Home Case Index All Cases Benami Property Benami Property + HC Benami Property - 2021 (10) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (10) TMI 775 - HC - Benami PropertyBenami purchase - real owner - onus to prove - property was the joint family property - Hindu Succession Act - right of daughters in property in partition - whether the title is presumed to vest with the person, in whose name the sale deed stands, and the burden of proof lies heavily on the person who sets up benami plea? - HELD THAT:- The appellants have not filed partition suit or issued notice till the demise of their father. Only after the demise of their father, the partition suit was instituted. The plaintiffs never claimed that the entire property was their absolute property. Their only contention was that the property was the joint family property and they are entitled to a particular share. The Courts below have completely glossed over the material evidence in this case. When Ex.A.1 stands in the name of the late wife, the burden to show that it was purchased benami was only on the person who asserted that it was a benami transaction. The Courts below failed to take note of the fact that the defendants have failed to discharge the burden cast on them. The Courts below glossed over the fact that Ex.A.2 and Ex.A.3 were executed jointly by Sabapathy Iyer and his sons. Recitals in Ex.A.3 that the suit property is a joint family property has also been overlooked. If material evidence is ignored, that vitiates the findings. The Courts below have also failed to apply statutory presumption set out in Section 3(2) of the Benami Transactions (Prohibition) Act, 1988 - no hesitation to set aside the impugned judgment and decree and answer the substantial question of law in favour of the appellants. Certain subsequent developments will have to be taken note of. Even according to the plaintiffs, the property in question was a joint family property. They concede that Sabapathy Iyer had a share in the suit property. When the suit was instituted, only sons could have been a part of the co-parcenery. In view of the amendment to Section 6 of the Hindu Succession Act vide Central Act 39 of 2005, as interpreted by the Hon'ble Supreme Court in Vineeta Sharma Vs. Rakesh Sharma [2020 (8) TMI 571 - SUPREME COURT] the daughters also will be entitled to equal share in the property. In that event, the share of Sabapathy Iyer was reduced to 1/7th share in the suit property. There is no dispute that Sabapathy Iyer had executed a Will in favour of defendants 2 to 4. The said Will had also been duly proved by the defendants in the manner known to law. No serious argument was advanced before me impeaching the said finding. Thus confirm the finding of the Courts below that Ex.B.21 had been duly proved. 1/7th share of Sabapathy Iyer would devolve on defendants 2 to 4. Thus the plaintiffs as well as the fifth defendant Chandra Bai will be entitled to 6/63rd share each. Defendants 6 and 7 also will be entitled to 6/63rd share each. Defendants 2 to 4 will be entitled to 6/63rd share each and also will be entitled to Sabapathy Iyer's 1/7th share.
|