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TMI Blog2023 (6) TMI 1264X X X X Extracts X X X X X X X X Extracts X X X X ..... ree dated 15.09.2005 passed in O.S.No.28 of 2002 on the file of the Sub Court, Chidambaram. Cross Objection filed under Order XLI Rule 22 of C.P.C., praying to set aside the judgment and decree dated 28.09.2015 made in A.S.No.1 of 2007 on the file of the II Additional District and Sessions Court, Chidambaram in so far as it relates to partly reversing the judgment and decree made in O.S.No.28 of 2002 on the file of the Subordinate Judge, Chidambaram. 2. The appellants in Second Appeal are the legal heirs of the plaintiff and 1st respondent/defendant in O.S. No. 28 of 2002. On the death of the plaintiff, his legal heirs were impleaded in A.S.No.1 of 2007. The Cross objector is the 1st defendant in the suit. For the sake of convenience, parties are referred to as per their ranking before the Trial Court. 3.The case of the plaintiff is as follows: 3.1. The plaintiff and the 1st defendant are husband and wife, married in the year 1965 and were living in Neyveli. The plaintiff was working in Neyveli Lignite Corporation till December, 1982. Since the plaintiff got a job in a Steel Company in Saudi Arabia, he started earning a lot of money. After the plaintiff left for Saudi Arabia, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the suit properties belong to her and she purchased them with her funds by selling her jewels and other assets, which is false. The 1st defendant did not have any funds, jewels or assets to acquire the suit properties. The marriage of their daughter and one of the sons took place on 09.10.1987 and 20.01.1995 respectively. The 1st defendant made a false claim that she spent for the marriage and presented jewels to the children. She had no funds to meet the expenses. She had also taken the plea that the suit for injunction is not maintainable. 3.3. The Benami Transaction (Prohibition) Act does not apply to the facts of this case. The trial Court decreed the suit in favour of the plaintiff stating that all the suit properties i.e items 1 to 4 and 5 belongs to the 1st plaintiff and he is the true owner and entitled to his title to the suit properties. Whereas, the lower appellate Court partly allowed the appeal and thereby the judgement and decree of the trial Court dated 15.09.2005 has been set aside with regard to items 3,4 and 5 of the suit properties and confirmed in respect of remain properties. Hence he prayers to set aside the the lower appellate Courts judgement and upheld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted 80 grams of gold to the bride. The 2nd son has completed his BE course at Annamalai University. She spent Rs. 1,00,000/- for his education. The 1st defendant spent the money in a useful manner. The 1st defendant purchased a site at 16-A Viswanatha pillai lane in the name of the plaintiff and built a palatial three storeyed house. She has also constructed an outhouse. According to her, the 1st plaintiff is living in that house leading a sophisticated life. The value of that property is now more than Rs. 12,00,000/- and apart from that, he owns 1.20 acres of punja lands at Kullanjavadi village, he also has a cash amount of Rs. 10,00,000/-, stock and gold worth Rs. 5,00,000/-. The items 1 to 4 of the suit properties are the self-acquired properties of the 1st defendant. She purchased these properties by selling her jewels and income derived from her lands. 4.3.Even if, for the sake of an argument, the plaintiff has purchased the properties, the 1st defendant has got the full right and title over the suit properties under Benami Transactions (Prohibition) Act and the appellants herein have no rights in the suit properties. The 1st defendant is the real owner of the suit propertie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption under Section 3 of that Act is not an exception to Section 4. Section 4 is the enforceable and section 3 is only general in nature. Hence, this suit is barred under Section 4 of Benami Transaction (Prohibition) Act. 4.5. Further, the plaintiff filed a revision before the Hon'ble High Court, Madras in CRP 880/2004 and the High Court has set aside the order passed in I.A.1080/2003 and directed the trial Court to try both the suits together and that Court admitted that further evidence could be recorded in O.S.143/2003 and the evidence can be treated as evidence in O.S.28/2002. 5. Before the trial Court, on behalf of the plaintiffs, P.Ws.1 to 4 were examined and Exs.A1 to A52 were marked. On behalf of the defendants, the 1st defendant were examined as D.W.1 and marked Exs.B1 to B8. 