TMI Blog2023 (2) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... established that he had purchased the property from his funds in her name. Hence, for the above said reasons, we hold Point No.1 in favour of the respondent. If the properties were purchased from the funds of the respondent, whether the respondent had rebutted the statutory presumption u/s 3(2) of the Benami Transactions (Prohibition) Act, 1988 that the purchase of properties in the name of the wife is presumed to be for her beneficial interest? - It is the case of the appellant that merely because the respondent was managing properties and paying taxes, it cannot be inferred that the properties were not purchased for the beneficial interest of the appellant. We are in agreement with the said proposition. It is the matter of common knowledge that in an Indian family, the husband normally looks after the property which is in the name of the wife. This alone cannot determine that the husband bought the property for his interest benami in the name of his wife. The Hon'ble Apex Court in [ 2015 (10) TMI 2780 - SUPREME COURT] and [ 1963 (12) TMI 31 - SUPREME COURT] had held that merely because the husband is managing the property, it cannot be held that the properties were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me only because he felt that it would bring luck to him as admittedly 'Felshia' means luck. Therefore, we hold Point No.2 in favour of the respondent. We find no reasons to interfere with the Judgment of the Trial Court. Accordingly, the Appeal Suit is dismissed. - A.S.(MD)No.39 of 2011 And M.P.(MD)No.3 of 2011 - - - Dated:- 30-1-2023 - Honourable Dr.Justice G.Jayachandran And Honourable Mr.Justice Sunder Mohan For the Appellant : Mr.M.Ajmalkhan Senior Counsel for Mr.R.Alagumani For the Respondent : Mr.J.Barathan JUDGMENT SUNDER MOHAN, J. The appeal is preferred by the wife challenging the Judgment and Decree in O.S.No.20 of 2004, by which, the learned Judge, Family Court, Chennai, declared that the suit schedule properties purchased in her name by the husband/respondent are benami properties purchased for the interest of the respondent and not for her beneficial interest. 2. The respondent filed the suit for the declaration that Item Nos.1 to 6 of the suit properties were benami properties purchased by him in the name of the appellant and that she had no beneficial interest in the suit properties. 3. The averments in the plaint filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operties were purchased out of the funds given by her father, who was well to do and the respondent had not contributed any money for the purchase of the properties in her name. She was a dutiful wife and all the allegations accusing her of being irresponsible were invented for the purpose of the suit. 5. Before the Trial Court, the respondent examined 6 witnesses and had marked Exs.P.1 to P.31. The appellant examined 2 witnesses on her side and she did not mark any document. The Trial Court framed 6 issues and held in favour of the respondent in all the 6 issues. Aggrieved over the same, the appellant filed the above appeal. 6(a). The learned Senior Counsel for the appellant submitted that the properties were purchased in the name of the appellant by the appellant's father. The respondent had not contributed in any manner for the purchase of the properties. (b) In any case, since the properties were purchased in the name of the appellant, who is the wife, there is a presumption under Section 3(2) of the Benami Transactions (Prohibition) Act, 1988, which says that if any property is purchased in the name of the wife, it shall be presumed that it was purchased for her b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration and any oral evidence contrary to the said recital is hit by Section 91 of the Indian Evidence Act. (g) The learned Senior Counsel submitted that at the appellate stage, this Court can allow additional evidence, which would clear any doubts and enable this Court to render justice. Therefore, he pleaded for allowing the application for additional evidence permitting to file a sale deed and certain other receipts purchased in the name of the respondent in the year 1992. He relied upon the Judgment of the Hon'ble Apex Court reported in (2022)7 SCC 247 (Sanjay Kumar Singh vs. State of Jharkhand) in this regard. 7(a). The learned counsel for the respondent/plaintiff submitted that the conduct of the appellant would show that the properties never could have been purchased for the beneficial interest of the appellant. The appellant had abandoned the respondent on 05.09.2003. On the complaint given by the respondent which was registered as an FIR, the child was returned to the respondent. Since then the respondent has been taking care of his son. (b) The appellant though had pleaded that her father bought the property in her name, she could not establish the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant has no serious objection to the said document. The said document, according to the appellant, is essential for deciding the above appeal, since it can remove the doubt in the case and it may have a direct bearing on the main issues. The other documents are relating to certain tax receipts, which may not be relevant for the purpose of the case. Therefore, we allow the sale deed bearing Doc.No.538 of 1992 dated 05.01.1992 to be taken as additional document on the side of the appellant. Since the respondent has no serious objection, the said document is taken on record without formal proof. Therefore, M.P(MD)No.3 of 2011 is partly allowed only in respect of the above said sale deed. The Judgment of the Hon'ble Apex Court reported in (2022)7 SCC 247 (Sanjay Kumar Singh vs. State of Jharkhand) is squarely applicable to the fact of the case. The relevant portion is extracted hereunder: ............However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t funds to purchase the property as benami in the name of the appellant. (b) That apart the respondent had examined PW.3 who sold one of the suit schedule properties, to support his case that the property was purchased in the name of the appellant by the respondent only because the Astrologer had advised him to do so and name of the appellant 'Felshia' means luck. He had also bought the properties to reduce the burden of paying wealth tax. P.W.4 is the builder, who constructed the building at the instance of the respondent. He would state that the respondent approached him for the construction. P.W.5 is the other vendor, who sold the properties by sale deeds marked as Exs.A.8 and A.9 in favour of the respondent. He would also state that the respondent negotiated the transaction and paid the sale consideration. P.W.6 is the lessee in the agricultural land bought in the name of the appellant and he would also state that he had been paying rents to the respondent. Though the appellant had claimed that the properties were purchased from the funds given by the father, she had not filed documents to substantiate the said claim. Further, the evidence of the appellant and D.W.2- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter; 16. The learned counsel for the appellant relied upon the Judgments of the Apex Court in (1995)4 SCC 572 (cited supra) and (2020)17 SCC 496 (cited supra) in support of his submission that there is a presumption under Section 3(2) of the Act and a person claiming that the property was purchased by benami in the name of his wife cannot succeed in a suit or defence, unless he proves that the same was not purchased for the benefit of the wife. The following observation of the Hon'ble Apex Court made in (1995)4 SCC 572 (cited supra) is in support of his submission: ...........But, it has to be made clear that when a suit is filed or defence is taken in respect of such benami transaction involving purchase of property by any person in the name of his wife or unmarried daughter, he cannot succeed in such suit or defence unless he proves that the property although purchased in the name of his wife or unmarried daughter, the same had not been purchased for the benefit of either the wife or the unmarried daughter, as the case may be, because of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the guidelines issued by the Hon'ble Apex Court to determine whether particular transaction is benami or not. There cannot be any dispute with regard to the proposition of law laid down in (2020)17 SCC 496 (cited supra) which reiterates the following principles laid down in (2007)6 SCC 100 (cited supra). The six circumstances that can be taken as a guide to determine the said issue, as laid down earlier by Supreme Court are: (i) the source from which the purchase money came; (ii) the nature and possession of the property, after the purchase; (iii) motive, if any, for giving the transaction a benami colour; (iv) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (v) the custody of the title deeds after the sale; and (vi) the conduct of the parties concerned in dealing with the property after the sale. 18. These are the principles laid down not only for purchase of the property in the name of the wife but for determining whether the transaction is benami bought in the name of the third parties as well. But the real issue in this case, as stated earlier, is whether the presumption under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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