Full Judgment Text
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CASE NO.:
Appeal (civil) 5142 of 1998
PETITIONER:
Valliammal (D) by Lrs.
RESPONDENT:
Subramaniam & Ors.
DATE OF JUDGMENT: 31/08/2004
BENCH:
Ashok Bhan & S.H. Kapadia
JUDGMENT:
J U D G M E N T
BHAN, J.
Aggrieved against the judgment and decree passed by the High
Court of Judicature at Madras in Second Appeal No. 1324 of 1983
wherein the High Court while reversing and setting aside the
concurrent judgments of the two courts below has dismissed the suit
which had been decreed by the courts below, the plaintiff/appellants
have filed the present appeal (now represented through L.Rs.).
Since the dispute is between the members of the family it would
be useful to refer to genealogy of the family, which is as under:
ANGAPPA GOUNDER
DIED 1904
(When Malaya Gounder was 10 years old)
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Malaya Gounder Marappa Gounder
Plaintiff (Died on 23.6.1983) (Died in
1923)
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Ramayee Ammal (wife) Nachayyee Ammal
(Died on 2.1.1979) (Died in 1925)
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(son) (daughter) (daughter) (daughter) |
Muthusamy Valliammal Ammaniammal Angayammal |
(died in 1943) (Died in 1940) Married to Married to |
(Issueless) married Karuppana V.A.Kalappa |
| Chinnasamy Gounder Gounder |
| Gounder (Defendant) (Defendant) |
| (died on 18.7.1982) (daughter)
| | Amman
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iammal
Valliammal, wife | (died on 2
2.11.2001)
(Appellant) | Married to
(died on 10.8.2001) | Chinnamalai Gounder
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(Appellant )
| | (now decease
d -
Subramanian Samiathal through Lrs.)
(Defendant) (Defendant) |
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Ponnammal P.C.Palanisamy P.C.Kandasamy
(Appellant) (Appellant) (Appellant)
Original plaintiff Malaya Gounder died after the disposal of the
first appeal. Respondents who filed the appeal in the High Court
impleaded Ammaniammal daughter of the brother of the original
plaintiff and Valliammal, daughter-in-law, wife of the pre-deceased
son Muthusamy as the legal representatives of Malaya Gounder on
the basis of an alleged will executed by him in their favour.
Valliammal died intestate without any issue during the pendency of
the appeal in this Court on 10.8.2001 and after her death her share
has devolved on the defendants/respondents being the nearest
collateral. Ammaniammal also died on 22.11.2001 and is now
represented through her children.
The land measuring 10.37 \0261/2 acres (suit land) belonged to
Malaya Gounder, plaintiff and his younger brother, Marappa
Gounder. Marappa Gounder stood guarantee for his Uncle
Chinnamalai Gounder in a loan transaction advance by one
Samasundaram Chettiar who was a money-lender for a sum of Rs.
200/-. Samasundaram Chettiar filed a suit being OS No. 338 of 1925
against Chinnamalai Gounder as well as the guarantor. Marappa
Gounder died in the year 1923 and was succeeded to by his brother
Malaya Gounder, as the legal representative of Marappa Gounder.
Suit was decreed against the debtor as well as the guarantor. They
were made jointly liable. Suit land was sold on 1.8.1927 in the
auction to satisfy the decree passed in OS No. 338 of 1925. Land
was purchased by one Chockalingam Chettiar. Chockalingam
Chettiar could not get physical possession of the land, however, he
was given the symbolical possession.
The suit land was purchased by Ramayee Ammal wife of
Malaya Gounder, original Plaintiff, for a consideration of Rs. 500/- on
5.12.1933. Ramayee Ammal executed a registered will in favour of
her daughters the defendants/respondents herein. Ramayee Ammal
died on 2.1.1979.
Malaya Gounder, after the death of his wife filed the present
suit for declaration and permanent injunction against his daughters
with the averments that long after the auction sale the plaintiff
Malaya Gounder approached Pattayakkaarar, who was kind enough
to pay a sum of Rs. 500/- to Chockalingam Chettiar in full and final
settlement of the decreetal debt in O.S. No. 388 of 1925.
