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2021 (6) TMI 552 - HC - Benami PropertyBenami transaction - real owner of the property - continuation of the joint Hindu family - Whether items No. 1 of the plaint 'A' schedule was purchased by the deceased 1st appellant in the name of the 1st respondent benami and if the claim so set up by the appellants in respect of this property is hit by the provisions of the Prohibition of Benami Property Transactions Act, 1988? - HELD THAT:- A suit or claim or action basing on a plea of benami in respect of its subject matter shall not lie against the person who claims being the real owner of this property. The 1st respondent is the owner, who purchased this property in terms of Ex. A1 and Ex. A2 title deeds. It should be noted that execution of Ex. A1 and Ex. A2 sale deeds by the erstwhile owners is not disputed and the fact that they stand in the name of the 1st respondent. The prohibition envisaged in terms of Section 4(1) of the Act is absolute and imperative in its effect. There is a different version in the written statement of the 1st respondent that, when there was a notice issued by Registration Department after registration of these sale deeds, when he sought an advice from his father, these sale deeds were retained by him. Nonetheless, these circumstances are indicative of the fact that these brothers were given to keeping these records with their father and in his custody. Further to note in this context is that they were all living and staying in the same premises during that time. Therefore, there is nothing unusual either for the 1st respondent or the 2nd appellant to hand over these title deeds or documents to their father. Even otherwise, participation of the 1st appellant in bargaining to acquire this house or the site, which the 2nd appellant purchased from the very same vendors, cannot be an unusual factor. When the burden is on the appellants to establish the nature of these sale transactions of such tainted nature to call the 1st respondent an ostensible owner, who held them benami for the joint family, it is for them to place cogent and convincing material of acceptable nature. The material on record indicates that the appellants failed to discharge this burden in terms of Section 104 of the Evidence Act. In these circumstances, any deficiency in the evidence of the 1st respondent is not a factor by itself, to assist them. Trial Judge held that the 1st respondent failed to produce satisfactory evidence to show that he himself has contributed funds to purchase this house. When Ex. A1 and Ex. A2 themselves are the title deeds by which the 1st respondent had acquired this house as per their recitals, they bear a presumption in his favour. This presumption is not discharged by the evidence adduced by the appellants. Failure of the 1st respondent to examine any of the attestors or scribe to these sale deeds as pointed out by the learned trial Judge, is not sufficient to accept the version of the appellants. In fact, it was for the appellants to have had examined them to support their contention that the funds had flown from the 1st appellant to acquire this property, to prove and demonstrate that he had taken active role in those circumstances including at the time of registration of the documents. One of the contentions of the appellants is that Ex. A1 and Ex. A2 sale deeds were obtained in the name of the 1st respondent on account of an astrologer's advice. This reason is obviously false. If contents of Ex. X1 Will and testimony of the 2nd appellant as P.W. 2 are considered for argument sake, it is clear that it was with a view and intention to get over and avoid any difficulty or liability in terms of Income Tax Act, these sale deeds were obtained in the name of the 1st respondent. Thus, one of the strong circumstances sought to rely on by the appellants and to explain the purpose behind in obtaining Ex. A1 and Ex. A2 in the name of the 1st appellant, falls to ground on their own showing. One of the contentions advanced in this appeal for the appellants is that there is sufficient proof of continuation of the joint Hindu family of these parties and retention of certain property for the benefit of this joint family is a strong indicator. There is nothing on record to indicate that this erstwhile joint Hindu family continued and leaving aside certain properties was for common benefit and enjoyment. Apparently, items 2 and 3 of the plaint 'A' schedule were retained where the firewood business was continuing even when the 1st appellant was attending to it, after the partition in the year 1979. Beneficial enjoyment of certain items of the property of the erstwhile joint Hindu family after partition and division in status, mind and kind, cannot clothe the entire set up to call an unity in right, possession and enjoyment, as joint tenants. On twin grounds that the suit as such could not have been maintained in respect of item 1 of the plaint 'A' schedule viz., on the ground of benami set up by the appellants and on another ground that the evidence adduced by them at the trial is not sufficient to support their stand in respect of this house qua the 1st respondent, all the contentions of the appellants should be rejected. Findings