6. The trial Court after considering both side arguments, documents which were filed and admissions made by the 1st defendant and plaintiff, has come to the conclusion that she had no income of her own. All the properties were purchased by the 1st defendant using the money which was earned by the plaintiff on behalf of him and not for the benefit of 1st defendant. She also had not produced any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntial questions of law. 1. Whether the lower appellate court erred in law in holding that the 3rd item of the suit properties was purchased by the 1st defendant by pledging her jewels and that she is the owner of the said property on mere surmises and conjectures without properly considering and appreciating Ex.A14 and Ex. A15 letters admittedly sent by the 1st defendant to the plaintiff in proper perspective? 2. Whether the lower appellate court erred in law and misdirected itself in holding that the 4th item of the suit properties belong to the 1st defendant merely because the sale deed stands in her name, without considering the admitted fact that the plaintiff was working abroad and sending money to the 1st defendant from 1983 - 1994, that the suit properties, items 1 to 4 were purchased in the name of the 1st defendant benami out of the money sent by the plaintiff while he was in abroad and that the plaintiff took possession and managed the said properties as his own properties after returning from abroad and particularly when the 1st defendant failed to prove that she had sufficient funds of her own to purchase the 4th item of the suit properties. 3. Whether the lower a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rried in the year 1965 and they were blessed with two sons and one daughter. The plaintiff was working in Neyveli Lignite Corporation till December, 1982. During January 1983, the plaintiff got employment in Saudi Iron and Steel Company, Hadeed located in Kingdom of Saudi Arabia and he was working there till December, 1994, thereafter, he retuned to India. The plaintiff used to send all the monies to his wife what he had earned in Saudi Arabia and instructed her to buy properties in trust for the benefit of the plaintiff. Thereby, the 1st defendant received the monies from the plaintiff and purchased Item Nos.1 and 2 of the schedule mentioned properties and the movables like jewels, saree and other articles and those movables are kept in the 3rd defendant's Bank locker. 13. He would further submit that the Trial Court has well appreciated the contentions of the plaintiff and decreed the suit in favour of the plaintiff with respect to the Item Nos.1 to 5 of the schedule mentioned properties. The Trial Court has held that these properties have not been purchased for the benefit of the 1st defendant and she had no source of income on her own. The 1st defendant acquired the title ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trial Court. Hence, he prayed to set aside the judgment and decree of the First Appellate Court to an extent of declaring Item No.3 of the schedule mentioned property belongs to the 1st defendant. 16. As far as Item No.4 of the schedule mentioned properties are concerned, he would contend that though the First Appellate Court reversed the judgment of the Trial Court, it has not discussed about any material evidences, proving that the said property was purchased by the 1st defendant either from and out of her own money or out of the monies obtained from sale proceeds of her ancestral property. In the absence of any material evidences, the First Appellate Court has reversed the judgment and decree and therefore, the findings of the First Appellate Court that the Item No.4 of the schedule mentioned properties belongs to the 1st defendant is liable to be set aside. 17. Learned Senior Counsel would further contend that as far as Item No. 5 of the schedule mentioned properties are concerned, these are movable properties in the form of jewels, gold bars, sarees, Kissan Vikas Bond, Promissory notes and other articles kept in 3rd respondent's bank locker. The Trial Court has come to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 1st defendant fairly agreed that the Item Nos.1 and 2 of the schedule mentioned properties were purchased from and out of the monies sent by the plaintiff. However, she would submit that the said properties were purchased in the name of the 1st defendant for her benefit since the 1st defendant sold her ancestral property to an extent of 1 acre and 4.5 cents, which was obtained from her father by way of partition and utlised the said money for the plaintiff's foreign trip. At the time of selling the 1st defendant's ancestral property to meet out the expenses towards the plaintiff's foreign trip, the plaintiff promised the 1st defendant that he will acquire the lands in her name to compensate the sale of ancestral property for the plaintiff's foreign travel and these are all admitted facts. Under these circumstances only, Item Nos.1 and 2 of the schedule mentioned properties were purchased in the name of the 1st defendant. Therefore, she would contend that the 1st defendant is not an ostensible owner holding the property in fiduciary capacity for the benefit of the plaintiff. 