Meenakshi Ammal Vs. S. Vijayalekshmi [Kerala High Court, 16-08-2016]

IN THE HIGH COURT OF KERALA AT ERNAKULAM

V.CHITAMBARESH & K.HARILAL, JJ.

A.S.No.677 of 1999 & Cross Objection

Dated this the 16th day of August, 2016

AGAINST THE DECREE IN OS 68/1997 of I ADDL.SUB COURT,ERNAKULAM DATED 22-12-1998

APPELLANT(S): 7 th DEFENDANT

MEENAKSHI AMMAL AND OTHERS

BY ADVS.SRI.T.KRISHNAN UNNI (SR.) SRI.M.GOPIKRISHNAN NAMBIAR

RESPONDENT(S)/PLAINTIFF/DEFENDANTS 1 TO 6 & 8 TO 10

S. VIJAYALEKSHMI AND OTHERS

R. R1 BY ADV. SRI.R.D.SHENOY, (SR) R,R1 BY ADV. SRI.S.VINOD BHAT R1 BY ADV. SRI.LEGITH T.KOTTAKKAL R, BY ADV. SRI.K.L.NARASIMHAN R,R2 BY ADV. SRI.G.GOPAKUMAR (TVM) R,R6 BY ADV. SRI.BABU CHERUKARA R,R6 BY ADV. SRI.P.V.PRAKASAN R,R6 BY ADV. SRI.ANZAR BASHEER R,R6 BY ADV. SRI.P.ANTO THOMAS R7 BY ADV. SRI.P.SATHISAN

J U D G M E N T

Chitambaresh, J.

The claim of a daughter for her legitimate share in the family property is being stoutly resisted by her brothers aided by their mother for the past about two decades. The presumption under

Section 3(2) of the Benami Transactions (Prohibition) Act, 1988

[‘the Act’ for short] arises for consideration in this Appeal Suit. The parties are referred to in accordance with their rank in the court below since many of them died pending Appeal Suit and their legal heirs brought on record.

2. The plaintiff, defendants 1 to 6 and deceased Lalitha are the children of the seventh defendant born to Late Surya Narayana Iyer and the suit is one for partition of property. Defendants 8 to 10 are the children and husband of deceased Lalitha and the fifth defendant alone supported the plaintiff in the claim for partition. The plaint ‘A’ schedule property is six items of immovable property and the plaint ‘B’ schedule property are the movables including the jewellery, car and vessels. The court below has by the judgment impugned passed a preliminary decree for partition in regard to all the six items of the plaint ‘A’ schedule property. The court below has also passed a preliminary decree for partition in regard to item Nos.1 to 3 of the plaint ‘B’ schedule property which are jewellery and a car. The plaintiff has in addition been found entitled to her share of mesne profits from the property as also the value of the trees cut and sold by defendants 1, 2 and 5 to 7. The seventh defendant has filed the Appeal Suit contending that item Nos.3, 4, 5 and 6 of the plaint ‘A’ schedule property belong to her absolutely. The first defendant who runs a cinema talkies in item No. 5 of the plaint ‘A’ schedule property has filed a memorandum of cross objections assailing the preliminary decree.

3. We heard Mr.T.Krishnan Unni, Senior Advocate on behalf of the appellant. Mr.R.D.Shenoy, Senior Advocate on behalf of the first respondent and Mr.Babu Cherukara, Advocate on behalf of the sixth respondent.

4. There is no dispute as regards the partibility of item Nos.1 and 2 of the plaint ‘A’ schedule property covered by Exts.A1 and A2 sale deeds in favour of Surya Narayana Iyer. The plaintiff as the daughter of Surya Narayana Iyer is entitled to 1/9 shares over the same and the decree for partition granted in that regard is unassailable. There is a however a serious dispute as regards the partibility of item Nos.3, 4, 5 and 6 of the plaint ‘A’ schedule property covered by Exts.A3, A4 and A5 sale deeds. The sale deeds were executed in favour of the seventh defendant in the years 1963, 1971 and 1973 before the Act came into force. The plaintiff contends that the property was purchased in the name of the seventh defendant under Exts.A3, A4 and A5 sale deeds by her father and that it belongs to the family. The seventh defendant on the other hand contends that the property was purchased for her benefit only and that the same did not vest in the family. The plaintiff would be entitled to 1/9 shares over item Nos.3, 4, 5 and 6 of the plaint ‘A’ schedule property only if it is established that it belonged to her father.