of the learned trial Judge in this context with reference to application of Section 4(1) of the Prohibition of Benami Property Transactions Act, 1988 should be upheld and that item No. 1 of the plaint 'A' schedule thus be held that it is the property of the 1st appellant, who has right, title and interest to it by virtue of Ex. A1 and Ex. A2 sale deeds. Thus, this point is answered. Whether Ex. A24 Will is true, valid and binding on the respondents? - 1st appellant died during pendency of the suit - HELD THAT:- While considering issue No. 2 and additional issues 1 and 2 framed on 15.03.1996 and issues 1 and 2 framed on 20.02.1997 the learned trial Judge accepted this Will. The entire process of acceptance of Ex. X1 by the learned trial Judge is bereft of any reasons. The requirements of law as discussed above in the context of application of Section 68 of the Evidence Act and Section 63 of the Indian Succession Act, more importantly to dispel such serious suspicious circumstances surrounding execution of Ex. X1, were not at all considered or discussed. The learned trial Judge jumped to the conclusion that it was executed by the deceased 1st appellant in a sound and disposing state of mind basing on the evidence of P.W. 3 alone. Therefore, the findings so recorded on these issues in Para-81 of the Judgment of the trial Court require interference holding that the appellants failed to establish and prove the original of Ex. X1-Will. Therefore, the testamentary disposition of the property claimed by the appellants, as if by the deceased 1st appellant cannot stand. Consequently, it has to be held that there is no proof offered by the appellants that the original of Ex. X1 Will is true or valid nor it binds the respondents 1 to 4. Therefore, the cross-objections of the 1st respondent stand accepted. Whether the plaint 'A' and 'B' schedule properties are amenable for partition among the appellants 1 and 2 and respondents 1 and 2? - HELD THAT:- There is no reference to these two items in Ex. A11 legal notice issued by the 1st and 2nd appellants to the 1st respondent claiming that they are the properties of the then joint family. It is an undisputed fact that prior to the partition of 1979 all other movable properties of the family were divided among all the members of this erstwhile joint family. Either acquisition or retention of these two items was never an issue among these parties and of their enjoyment later. The material on record also established that these two items were always enjoyed by the 1st respondent himself. Considering the reasons assigned by the learned trial Judge and on re-appraisal of the evidence on record, these findings have to be confirmed. Thus, these two items in plaint 'B' schedule and item 1 of the plaint 'A' schedule are not available or amenable for partition among the appellants and the respondents. Thus, this point is answered. Whether the judgment and decree of the trial Court are proper and if require interference? - HELD THAT:- As a consequence, the ultimate relief granted by the learned trial Judge in substance, did not get altered since preliminary decree passed is confined only with reference to items 2 and 3 of plaint 'A' schedule. The findings relating to devolvement or distribution of 1/4th share allottable to the deceased 1st appellant, gets altered. In the sense in terms of Section 6 of the Hindu Succession Act prior to amendment in the year 2005, 1/4th share of the 1st appellant in items 2 and 3 of the plaint 'A' schedule shall be divided among the 1st appellant, the 2nd appellant, 1st respondent and 2nd respondent notionally. Since the 2nd appellant and 2nd respondent are no more, their respective legal heirs are entitled to the share allottable to them in respective proportions. Therefore, items 1 and 2 of plaint 'A' schedule be divided into three (03) equal shares and the 1st respondent is entitled for one such share, legal heirs of the 2nd appellant viz., the appellants 3 and 4 and respondents 7 and 8 are entitled for one such share and whereas the legal heirs of the 2nd respondent are entitled for one such share. Accordingly, there shall be modification of the preliminary decree granted by the trial Court. Appeal is dismissed and cross objections are allowed. Consequently, the preliminary decree passed by the trial Court is modified as follows: (1) items 2 and 3 of the plaint 'A' schedule shall be divided into three (03) equal shares. One such share shall be allotted to the 1st respondent and whereas one such share shall be allotted to the legal heirs of the 2nd appellant viz., the appellants 3,4 and respondents 7 and 8 together. Similarly, legal heirs of the 2nd respondent including respondents 4 and 5 are entitled for one such share. (2) The decree and judgment of the trial Court in respect of item 1 of plaint 'A' schedule and items 1 and 2 of plaint 'B' schedule stand confirmed. (3) The parties including all the legal heirs whether on record or not of the deceased 2nd appellant and 2nd respondent are at liberty to file separate applications for passing of final decree in terms of this preliminary decree. (4) In the circumstances, the parties are directed to bear their own costs throughout
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