealing with the property after the sale.
18. In the decision reported in R. Rajagopal Reddy v. Chandrasekhran (supra), the Supreme Court had observed Benami Transactions (Prohibition) Act, 1988, is in prospective in operation and not retrospective. Section 4 is not declaratory, but only curative legislation, creates substantive rights in favour of Benamindars and destroying rights of real owners. The Supreme Court has further held as under:
27. As a result of the aforesaid discussion it must be held, with respect that the Division Bench erred in taking the view that Section 4(1) of the Act could be pressed in service in connection with suits filed prior to coming into operation of that section. Similarly the view that u/s 4(2) in all suits filed by persons in whose names properties are held no defence can be allowed at any future stage of the proceedings that the properties are held Benami cannot be sustained. As discussed earlier Section 4(2) will have a limited operation even in cases of pending suits after Section 4(2) came in to force if such defences are not already allowed earlier. It must, therefore, be held, with respect, that the decision of this Court in
So, the Act was only prospective in effect not retrospective effect. While considering the citation, even though, the sale deed is of the year 1964, but, the Suit has been filed in the year 2003 after the Benami Transactions (Prohibition) Act 1988, came into existence.
19. The plea has been raised, so that can be decided in this case, whether the sale deed has been hit by Benami Transactions (Prohibition) Act, 1988.
20. In the decision of this Court reported in Sundaram Nadar v. Sukumaran (supra), this Court had observed that a Benami transaction is one where one buys property in the name of another or gratuitously transfers his property to another, without indicating an intention to benefit the other. The Benamidar therefore has no beneficial interest in the property or business that stands in his name, he represents in fact the real owner and so far as their relative legal position is concerned, he is a more trustee for him. The Benami purchases in the names of children, without any intention of advancement, are frequent in India. There can be no doubt now that a purchase in India by a native of India of property in India in the name of his wife unexplained by other proved or admitted facts is to be regarded as a Benami transaction, by which the beneficial interest in the property is in the husband, although the ostensible title is in the wife. In order to prove the Benami nature of the transaction, evidence has to be led to show (1) That the purchaser paid the consideration, (2) That he had the custody of the sale deed. (3) That he was in possession of the property, and (4) The motive for the transaction. Thus, from the various authorities cited above, the relevant consideration with respect of the Benami transaction is source of purchase-money and manner of enjoyment are the most important test.
21. In the decision reported in Sundaram Nadar v. Sukumaran (supra), the High Court has held as under:
28. Thus, from a conspectus of the various authorities referred to above, the relevant considerations with regard to the question of Benami are--
(a) Source of purchase-money,
(b) Manner of enjoyment,
(c) Consideration flowing for the transfer was not intended to be a gift in favour of the person in whose name the transfer is taken,
(d) Custody of title deed,
(e) Motive for the transaction,
(f) The position of the parties and the relationship, if any, between the claimant and the alleged Benamidar, and
(g) Conduct of the parties in dealing with the property after sale.
29. As already noticed, the first indeed is not exhaustive, but the fact remains that the source of purchase-money is the most important test (vide
30. It is also now settled law that the burden of proof is or the person alleging Benami.
22. While considering the above citation, the onus is on the person who pleads Benami transaction. As per the decision cited supra, Source of purchase-money, Manner of enjoyment. Custody of title deed, Motive for the transaction, Relationship, Conduct of the parties in dealing with the property after sale.