5. The plaintiff asserts that the transactions A.S.No.677/1999 4 evidenced by Exts.A3, A4 and A5 sale deeds were well before the Act when a purchase by the husband in favour of his wife was prevalent. Reliance is placed on

Sura Lakshmiah Chetty and others v. Kothandarama Pillai, AIR 1925 Privy Council 181

wherein Lord Sir John Edge speaking for the Bench observed as follows:-

“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.”

The plea of the plaintiff is that the beneficial interest in the property covered by Exts.A3, A4 and A5 sale deeds is in her father although the ostensible title is with the seventh defendant. The fifth defendant supported the plea of benami and relied on the following observations in

Valliammal v. Subramanian and others, AIR 2004 SC 4187

“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.”

6. The seventh defendant maintains that the property was purchased for her benefit only and that the presumption to that effect would operate unless the contrary is proved. The seventh defendant adds that the presumption has not been rebutted by the plaintiff to establish that the beneficial interest in the property is in her father only. The seventh defendant wants the plaintiff to be non suited in regard to item Nos.3, 4, 5 and 6 of the plaint ‘A’ schedule property on the basis of Section 3(2) of the Act. The relevant part of Section 3 of the Act which deals with the prohibition of benami transactions is extracted hereunder for easy reference:-

3. Prohibition of benami transactions

(1) No person shall enter into any benami transaction.

(2) Nothing in sub-section (1) shall apply to-

(a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter;”

Thus the prohibition of benami transactions does not apply in the case of purchase of property by any person in the name of his wife or unmarried daughter and that it carries a presumption. The statutory presumption is that the said property had been purchased for the benefit of the wife or the unmarried daughter unless the contrary is proved. The presumption is however rebuttable by those who contend that the sale standing in the name of one person is in reality for the benefit of the other. The presumption under Section 3(2) of the Act in favour of the person who holds ostensible title has been explained in

Nand Kishore Mehra v. Sushila Mehra, AIR 1995 SC 2145

as follows:-

“6……… 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 on 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.”

It is open to the plaintiff and the fifth defendant to rebut the statutory presumption by adducing tangible evidence that the property had not been purchased for the benefit of the seventh defendant.

7. The plaintiff and the fifth defendant have a further contention that the presumption under Section 3(2) of the Act cannot be called in aid in the case of past transactions. It is their case that Exts.A3, A4 and A5 sale deeds were executed well before the Act came into force and therefore the presumption under Section 3(2) thereof does not apply. The plaintiff asserts that the prohibition of benami transactions under Section 3(1) of the Act is prospective and can apply only to future transactions. The plaintiff urges that Section 3(2) is only an exception to Section 3(1) of the Act and cannot therefore apply to transctions before the Act came into force. The seventh defendant would be entitled to bank on the presumption flowing under Section 3(2) of the Act only if the same applies to past transactions also. The issue is no longer res integra in view of the clarification of the judgment inNand Kishore Mehra‘s case (supra) in

Rebti Devi v. Ram Dutt and another, AIR 1998 SC 310

The Supreme Court called for the files inNand Kishore Mehra‘s case to find that the transaction impugned was a sale on 24.4.1964 before the Act came into force. The Supreme Court noticed that the suit inNand Kishore Mehra‘s case was directed to be disposed of applying the presumption under Section 3(2) of the Act. The Supreme Court held that the presumption under Section 3(2) of the Act is to be mandatorily drawn which ofcourse can be rebutted. The Supreme Court added two more principles to the dictum laid down in

R. Rajagopala Reddy v. Padmini Chandrasekharan, (1995) 2 SCC 630

and concluded as follows:-

“Section 3(2) is enacted as an exception to the provisions in the Act and does not depend for its interpretation on the question as to whether what extent Sections 4(1) and 4(2) are retrospective.”

