2023 (7) TMI 117 - MADRAS HIGH COURT

Benami transaction - Title over property - Whether the suit property was purchased by the elder brother (deceased) in the name of the plaintiff (Brother) as benami? - trial Court dismissed the suit on the ground that the plaintiff has not proved his income to purchase the suit property - property had been purchased in favour of other coparcener by another coparcener and the defendants are also perfected title by adverse possession and non suited plaintiff by dismissing the suit - HELD THAT:- The plaintiff in his evidence clearly spoken that since Subramanian was the eldest brother of the family and residing in the suit property, the invitation was printed in the name of the husband of the first defendant and house warming ceremony was performed in his name and the same cannot be a ground to hold that the entire benami transaction is proved.

The plaintiff also clearly explained how the custody of the original documents came to his brother. The specific case of the plaintiff is that during the proceedings before the planning authorities, the first defendant's husband required all the original documents. Therefore, the plaintiff had handed over all the original documents of the property to his brother Subramanian. The very fact that the first defendant's husband had appeared in that proceedings as a Lawyer and he had not claimed any right or shown any animus or hostile intention at the relevant point of time to hold that the suit property is his absolute property. The explanation given by the plaintiff with regard to the custody of the original documents is more probable. If really the plaintiff is not having any right over the property what was the necessity for the first defendant to send Ex.A8 postal card to her uncle. Therefore, the contention of the defendants the suit property was all along treated as absolute property of Subramanian cannot be countenanced.

The defendants had not established the source for the purchase of the property by the first defendant's husband. The fact that how the custody of the documents came to the hands of the first defendant's husband was also clearly established by the plaintiff. Subramanian was in fiduciary relationship with his younger brother, since he is the eldest brother of the family and also he is a Lawyer by profession. Therefore, keeping the documents in his custody particularly, when he had prosecuted certain matters before the authorities on behalf of the plaintiff is quite possible.

As far as the motive is concerned, the very motive for benami transaction is to defeat the rights of the first wife. Even such motive is true, the first defendant's husband kept silent even after his first wife relinquished her right in the year 1971 and he had not asserted his right independently as a owner. Whereas, he stood only as an agent of the plaintiff. Therefore, the plea of benami transaction has to fail.

Merely because the defendants are in possession of the suit property and paying the house tax in their name, that will not be sufficient to prove the benami transaction. Admittedly, the first defendant was a practicing Lawyer and he was inducted into the suit property and he was residing there. Hence, it is normal for him to pay house tax and water tax and keeping the receipts with him. Therefore, merely on the basis of production of these receipts by the defendants, it cannot be concluded that the entire transaction is benami transaction.

As also urged before this Court that the plaintiff had not established the so called pro-note, under which he had borrowed the amount to pay the advance amount. When Ex.B1, sale deed was perused, it makes it clear that only the plaintiff had paid the entire sale consideration. To establish the contention of the defendants that the plaintiff has no income to pay the sale consideration, one of the attesting witnesses was alive even during trial, but the defendants had not even taken any steps to examine him. Similarly, the vendor of the suit property was also not examined.

This Court is of the view that the finding of the trial Court that the defendants perfected title by adverse possession is also not correct. In order to prove the plea of adverse possession, hostile intention and animus on the part of the defendant's husband has to be established. When Subramanian himself has not shown any animus and hostile intention to hold that the suit property is his absolute property, the plea of adverse possession has to necessarily fail. Though various judgments have been placed by the learned counsel for the defendants with regard to his contentions, the fact remains that the above judgments are not applicable to the facts of the present case. The plea of benami transaction has not been established by the defendants.

Accordingly, all the points are answered. The judgment of the trial Court is set aside and the suit is decreed for declaration and recovery of possession and also the accounts as prayed for.