23. It is appropriate to consider the decisions reported in Nand Kishore Mehra v. Sushila Mehra (supra), wherein the Supreme Court has held as under:
6. Sub-section (1) of Section 3, as seen, prohibits a person from entering into any Benami transaction. Sub-section (3) of Section 3, as seen, makes a person who enters into a Benami transaction liable for punishment. Section 5 makes properties held Benami liable for acquisition without payment of any amount. But, when Sub-Section (2) of Section 3 permits a person to enter into a Benami transaction of purchase of property in the name of his wife or unmarried daughter by declaring that the prohibition contained against a person in entering into a Benami transaction in Sub-section (1) of Section 3, does not apply to him, question of punishing the person concerned in the transaction under Sub-section (3) thereof or the question of acquiring the property concerned in the transaction u/s 5, can never arise, as otherwise the exemption granted u/s 3(2) would become redundant. What we have said of the person and the property concerned in Sub-section (2) of Section 3 in relation to non-applicability of Section 3(3) and Section 5 shall equally hold good for non-applicability of the provisions of Sub-sections (1) and (2) of Section 4 in the matter of filing of the suit or taking up the defence for the self-same reason. Further, we find it difficult to hold that a person permitted to purchase a property in the name of his wife or unmarried daughter under Sub-section (2) of Section 3 notwithstanding the prohibition to enter into a Benami transaction contained in Sub-section (1) of Section 3 cannot enforce his rights arising therefrom, for to hold so would amount to holding that the statute which allows creation of rights by a Benami transaction also prohibits the enforcement of such rights, a contradiction which can never be attributed to a statute. If that be so, there can be no valid reason to deny to a person, enforcement of his rights validly acquired even in the past by purchase of property in the name of his wife or unmarried daughter, by making applicable the prohibition contained in respect of filing of Suits or taking up of defences imposed in respect of Benami transactions in general by Sub-sections (1) and (2) of Section 4 of the Act. But, it has to be made clear that when a Suit is filed or defence is taken in respect of such Benami transaction involving purchase of property by any person in the name of his wife or unmarried daughter, he cannot succeed in such suit or defence unless he proves that the property although purchased in the name of his wife or unmarried daughter, the same had not been purchased for the benefit of either the wife or the unmarried daughter, as the case may be, because of the statutory presumption contained in Sub-section (2) of Section 3 that unless a contrary is proved that the purchase of property by the person in the name of his wife or his unmarried daughter, as the case may be, was for her benefit.
7. Therefore, our answer to the question under consideration is that neither the filing of a Suit nor taking of a defence in respect of either the present or past Benami transaction involving the purchase of property by a person in the name of his wife or unmarried daughter is prohibited under Sub-sections (1) and (2) of Section 4 of the Act.
24. In the decision reported in Kamakshi Ammal v. Rajalakshmi (supra), this Court has held as under:
The Supreme Court has held in Mithlesh Kumari v. Prem Behari Khare 1989 (1) LW 430 (S.C) that Section 3 has only prospective in operation. Further, Nafeese Nachiar (Died) and 4 Ors. v. Umma Habeeba Nachiar and 14 Ors. 1994 (1) LW 429 (D.B.) has also held thus:
In the light of the aforesaid provisions, the only way in which Sub-section (2) of Section 3 can be construed is that it enables a person to purchase property in the name of his wife or unmarried daughter without being liable to be prosecuted and in such cases, the property will not be liable for acquisition. It is only to protect a person who purchases property in the name of his wife and unmarried daughter for their benefit as against prosecution and compulsory acquisition of property, Section 3(2) has been introduced. Whenever a property is purchased by a person in the name of his wife or unmarried daughter, the Act provides for a mandatory presumption that the said transaction is for the benefit of wife or the unmarried daughter, as the case may be. In such cases, the burden is on the person who claims it to be a Benami transaction for the benefit of the purchaser and not for the benefit of his wife or unmarried daughter to prove the contrary and rebut the presumption. The section does not mean that whenever a property is purchased in the name of a wife, it is open to the purchaser himself or persons claiming under him to put forward a case of Benami.
25. In the decision reported in P.R. Hemachandra Babu v. P.R. Janardhanam (supra), this Court has held as under:
18. It is, therefore evidently clear that if the property was purchased either in the name of his wife or unmarried daughter, there is a presumption, unless the contrary is proved, that the property is purchased only for their benefit. So far as the present case is concerned, the appellants have not let in any evidence to show that the property was purchased Benami in her name, but it was intended to benefit only the father. There is also no pleading in the plaint to show that the sale deed was taken Benami in the name of the mother of the parties and the property was purchased only for the benefit of the father of the parties. In view of Section 3(2) of the Act, there is a presumption in favour of the mother of the parties and that presumption has not been rebutted by the appellants by adducing any positive evidence....
26. So, as per the decision reported in Nand Kishore Mehra v. Sushila Mehra (supra), a Benami transaction is only prospective in operation and not retrospective effect. As already stated, even though Ex.A1 is dated 20.8.1994 But the Suit has been filed in 2003 after the Benami. Transactions (Prohibition) Act, 1988 came into force. So, the defendants/appellants herein are having every right to raise the plea of Benami transaction. It is well settled principle of law that the person who plead Benami must prove his case.
27. As per the decision in P. Bhima Reddy v. State of Mysore (supra)--
The onus to prove that the purchase is Benami is on the person who alleges it.
