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TMI Blog2016 (8) TMI 1516X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 2. The plaintiff, defendants 1 to 6 and deceased Lalitha are the children of the seventh defendant born to Late Surya Narayana Iyer and the suit is one for partition of property. Defendants 8 to 10 are the children and husband of deceased Lalitha and the fifth defendant alone supported the plaintiff in the claim for partition. The plaint '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 rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the property was purchased in the name of the seventh defendant under Exts.A3, A4 and A5 sale deeds by her father and that it belongs to the family. The seventh defendant on the other hand contends that the property was purchased for her benefit only and that the same did not vest in the family. The plaintiff would be entitled to 1/9 shares over item Nos.3, 4, 5 and 6 of the plaint 'A' schedule property only if it is established that it belonged to her father. 5. The plaintiff asserts that the transactions evidenced by Exts.A3, A4 and A5 sale deeds were well before the Act when a purchase by the husband in favour of his wife was prevalent. Reliance is placed on Sura Lakshmiah Chetty and others v. Kothandarama Pillai AIR 1925 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 does not apply in the case of purchase of property by any person in the name of his wife or unmarried daughter and that it c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention that the presumption under Section 3(2) of the Act cannot be called in aid in the case of past transactions. It is their case that Exts.A3, A4 and A5 sale deeds were executed well before the Act came into force and therefore the presumption under Section 3(2) thereof does not apply. The plaintiff asserts that the prohibition of benami transactions under Section 3(1) of the Act is prospective and can apply only to future transactions. The plaintiff urges that Section 3(2) is only an exception to Section 3(1) of the Act and cannot therefore apply to transactions before the Act came into force. The seventh defendant would be entitled to bank on the presumption flowing under Section 3(2) of the Act only if the same applies to past trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... past transactions as well. The application of Section 3(2) of the Act for past transactions takes within its fold the presumption it carries which can be rebutted only by tangible evidence. 8. The presumption can be rebutted by proving that either Surya Narayana Iyer wanted to screen the property from creditors or that he wanted to escape from the land ceiling provisions. Nothing of that sort has even been suggested in evidence and we are totally in the dark as to what prompted Surya Narayana Iyer to purchase the property in the name of his wife. The attempt in evidence was only to show that the seventh defendant had no independent source of income to purchase the property by Exts.A3, A4 and A5 sale deeds. Evidence is let in to show that S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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