The Supreme Court inRebti Devi‘s case (supra) also opined that Section 4(1) applied unless ofcourse the case fell within the exceptions stated either in Section 3(2) or in Section 4(3) of the Act. It is clear therefore that Section 3(2) is not an exception to Section 3(1) but an exception to the provisions in the Act itself. The plaintiff can enforce the claim for partition notwithstanding Section 4(1) only because the case falls within Section 3(2) of the Act which applies to past transactions as well. The application of Section 3(2) of the Act for past transactions takes within its fold the presumption it carries which can be rebutted only by tangible evidence.

8. The presumption can be rebutted by proving that either Surya Narayana Iyer wanted to screen the property from creditors or that he wanted to escape from the land ceiling provisions. Nothing of that sort has even been suggested in evidence and we are totally in the dark as to what prompted Surya Narayana Iyer to purchase the property in the name of his wife. The attempt in evidence was only to show that the seventh defendant had no independent source of income to purchase the property by Exts.A3, A4 and A5 sale deeds. Evidence is let in to show that Surya Narayana Iyer was a Contractor by profession and a bus operator whereas the seventh defendant was only a home maker with no independent source of income. We hasten to add that the source of income to meet the sale consideration is irrelevant in the context of the presumption flowing under Section 3(2) of the Act. It is natural for a person to purchase the property in the name of his wife intended for her benefit which has gained statutory recognition under Section 3(2) of the Act.

9. The only reason stated by the court below to hold that Exts.A3, A4 and A5 sale deeds were not intended for the benefit of the seventh defendant is the enjoyment of income by others also. The court below has in this context observed as follows:-

“As noted earlier, there is a contention that even if it is assumed that the properties were purchased by Surya Narayana Iyer, the purchase was for the benefit of the seventh defendant and so she alone is entitled to the properties. The defendants have a case that those properties were in the exclusive possession and enjoyment of the seventh defendant . In the cross examination, she was asked whether it was her husband who was taking income from the properties till his death. In reply, she said that he alone was not taking income. But she did not say who else was also taking income. Thus she has admitted that her husband was taking income from the properties. The contention that properties were in the exclusive possession and enjoyment of the seventh defendant (DW.1) is not true. This indicates that the purchase was not for the benefit of the seventh defendant. “

The mere fact that the husband was also taking income from the property covered by Exts.A3, A4 and A5 sale deeds does not conclude that the said acquisition was not intended for the benefit of his wife. It is normal for a husband to take the income from the property of his wife and vice versa and nothing more can be attributed to such course of conduct. The sharing of income is insufficient to rebut the statutory presumption which is heavily loaded in favour of the ostensible title holder. We have no hesitation to hold that item Nos.3, 4, 5 and 6 of the plaint ‘A’ schedule property belongs absolutely to the seventh defendant under Exts.A3, A4 and A5 sale deeds.

10. The preliminary decree for partition to the extent it declares that the plaintiff has 1/9 shares over item Nos.3, 4, 5 and 6 of the plaint ‘A’ schedule property is hereby set aside. The preliminary decree for partition in respect of item Nos.1 and 2 of the plaint ‘A’ schedule property and item Nos.1 to 3 of the plaint ‘B’ schedule property is confirmed. (No arguments were addressed before us as regards the correctness or otherwise of the decree granted in relation to the plaint ‘B’ schedule property). Some of the parties including the seventh defendant have died pending Appeal Suit and their legal heirs have already been brought on record. The parties are at variance as to whether the seventh defendant has executed a registered Will dated 14.9.1994 bequeathing her property in favour of her sons. The genuineness of the Will can be considered in the final decree proceedings dependent on which the share of the seventh defendant can be allotted. The plaintiff will get 1/9 shares over item Nos.3, 4, 5 and 6 of the plaint ‘A’ schedule property only if the Will is disbelieved and otherwise her share is confined to the items mentioned above. There is no necessity to pass a supplementary preliminary decree dependent on the finding on the Will as more than 19 years have elapsed since the filing of the suit for partition. It would suffice if the court below passes a composite supplementary preliminary decree and a final decree on a motion made by any of the parties to this Appeal Suit.

The Appeal Suit and the memorandum of Cross Objections are allowed to the extent indicated above. The parties will bear their respective costs.

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