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2023 (4) TMI 977 - HC - Benami PropertyBenami Transaction or not - properties purchased by the father in the name of mother - Plaintiff contended that, her mother was only a benami for her father, and that she did not have any right in her to execute Exts.P3 and P8 settlement deeds. - suit is laid for partition of three items of properties which are described in Schedules A to C in the plaint and plaintiff also seeks a declaration that the two settlement deeds that her mother had executed pertaining to Schedule A and Schedule B items of properties are null and void - HELD THAT:- The person in whose name stamp papers were purchased, more so when they are spouses, can never be considered as a strong piece of evidence to compel an inference conclusively the intent behind a purchase. This Court considers that it is far too inadequate to prove benami. The evidence as has been made available does not preponderate a possibility that the properties purchased under Ext. D-1= Ext.P.17 and Ext.D-2 = Ext.P.18 in the name of Rajeswari Bai are not held benami by her for her husband Bapanna Rao, but on the contrary they suggest that they are the personal properties of Rajeswari Bai. Issue No:1 is therefore, decided against the plaintiff. Consequently, there is no need to consider the Additional Issue on the tenability of pleading benami in the face of statutory bar under the Benami Transaction (Prohibition) Act, 1988 or its current version. Validity of settlement deed - exclusion of plaintiff - mental status of Monther for execution of deed - right of the plaintiff over property under the schedule A category - HELD THAT: - It is true that the plaintiff too has not examined herself. But non-examination of the first defendant is critical since she alone could provide the facts pertaining to the mental status of Rajeswari Bai at the time of Exts.P.3 and P.8, more so when the mental state of the 2nd defendant is suspect. They at least could have examined any physician who had treated Rajeswari Bai with supporting medical records but that was ignored. This Court now has little option than to hold that Rajeswari Bai would not have been in sound mental state sufficient enough to understand what she was doing and that Exts.P.3 and P.8 are not the product of her free will. Issues 3, 5 and 6 are decided accordingly. It may have to be stated that the basic theory which the defendants plead for justifying the execution of settlement deeds is not without any merit. After all, the first defendant has been caring both her ailing mother and brother besides caring her nephews, and given the circumstances, it would be only natural for Rajeswari Bai to execute the settlement deeds in their favour, but the point is not about the availability of circumstances for justifying the exclusion of plaintiff and her branch from the settlement deeds, but it is about her mental capacity to execute them. Here the defendants are seen wanting in their efforts when they chose to withhold the first defendant from being examined as a witness. It has come on record that in the 'A' schedule property, the defendants have put up a substantial structure at considerable expenses. Therefore, they must have a fair chance of retaining the same by adjusting the equities vis-a-vis their shares in other two schedules of properties. However, they may have to wait for another day when final decree is passed. Order: Ext.P3 settlement deed executed by Rajeswari Bai are set aside as null and void and Plaintiff's 1/3 share in all the schedules of suit properties are hereby declared.
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