TMI Blog2016 (8) TMI 1516X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 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 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. The preliminary decree for partition to the extent it declares that the plaintiff has 1/9 shares over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... '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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue is no longer res integra in view of the clarification of the judgment in Nand Kishore Mehra's case (supra) in Rebti Devi v. Ram Dutt and another AIR 1998 SC 310. The Supreme Court called for the files in Nand 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 in Nand 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 in Rebti Devi's case (supra) also opined that Section 4(1) applied unless of course the case fell within the exceptions stated either in Section 3(2) or in Section 4(3) of the Act. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usband 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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