TMI Blog2023 (4) TMI 977X X X X Extracts X X X X X X X X Extracts X X X X ..... er for her husband Bapanna Rao, but on the contrary they suggest that they are the personal properties of Rajeswari Bai. Issue No:1 is therefore, decided against the plaintiff. Consequently, there is no need to consider the Additional Issue on the tenability of pleading benami in the face of statutory bar under the Benami Transaction (Prohibition) Act, 1988 or its current version. Validity of settlement deed - exclusion of plaintiff - mental status of Monther for execution of deed - right of the plaintiff over property under the schedule A category - HELD THAT: - It is true that the plaintiff too has not examined herself. But non-examination of the first defendant is critical since she alone could provide the facts pertaining to the mental status of Rajeswari Bai at the time of Exts.P.3 and P.8, more so when the mental state of the 2nd defendant is suspect. They at least could have examined any physician who had treated Rajeswari Bai with supporting medical records but that was ignored. This Court now has little option than to hold that Rajeswari Bai would not have been in sound mental state sufficient enough to understand what she was doing and that Exts.P.3 and P.8 are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h defendant. ● 'A' schedule property is a vacant site and 'B' schedule property is a site plus a residential building. On 26.06.1965 and 20.10.1966, Bapanna Rao had purchased both the properties in A and B schedules respectively, in the name of his wife Rajeswari Bai, the mother of the plaintiff and defendants 1 and 2 respectively, but without any intent to benefit her exclusively. This is the foundation for the cause of action for the suit. ● The C schedule item of property was allotted to Bapanna Rao in a partition that took place on 14.07.1997. While so, Bapanna Rao had died on 17.02.2005, and her mother Rajeswari Bai died on 27.12.2008. Upon their demise, the right over the property devolved equally on all the three children of Bapanna Rao and Rajeswari Bai. Accordingly, the plaintiff is entitled to 1/3rd share in each of the three items of properties. ● On 30.05.2003, the 2nd defendant had met with an accident about two years since he had lost his wife Sasikala. The 2nd defendant is alleged to have suffered massive injuries and he was largely incapacitated physically. The 2nd defendant and his two children, namely, defendants 3 and 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... untenable. It is in these circumstances the plaintiff had laid the suit for the prayers already outlined earlier. 3. The case of the Defendants: ● A and B schedules of properties were purchased by Rajeswari Bai and they are her exclusive properties. The contention that it was purchased by Bapanna Rao in her favour with no intent to benefit her exclusively is false and untenable. ● Rajeswari Bai has been under the care of the 1st defendant and her family. In between, the 2nd defendant, the brother of the 1st defendant had suffered a major road accident. He had already lost his wife. It is the 1st defendant and her family, who cared the 2nd defendant and his two minor children right through. It is in these circumstances, in expression of her love and affection towards the 1st defendant, Rajeswari Bai, out of her own volition executed the two settlement deeds dated 04.07.2005 and 25.10.2007 as concerning A and B Schedules of properties. ● At no point of time, the plaintiff had met any of the medical expenses of her mother or her brother, and at no point of time did she offer to care her mother. The allegation challenging the two settlement deeds is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fendants produced Exs.D1 to D5, of them, Exs.D1 and D2 are same as Ex.P17 and P18. 6. There is no dispute as regards the C Schedule item of property. And, since Rajeswari Bai had now passed away, there is no difficulty in declaring the 1/3 share of the plaintiff. Issue No:2 is decided accordingly. 7. Focussing his argument on the sustainability of the cause for action as concerning A and B Schedule items of properties, Mr.R. Parthasarathy, the learned counsel for the plaintiff, argued that, while it is not in dispute that these two items of properties were purchased in the name of Rajeswari Bai under Ext.P17 and Ext. P18 sale deeds, the point is who actually financed these purchases? According to the plaintiff, Rajeswari Bai was only a home maker and did not have any independent source of income. He argued that: ● Bapanna Rao, the father of the plaintiff, admittedly, was working in the Commercial Tax Department, and was a DCTO when he superannuated, and it was his income that sustained the family. While the defendants assert that Rajeswari Bai had sthridhana property etc., to support her, the evidence on record indicates that there is no proof of any such sthridha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Besides, in Mangathai Ammal case, the Hon'ble Supreme Court has held that the Act cannot have retrospective effect which in the context would mean that the amended Act cannot affect pending suits. This would imply that neither the earlier version of the Benami Transaction Prohibition Act, or the current version of the Act made in 2016, bars the plaintiff from pleading benami . ● Bapanna Rao died on 17.02.2005. D.W.1 admits that at the time when Bapanna Rao died, Rajeswari Bai was down with paralysis. This implies that on the date of death of Bapanna Rao and subsequently, Rajeswari Bai was not in the best of health, and hardly, within five months after Bapanna Rao died, Rajeswari Bai executed Ext.P3, the first of the settlement deeds as pertaining to A schedule property, and the second settlement deed (Ext.P.8) came into existence within about a fortnight after the issuance of Ext.P.4, the first suit notice, dated 07.10.2005 by the plaintiff. It is self evident that this aged and paralytic mother was entirely dependent on the 1st defendant, and the situation has created an right circumstance for her to repose active confidence in the 1st defendant, and therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers [2020-5- L.W.264]. Her non-examination is significant in the context of the fact that she asserts that Ext.D1=Ext.P17 and Ext.D2 =Ext.P18, sale deeds respectively relating to 'A' and 'B' schedules of properties were purchased benami by Bapanna Rao, and the burden of establishing that Rajeswari Bai did not have any resources of her own, is on her, which burden she has not discharged. ● Alternatively, even if it is found that Bapanna had paid the entire sale consideration, yet it must be presumed that it was intended for the benefit of his wife Rajeswari Bai. At any rate, mere payment of sale consideration is not the sole criterion for holding that a particular purchase is a benami purchase. Reliance was placed on Bhim Singh (dead) by L.Rs. and another v. Kan Singh [AIR 1980 SC 727]; Nand Kishore Mehra v. Sushila Mehra [(1995) 4 SCC 572] and Mangathai Ammal (Died) thru. L.R.s and others v. Rajeswari and others [2020 (2) CTC 217]. ● When once it is established that 'A' and 'B' schedule properties are not Benami properties, then Rajeswari Bai had every right to execute Ext.P3 and Ext.P8 settlement deeds, and that s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uilt by utilising the terminal benefits of second defendant, plus the contributions from first and sixth defendant. The defendants have produced a letter dated 30.10.2006 (marked as Ext.D3) in which the plaintiff discloses her knowledge about the construction of the house in 'A' schedule property and demands 'B' schedule property to her share. This letter is disputed by the plaintiff, but since she did not examine herself as a witness, the defendants did not have an opportunity to confront her with Ext.D3. ● D.W.1 through his oral testimony speaks to the fact that the second defendant takes care of his affairs, but with the assistance of the first defendant and that he manages A and B schedules of properties. ● Ever since the acquisition of title under Ext.P3 settlement deed, the first and sixth defendant are residing there, whereas defendants 3 and 5 began to reside in 'B' schedule property as of their right. Since, these defendants are in exclusive possession of the property on their right, the suit ought to have been valued under Section 37(1) of the Court Fees and Suits Valuation Act, 1955. Of Discussion Decision: 9. The broad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made under Ext.P-17 and Ext.P-18. The sale consideration passed under these documents are Rs.1,920/- and Rs.1,750/- respectively. With the plaintiff opting not to examine herself, the best evidence that she could have produced on the point was denied to the court, and consequently, it cannot be concluded that Rajeswari Bai did not have her own finances to provide consideration for Exts.D.1 and D2. Therefore, in the absence of any evidence, it will be perilous to entertain a speculation at this distant point of time that Bapanna Rao might have provided the resources for the sale consideration passed under Exts.P-17 and P-18. This apart, Bapanna Rao had lived for another 40 years since the purchases of Schedules A and B properties, and no evidence is produced to indicate that Bapanna Rao had ever attempted to assert any right over or in relation to these properties. In Valliammal Vs Subramaniam [(2004)7 SCC 233], the Hon'ble Supreme Court has formulated certain parameters for identifying a benami purchase. They are: (1) The source from which the purchase money came; (2) The nature if any, for giving the transaction a benami colour; (3) the position of the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... written a letter dated 30.06.2006 to her mother demanding partition. This letter was not pleaded by the plaintiff but D.W.1 admits to his knowledge about it. Rejeswari Bai did not respond. ➢ And, this is followed by Ext.P-4, legal notice, dated 07.10.2007, from the plaintiff to her mother, the first defendant, and also her brother, the second defendant, alleging that the A and B Schedules of properties purchased under Exts.D1 and D2 were held benami by her mother for Bapanna Rao, and demanded partition. Not one, more particularly the first defendant, had chosen to respond to it. ➢ Within about a fortnight of issuance of Ext.P.4 notice, Ext.P.8 settlement deed was executed. Thereafter, the first defendant sent her Ext.P- 10 reply, and Rajewarai Bai her Ext. P-11 reply notices, both dated 10.03.2008. ➢ The originals of Exts.P.3 and P.8 settlement deeds were not produced. ➢ The first defendant did not examine herself. The second defendant, the father of D.W.1, had suffered an accident, and D.W.1's testimony as to his capacity to tender evidence is ambivalent. He says that he only needs support for his mobility, but in another place he woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery fact that the executant of Exts.P.3 and P.8 was under the care of the first defendant, and with the capacity of the second defendant extremely doubtful and the efforts at make-believe to project him as competent to handle his affairs notwithstanding, the burden is squarely on the first defendant to explain to the court about the mental status of an aged, paralytic patient in her care, custody and control. But she chose not to do it, and appears to be hiding information from forensic scrutiny. And, if the second defendant is competent to speak, then his non examination only aggravates the peril that stares on the defendants. And, D.W.1 is plainly incompetent to speak about it because he dugs any question material to ascertain the point under scrutiny with a stereotyped answer that he was a boy at the relevant time. The strategy of the defendants in not producing the best evidence before the Court through their most competent witness is grave enough for this Court to draw adverse inference over their conduct. 17. With the minimum facts, indisputable in that, that Rajeswari Bai was aged, paralytic, and not known to be a woman of letters (though according to D.W.1 she can write ..... X X X X Extracts X X X X X X X X Extracts X X X X
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