TMI Blog2021 (10) TMI 775X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 daughte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ammal, Sabapathi Iyer contracted second marriage with Krishnamani. The second wife also passed away. Through Krishnamani, there was no issue. Thereafter, Sabapathy Iyer married the first defendant Amirdham Ammal and through her, defendants 2 to 4, 6 and 7 were born. The stand of the plaintiffs was that the property though purchased by Swarnalakshmi Ammal out of her earnings and Stridhana was treated only as a joint family property. The suit properties formed part of a larger extent. Portions of the property purchased vide Ex.A.1 were subsequently sold in favour of a third party vide Ex.A.3 dated 22.04.1971. It was also mortgaged in favour of a registered association vide Ex.A.2 dated 14.05.1962. Sabapathy Iyer passed away on 05.02.1997. In the coparcenary comprising Sabapathy Iyer, the three plaintiffs, defendants 2 to 4, each of them had 1/7th share. Following the demise of Sabapathy Iyer, his 1/7th share would devolve equally on the plaintiffs as well as the defendants. According to the plaintiffs, they are entitled to 33/70th share in the suit property. 5. The contesting respondents/defendants 1 to 4 opposed the suit claim. According to them, the purchase of the suit prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich the purchase money came; 2. the nature and possession of the property, after the purchase; 3. motive, if any, for giving the transaction a benami colour; 4. the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; 5. the custody of the title deeds after the sale; and 6. the conduct of the parties concerned in dealing with the property after the sale. According to the learned counsel, the plaintiffs have not adduced any evidence to show that the purchase money for Ex.A.1 came from Swarnalakshmi Ammal. He called upon this court to take judicial notice of the fact that the transaction took place way back in the year 1943 and that therefore, it was only probable that Sabapathy Iyer would have funded for the entire purchase. The property was always in the possession of Sabapathy Iyer; he had dealt with the property as his own self-acquired and absolute property as evident from the recitals set out in Ex.A.2 and Ex.A.3 and the nature of his bequest (Ex.B.21). The learned counsel also took me through the cross examination of P.W.1. P.W.1 appears to have been under the care and protection of his paternal un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons, when executing Ex.A.2 mortgage deed or Ex.A.3 sale deed. A portion of the property purchased vide Ex.A.1 was sold in favour of the third party vide Ex.A.3. A mere look at the recitals of Ex.A.3 would show that Sabapathy Iyer treated the property as a joint family property. Therefore, I hold that the burden cast on the contesting respondents that the property was purchased benami by Sabapathy Iyer has not at all been discharged. 13. The learned counsel appearing for the appellants drew my attention to the decision reported in (1997) 2 MLJ 46 (Parvathi Ammal Vs. Solai Ammal And Anr.). In paragraph No.11 of the said decision, it has been held as follows:- 11. In Nand Kishore v. Sushila it was held that the prohibition to raise the plea of benami is not applicable to the property purchased by a person in the name of his wife or unmarried daughter but at the same time, the persons so pleading must prove that the said property had not been purchased, for the benefit or welfare of such persons in order to succeed. In coming to such conclusion, their Lordships of the Apex Court adverted to Section 3(2) which provided that nothing in Sub-section (1) which in turn stipulated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sation amount for these lands is payable to the following person. N.V.Sabapathy Iyer, 9, Jadamunikoil Street, Madurai 625 001. Market value of land, structures, wells trees etc., ₹ 1,698.12 30% solatium ₹ 509.44 Additional amount of 12% on the market value per annum ₹ 415.92 ₹ 2,623.48 The aforesaid reasons given by the land acquisition officer are significant for two reasons. They indicate that even though the land was registered in the name of Sabapathy Iyer, still they were categorised as the Stridhana lands of his late wife and that they were in possession and enjoyment as a joint Hindu family property. It further reads that the other members have given consent for paying the compensation amount to their father Sabapathy Iyer. That shows that the relationship between the parties till 1989 was quite cordial. 15. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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