21. Further, she would contend that at any cost, the plaintiff cannot claim absolute owne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... item Nos.1 and 2 of the schedule mentioned properties are concerned, these are absolute properties of the 1st defendant, however, both the Courts below failed to consider all these aspects. Therefore, she requested this Court to set aside the judgment and decree of the First Appellate Court to an extent of decreeing the Item Nos.1 and 2 in favour of plaintiff alone. 23. As far as Item No.3 of the scheduled mentioned property is concerned, the First Appellate Court by relying upon Exs.A14 and A15 has held that this property was purchased with the money received by pleadging 1st defendant's gold jewels and Exs.A14 and A15 would reveal the same. Ex.A14 is relating to the details of amount received by way of pleadging of the gold and out of the said money, Item No.3 of the scheduled mentioned property was purchased. Ex.A15 is redemption of gold and this exhibit would ultimately prove that Item No.3 has been purchased out of the money received by way of pleading the gold by 1st defendant. The First Appellate Court has rightly reversed the judgment and decree passed by the Trial Court. 24. As far as Item No.4 of the schedule mentioned property is concerned, the Trial Court came to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nior counsel appearing for the plaintiff and the learned counsel appearing for the defendants and perused the entire materials available on record. 29. Having heard the counsel on record and on appreciation of their arguments, at the out set, it would be appropriate first to deal with the Substantial Questions of law, viz., 2, 4, 5, 6 and 7 which pertain to Item Nos. 1, 2 and 4 of the suit schedule properties. Substantial Questions of law Nos.2, 4, 5, 6 and 7 : 2. Whether the lower appellate court erred in law and misdirected itself in holding that the 4th item of the suit properties belong to the 1st defendant merely because the sale deed stands in her name, without considering the admitted fact that the plaintiff was working abroad and sending money to the 1st defendant from 1983 - 1994, that the suit properties, items 1 to 4 were purchased in the name of the 1st defendant benami out of the money sent by the plaintiff while he was in abroad and that the plaintiff took possession and managed the said properties as his own properties after returning from abroad and particularly when the 1st defendant failed to prove that she had sufficient funds of her own to purchase the 4th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irtue of partition from her father to an extent of 2.11 acres out of which, 1 acre was sold by the plaintiff long back and it was the contention of the 1st defendant that she was requested to sell this property by her husband under the promise that he would purchase the property in her name in future. Further, out of 11 cents, 4.5 cents of land was sold in the year 1982 and she gave this money to the plaintiff for his travel, visa and other expenses. It is also the admitted fact that the plaintiff had been sending monies out of his savings periodically from abroad in the name of the 1st defendant. 32. It is also admitted fact that the 1st defendant took care of the family and three children when the plaintiff left India during the year 1983 till December 1994. When the plaintiff left India for his employment, all the three children were minor children. It is also admitted fact that the plaintiff was an Office Bearer of a political party and she was also involved in the political activities and further she was also doing tailoring and also by conducting tuitions, she used to earn money and contribute the same to the family. 33. The various correspondences took place between the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enience to the plaintiff abroad and moreover, she sacrificed her dreams and spent her entire life towards the family and children. In these circumstances, whether the 1st defendant/wife can be excluded from claiming any share over the properties, viz., Item 1, 2 and 4? 36. In generaility of marriages, the wife bears and rears children and minds the home. She thereby frees her husband for his economic activities. Since it is her performance of her function which enables the husband to perform his, she is in justice, entitled to share in its fruits. 37. A wife, being a home maker peforms multi tasks, viz., as a Manager with managerial skills-planning, organizing, budgeting, running errands, etc.; as a Chef with cullinary skills-preparing food items, designing menus and managing kitchen inventory; as a Home Doctor with health care skills-taking precautions and giving home made medicines to the members of the family; as a Home Economist with financial skills- planning home budget, spending and saving, etc. Therefore, by performing these skills, a wife, makes the home as a comfortable environment and her contribution towards the family, and certainly it is not a valueless job, but it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove. Without contribution of the 1st defendant/wife to the family, the plaintiff would have engaged maid servants, that also for three shifts at 8 hours each per day and might have spent huge money from his earnings for maid servants in which case, the plaintiff would have certainly saved less money, which would not have been sufficient to purchase the properties or not saved anything. 