Chockalingam Chettiar in turn sold the suit land which he had
purchased in court auction in favour of Ramayee Ammal, wife of the
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plaintiff on 5.12.1933. The sale consideration for the same was paid
through Ramiah Pillai, the Secretary of Pattayakkaarar. It was
alleged that he got the sale deed executed in favour of his wife as a
benami as he thought it would not be safe for him to get the sale
deed executed in his name as some creditors of Marappa Gounder
may not create a problem in future. It was further averred that the
property was all along in his possession and that he continued to
encumber the property as its owner. He mortgaged the same to co-
operative society. He treated the property to be ancestral. Even a
partition had taken place between the plaintiff and his co-sharers. In
these documents, the suit land was treated as an ancestral property
and his wife neither objected to the partition nor claimed any share in
it. That his wife knew that she was only a name-lender, and did not
claim the property to be hers. Original Plaintiff Malaya Gounder’s son
Muthusamy died issueless and his wife Valliammal was also residing
with him. After the death of Ramayee Ammal on 2.1.1979 the
daughters started claiming right over the property and tried to
trespass into the same. Plaintiff resisted their action and neighbours
intervened and supported his claim. Suit was filed to establish his
title over the suit land and to get an injunction restraining the
defendants from disturbing his peaceful possession.
In the written statement filed by the defendants/respondents the
claim of the original plaintiff over the suit land was disputed.
According to them, plaintiff was not the owner of the suit land. After
the court sale, Ramayee Ammal being the vendee from auction
purchase became the absolute owner. She executed a will and
bequeathed the suit land in their favour. The case put forth by the
plaintiff that the property was purchased in the name of Ramayee
Ammal as benami on his behalf to safeguard the same from some
other creditors of Marappa Gupunder was denied. According to
them, the brothers of Ramayee Ammal who were well to do provided
money and helped her in acquiring the suit land. Regarding the
mortgage and the partition effected by the plaintiff it was averred that
the same were fraudulent transactions without the knowledge of the
real owner. If Ramayee Ammal was not the real owner, she would
not have executed the registered will in their favour on 28.1.1974.
Accordingly, it was prayed that the suit be dismissed.
Trial Court after taking into consideration evidence both oral
and documentary into consideration decreed the suit and held that
Ramayee Ammal was holding the property benami on behalf of the
Malaya Gounder, the original plaintiff. It was also held that the
property continued to be in possession of the Malaya Gounder in
spite of court sale and he alone was dealing with the same as the
owner. Trial Court held that the plaintiff had purchased the property
in the name of his wife Ramayee Ammal apprehending that other
creditors of Marappa Gounder might move against the plaintiff as he
was the legal representative of his brothers. Judgment and decree
of the trial Court was confirmed in the appeal by the first Appellate
Court.
After the decision of the first Appellate Court original plaintiff
Malaya Gounder died and the defendants/respondents filed the
appeal in the High Court impleading Ammaniammal (brother’s
daughter) and Valliammal (daughter-in-law) as his legal
representatives on the basis of the alleged will executed by him in
their favour. Substantial question of law framed in the second appeal
was:
"Whether the courts below have wrongly cast
the onus of proving the benami nature of the
sale on the defendants and further more
whether they have failed to apply the various
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tests laid down by the Supreme Court for
determination of the question whether the sale
in favour of Ramayee was a benami
transaction?"
The High Court set aside the findings recorded by the courts
below and held that the plaintiff had failed to prove that he had
purchased the property in the name of his wife as a benami. He
failed to prove that he had provided the money for the purchase of
the suit land in the name of his wife. He had also failed to prove that
Pattayakkaarar provided the money for the purchase of the suit land
in the name of his wife on his behalf or that he had repaid the money
later to Pattayakkaarar. Considering all these circumstances, the
High Court came to the conclusion that the trial court and the first
Appellate Court misconceived and misconstrued the evidence and
committed grave error in decreeing the suit. The findings recorded by
the courts below were set aside being perverse and not sustainable
in law.
Counsel of the parties have been heard at length.
There is a presumption in law that the person who purchases
the property is the owner of the same. This presumption can be
displaced by successfully pleading and proving that the document
was taken benami in the name of another person from some reason,
and the person whose name appears in the document is not the real
owner, but only a benami. Heavy burden lies on the person who
pleads that the recorded owner is a benami-holder.
This Court in a number of judgments has held that it is well-
established that burden of proving that a particular sale is benami lies
on the person who alleges the transaction to be a benami. The
essence of a benami transaction is the intention of the party or parties
concerned and often, 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. Referred to
Jaydayal Poddar Vs. Bibi Hazra, 1974 (1) SCC 3; Krishnanand
Vs. State of Madhya Pradesh, 1977 (1) SCC 816; Thakur Bhim
Singh Vs. Thakur Kan Singh, 1980 (3) SCC 72; His Highness
Maharaja Pratap Singh Vs. Her Highness Maharani Sarojini Devi
& Ors., 1994 (Supp. (1) SCC 734; and Heirs of Vrajlal J. Ganatra
Vs. Heirs of Parshottam S. Shah, 1996 (4) SCC 490. It has been
held that in the judgments referred to above that the question whether
a particular sale is a benami or not, is largely one of fact, and for
determining the question no absolute formulas or acid test, uniformly
applicable in all situations can be laid. After saying so, this Court spelt
out following six circumstances which can be taken as a guide to
determine the nature of the transaction:
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;
4. the position of the parties and the relationship, if 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."
