TMI Blog1992 (2) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... possessed no property for any further discharge of the credits, and the learned Judge ordered as follows: The insolvent has paid his creditors 0.50 P. in a rupee and he had not concealed anything from the Official Assignee or secreted any assets. In the circumstances, this is a fit case where an order of discharge will have to be made in favour of the insolvent. The creditor who had moved an application under Section 8 of the Act for a review of the order declaring Natarajan, the insolvent, and whose application had been dismissed saying that the question would be taken up only at a stage when it was decided to discharge the insolvent of any liabilities however, felt aggrieved, and thus preferred the instant appeals. 2. The only property, however, with respect to which the entire dispute related is the property mentioned in the petition of the Official Assignee. It is not in dispute that the title deed of the said property is in the name of (sic) Kamalammal and that the insolvent is one of the five sons of Kannammal. The case of the Official Assignee before the learned single Judges as well as that of the creditor - appellant before us is that although the title deed stood ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property stands in the name of Kannammal and that she had been paying the property tax. There is no evidence to show that Vedachala Naicker or his sons paid the property tax for the petition mentioned property at any time. Hence it cannot be said that Vedachala Naicker or his sons had been in possession of the property. No doubt, R.W.I has stated that two of her sons had been permitted to reside in portions of the petition mentioned property. The possession of the suit property by her two sons can only be said to be permissive occupation which cannot give any right in the property to the sons. He has also said: There is no evidence let in on behalf of the Official Assignee regarding any motive which might have prompted the 'benami' transaction. On the other hand, R.W.I had given evidence that she had purchased the property as per Exts.R-1 to R-3 with her own funds and that neither her husband nor her sons had any manner of right at any time in the said property. He has further said: It is seen that R.W.l had mortgaged the property with the Oriental Benefit Fund and she deposited the title deeds with them. There is no evidence to show that the original ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enumerated under it. Section 92 excludes evidence as to oral agreement which will have the effect of contradicting, varying, adding to, or subtracting from, the terms of the document reduced to writing. Benami is a concept derived from the use and practice in India of any immovable property by the real owner, keeping himself in hiding and projecting ostensibly someone else as the owner. The ostensible owner thus has all the rights and privileges of the owner of a property, except against the real owner who enjoyed the privilege of asserting his title against the ostensible owner. If any one could assert any right or interest in the property that stood in the name of Kannammal in the title deed, that was the real owner viz., the husband, if at all Kannammal was only ostensibly the owner and the property in fact had been purchased by Vedachala Naicker. We cannot see any possibility of a creditor who may have a claim against the debtor to say that his debtor is the real owner of the property, although the property stood in the name of another person. 5. Learned Counsel for the appellant, however, has placed reliance upon a judgment of the Privy Council in Man Mohan v. Mt. Ramdei, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of the execution of the deed under any pressure of debt. The deed of gift was duly registered and the name of the donee entered in the Municipal records. Besides the above, it is noticeable in the judgment of the Privy Council that Behari Lal had instituted the suit to have the deed of gift set aside and stated that he did so under the advice of his evil companions and due to fear of creditors and described and deed of gift as fictitious. He also alleged somewhat inconsistently that the property had reverted to him under the terms of the deed owing to his wife having ceased to live with him. The Privy Council pronounced: Their Lordships on a consideration of the whole circumstances, of which they have set out the salient incidents, are satisfied that the appellants have failed to discharge the burden incumbent upon them of proving that the deed of gift was fictitious. Apart from general auspicion of Behari Lal, on whose actings as little reliance can be placed as on his word, and who was naturally willing when it suited his purpose, to falsify the facts, there is really no evidence of such a character as would entitle a court to take the serious step of setting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court, wherein for recovery of sums due to the Government from the husband, a property which has stood in the name of his wife was attached. The wife filed a suit claiming relief on the ground that the house was her personal property and could not be attached to the sums owing by her husband. The defence by the State was that the property belonged to the husband, and that, therefore, the attachment was valid. The wife relied on a registered document which was proved to have been duly executed. She also let evidence to show that she had sufficient means to purchase the house. The Supreme Court, on the basis of the abovesaid: In the first place, the State never pleaded that the house in question was purchased by the husband through a benami transaction in the name of his wife. It was also not pleaded clearly that the property belonged to the husband and that it has been sold to the wife with the intention to defeat the creditors of the husband. A vague allegation of this type seems to have been made in the written statement but no evidence whatsoever has been led to show as to whether there was any such intention on the part of defendant No. 5. Even the data when the sums s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ored, and no inference drawn against its contents unless, as again observed by the Supreme Court, the person asserting the transaction to be benami is able to show that the ownership although ostensibly shown in the name of a certain person, was in reality with another. We are satisfied that the learned trial Judge has committed no mistake in coming to the conclusion as above with respect to the property in question. 9. Had there been any assertion before us that the fourth respondent insolvent had any other property or that the Official Assignee and or the learned single Judge were not informed about all the properties of the insolvent, we would have thought to give to the creditor another opportunity to agitate and seek a review of the order discharging the insolvent. Since the only property referred to is one which has been found to belong to the first respondent Kannammal, and in which property it has not been established that the insolvent ever had any interest, we think no interest will be served by making any observation as to the claim of the creditor still surviving and the insolvent still liable and not discharged. It is a case, in our opinion, in which the only possib ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