42. To recognise the contribution made by the wife either directly or indirectly, so far, no legislation has been enacted. However, in the present case, this Court can very well recognise the contribution made by the 1st defendant/wife towards the purchase of the properties by her husband either directly or indirectly not only in money or in money's worth, but also the contribution made by looking after the home and taking care of the family. No law prevents the Judges from recognizing the contributions made by a wife facilitating her husband to purchase the property. In my view, if the acquisition of assets is made by joint contribution (directly or indirectly) of both the spouses for the welfare of the family, certainly, both are entitled to equal share. 43. In the present case, the properti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including for purchasing of the assets. 46. Though the properties purchased in the name of the 1st defendant, she alone cannot claim exclusive right over the properties merely because the title deed is in her name since the documentary evidence would establish that the 1st defendant/wife purchased the properties out of the direct financial contribution of the plaintiff also. Likewise, the plaintiff also cannot claim absolute right merely on the basis that he had sent the money to purchase the properties and the 1st defendant is only holding the property in trust as ostensible title over the properties in fiduciary capacity, as already discussed based on Ex.A1 to Ex.A11, this Court arrives at the conclusion that since Item Nos.1 and 2 have been purchased from and out joint contribution of spouses, viz., the plaintiff by earning and the 1st defendant indirectly by way of her invaluable services as home maker, whereby reducing the expenses of her husband which lead her husband to save more and this way the wife had contributed indirectly to purchase the property item Nos.1 and 2, which aspect cannot be ignored as the same could be decided based on Ex.A1 to Ex.A11. These aspects were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght of the above discussion, this Court is of the view that Item Nos. 1, 2 and 4 of the schedule mentioned properties were purchased from and out of the joint contribution made by both the plaintiff and the 1st defendant and they are entitled to equal shares over the item Nos.1, 2 and 4 of the schedule mentioned properties. Accordingly, the Substantial Questions of Law Nos.2, 4, 5, 6 and 7 are answered. Substantial Question of law No.1: 1.Whether the lower appellate court erred in law in holding that the 3rd item of the suit properties was purchased by the 1st defendant by pledging her jewels and that she is the owner of the said property on mere surmises and conjectures without properly considering and appreciating Ex.A14 and Ex. A15 letters admittedly sent by the 1st defendant to the plaintiff in proper perspective? 50. Item No.3 of the schedule mentioned property pertains to the immovable property purchased in the name of the 1st defendant. From a perusal of Exs.A14 and A15, it is very much clear that this property was purchased by the 1st defendant by pledging her jewels. Further, Ex.A15 would show that the jewels were redeemed from the monies received from the plaintiff. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y dissolution of the marriage? 52. Item No.5 of the schedule mentioned properties pertaining to the movable properties viz., Gold biscuits, Sarees etc., kept in 3rd defendant bank's locker in the name of the 1st defendant/wife. A perusal of Exs.A1 to A11 would show that the 1st defendant requested the plaintiff for presentation of jewels, sarees etc., as gifts to her while he was in abroad. The correspondences took place between the 1st defendant and the plaintiff, clearly reveals that the plaintiff had not bought the same on his own volition, but only on requests made by the 1st defendant persistently to gift her jewels, the plaintiff in order to fullfill her wishes, bought the jewels, sarees, etc., and presented her. Therefore, once he presented the gifts, he is not entitled to claim it back though he purchased out of his own earnings. Therefore, this Court is of the view that the Item No.5 of the schedule mentioned properties belongs to the 1st defendant. Thus, I do not find any error in the judgment and decree of the First Appellate Court on this aspect of Item No.5. Accordingly, the substantial question of law No.3 is answered in favour of the 1st defendant. 53. In fine, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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