28. The relevant consideration with regard to the question of Benami transaction is that if the property was purchased either in the name of his wife or unmarried daughter, there is a mandatory presumption that such a transaction is for the benefit of wife or unmarried daughter. The burden is on the person alleging Benami transaction to rebut the presumption and to prove the transaction was not for the benefit of such person.
29. So, the appellants have to prove the Benami. It is pertinent to note that Rangasamy Pillai, died before filing the Suit. After the death of Chinnakulandai Ammal, he executed the settlement deed-Ex. B22 in favour of two daughters/appellants herein in respect of property purchased in the name of Chinnakulandai Ammal and other properties. Admittedly, the sale consideration has been paid by the father. Even though the plaintiff/respondent herein has stated that the property has been purchased for the benefit of the unmarried daughter for her marriage since she was suffering from some illness. But, to prove the same, no one has been deposed the only evidence available is that she is anemic. The anemic is common in India. It is not a serious illness. In the above said circumstances, the motive put forth by the respondent/plaintiff is not acceptable one. Moreover, it is pertinent to note that the respondent is not a competent person to speak about Ex. A1, motive for the transaction. Because, he married Chinnakulandai Ammal after Ex. A1, so, he is not the person aware of Ex. A1, personally. But, admittedly, he has examined PW2. In his evidence, he has fairly conceded that he is the relative of respondent/plaintiff. The appellants/defendants are away from the native village. So, his evidence is not trust worthy. In his evidence also he has stated that Chinnakulandai Ammal had enjoyed the property only for ten years, but the marriage had been performed 20 years prior to her death.
30. In such circumstances, I am of the opinion the ''motive'' has not been proved by the respondent/plaintiff. But, the relationship between them is father and daughter. If any property has been purchased in the name of daughter, it is for the benefit of the daughter. But, the possession is with the father, till Ex. B22. After that, during his life, he executed the Settlement Deed as per Ex. B22 and in pursuance of that, the appellants were in possession and enjoyment of the same. The chitta stands in the name of Rangasamy viz., Ex. B1. Ex. B2 stands in the name of Chinnakulandai Ammal, guardian of Rangasamy. Adangal are Exs.B4 to B6 and they stand in the name of Chinnakulandai Ammal, till Fasli 1396. Patta also stands in the name of Rangasamy. Exs.B5 to BIO are kist receipts standing in the name of Ponnammal and Exs.B11 to B13 are kist receipts standing in the name of Rangasamy. Exs. B15 and B16 also stands in the name of Rangasamy. Patta number is 788 and it also stands in the name of Rangasamy. Kist receipts are Exs.B15 to B21 standing in the name of Rangasamy which shows till the filing of the suit, the property was in the possession of Rengasainy. Even though, the marriage of Chinnakulandai Ammal has been performed 25 years back, the respondent has not filed any single document to show that after the marriage, he is in possession and enjoyment of the same on behalf of his wife Chinnakulandai Ammal. He has filed the Kist receipt only for the years 1402 and 1403.
31. In such circumstances, it has been clearly proved that the property was in possession and enjoyment of the father Rangasamy till Ex. B22, after that, it was in the possession of the appellants. So, it is true that the original document has not been filed. One more important point to be noted is that even in 17.12.1993, after the death of his daughter Chinnakulandai Ammal, he executed the settlement deed in favour of her daughters, which shows he dealt with the property, after knowing the Settlement Deed then only the plaintiff/respondent herein came forward with the Suit for declaration of title and injunction.
32. It is, pertinent to note that the respondent herein/plaintiff has not filed any document to show that from the date of marriage between himself and Chinnakulandai Ammal, he was and is in possession and enjoyment of the property. After the execution of the Settlement Deed-Ex. B22 only, the respondent/plaintiff has come forward with the Suit for declaration of title and for injunction. In the above said circumstances, the Trial Court has considered the same in a proper perspective and dismissed the Suit, whereas, the First Appellate Court has not considered this aspect and without assigning any reason had set aside the judgment and decree passed by the Trial Court, so it is perverse and the decree and judgment passed by the First Appellate Court is liable to be set aside and the Second Appeal is liable to be allowed.
33. In fine:
(i) The Second Appeal is allowed.
(ii) The decree and judgment passed by the First Appellate Court is set aside.
(iii) The decree and judgment passed by the Trial Court is restored.
(iv) In Trial Court, the O.S. No. 137 of 1994, is dismissed.
No costs.