The above indicia are not exhaustive and their efficacy
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varies according to the facts of each case. Nevertheless, the source
from where the purchase money came and the motive why the
property was purchased benami are by far the most important
tests for determining whether the sale standing in the name of one
person, is in reality for the benefit of another. We would examine the
present transaction on the touchstone of the above two indicia.
Plaintiff’s case was that he had purchased the suit land in the
name of his wife in order to screen the property from the creditors of
his brother. The names of the creditors were not given in the plaint.
The plaintiff averred that one Pattayakkaarar paid consideration for
the purchase of the suit land. The relevant passage from the plaint
as follows:
"Thereafter the plaintiff approached the
Pattakkarar again and he was kind enough to
pay Rs. 500.00 to Chokkalingam Chettiar in
full settlement of the claim. The payment was
made through Ramiah Pillai, the Secretary of
Pattakkarar. In pursuance of the Settlement,
Chokkalingam Chettiar executed a sale deed
on 05.12.1933 with regard to the entire suit
properties reciting therein that he had
received the sale consideration from Ramaiah
Pillai. When taking the sale deed, plaintiff
thought that it will not be safe to have the sale
deed executed in his favour, as some other
creditors of Marappa Gounder might again
give trouble and therefore the sale deed was
taken benami in the name of his wife
Ramayee Ammal."
In law title to the property vests in the person in whose favour
the sale deed has been executed. Therefore Ramayee Ammal was
the absolute owner of the property. By a registered will dated
28.1.1974 she bequeathed the suit land to her daughters
defendants/respondents. The presumption in favour of Ramayee
Ammal could be displaced only if her husband Malaya Gounder, the
original plaintiff, was able to prove that there were circumstances
which warranted the purchase of the property benami in the name of
his wife. The plaintiff, in order to prove that he was the real owner of
the property was required to show that there were valid reasons for
purchase of the property in the name of his wife and that he had paid
the money for the purchase of the land. Plaintiff in his evidence as
PW1 admitted that neither his brother nor he himself had any
creditors in the year 1933 when the land was purchased by his wife
Ramayee Ammal. Therefore, the reason given by him for the
purchase of the land in the name of his wife is not plausible. It also
appears from his deposition that he had some other pieces of land
in another village which were recorded in his name. Names of
prospective creditors have not been disclosed. If there were any
unsatisfied creditors then they would have proceeded against the
plaintiff for the recovery of their money by attachment or sale of the
land held by him in other village. Action took place in 1927. Land
was purchased by Ramayee Ammal in the year 1933. During these
six years no other creditors had come forward to claim any money
against him or his uncle for whom the guarantee was given by his
brother. Debt, if any, would have become time barred. Even after
1933 no creditor came forward with any claim. Marappa Gounder,
brother of the plaintiff died in 1923. The property was sold in
execution of the decree in the year 1927 and the sale deed in favour
of Ramayee Ammal, the wife of the plaintiff was executed in the year
1933. Apprehension of the plaintiff that some other creditors of
Marappa Gounder might proceed against the plaintiff is totally
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unjustified. The case put up by the plaintiff that he purchased the
land in the name of his wife benami does not seem to be plausible.
The plaintiff did not provide any money for the purchase of the
land in the name of his wife. Neither in the plaint nor in his deposition
the plaintiff explained satisfactorily when the money was provided by
a third person. Neither the person who alleged to have paid the
money nor anyone else on his behalf has examined as a witness.
Therefore, it cannot be held that Pattayakkaarar or anyone else paid
the consideration on behalf of the plaintiff. It is not even averred by
the plaintiff that Pattayakkaarar provided money on his behalf or that
he repaid the money to him later.
It is well settled that intention of the parties is essence of the
benami transaction and the money must have bean provided by the
party invoking the doctrine of benami. The evidence shows clearly
that the original plaintiff did not have any justification for purchasing
the property in the name of Ramayee Ammal. The reason given by
him is not at all acceptable. The source of money is not at all
traceable to the plaintiff. No person named in the plaint or anyone
else was examined as a witness. The failure of the plaintiff to
examine the relevant witnesses completely demolishes his case.
Since the original plaintiff failed to prove that he had provided
the money for the purchase of the land and the reasons why he
purchased the property benami in the name of his wife, the High
Court has come to the right conclusion that Ramayee Ammal did not
hold the property as benami on behalf of her husband Malaya
Gounder.
For the reasons stated above, we do not find any merit in this
appeal and dismiss the same with no order as to costs.