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TMI Blog2023 (7) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... is the father of the plaintiff. All of them were the members of the joint Hindu family. Apart from the joint family properties, Suruliandi Asari had a jewelry business on his own at Cumbum. The business ended up on his death on 13.01.1976. During the lifetime of the plaintiff's father, the properties were divided. The plaintiff also had the jewelry business on his own in the Agrakaram street at Cumbum, even during the lifetime of his father. (iii)the eldest brother of the plaintiff was a lawyer by profession. His income from and out of said profession was very meager. He was depending upon the income from the landed properties and whatsoever was given by his father Suruliandi Asari. Considering the relationship between the plaintiff and his eldest brother and considering the legal qualification of his brother, the plaintiff relied on him naturally. After the purchase of the suit property, Subramanian requested the plaintiff to permit him to shift himself to the suit property for his residence and office. Accordingly, the said Subramanian was inducted as permissive occupant of the suit property. After the purchase of the property, the electricity and water service and house ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation was also repudiated by the plaintiff by making another publication on 26.01.1987. (vii)thereafter, the plaintiff issued notice to the first defendant and defendants 5 to 7, who are the tenants in portion of the suit schedule property. The first defendant replied to the said notice on 12.08.1987 with false allegations. The first defendant is trying to misuse the permission granted by the plaintiff to reside in the suit schedule property by taking advantage of the fact that the plaintiff had handed over all the title deeds with regard to the plaint schedule property to the husband of the first defendant. Hence, the plaintiff filed the suit. (viii)admitting the relationship between the parties and denying the entire allegation, the first defendant filed a written statement stating that the plaintiff has not come to the Court with clean hands. She also denied the contention of the plaintiff that he owned the jewelry business. According to her, the joint family properties of Suruliandi Asari were orally partitioned. Subsequently in the year 1970, the oral partition came into existence under a registered partition deed. In the above said partition, all the family properties of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uit property, he decided to purchase the property in the name of anyone of his family members as benami. Hence, the husband of the first defendant purchased the suit property, in the name of the plaintiff as he was very affectionate with Subramanian. (xii)only to escape from the claim of the first wife and in view of the faith on the plaintiff, the husband of the first defendant purchased the suit property in the name of the plaintiff. Since the property was purchased in the name of the plaintiff, the electricity service connection and water connection were assessed in his name. The allegations that the plaintiff wanted to reconstruct the building and Subramanian was managing the construction were also false. It is only Subramanian, who started the work of reconstruction in the year 1984 from and out of his own funds. Since the sale deed stood in the name of the plaintiff as benami, naturally and necessarily the said Subramanian applied for plan and other things in the name of the plaintiff as required under law. (xiii)it is further submitted that on completion of reconstruction work, the husband of the first defendant only celebrated the house warming ceremony of the house on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been paid by the plaintiff. Therefore, the allegation that the husband of the first defendant, viz., Subramanian had paid the consideration cannot be countenanced. According to him, the trial Court had placed the entire burden on the plaintiff to prove his source of income to pay the sale consideration, instead of placing the burden on the defendants to establish the plea of benami transaction. One of the attesting witnesses, viz., Karuppiah, who was also a leading Lawyer, was very much alive during trial. The defendants have not chosen to examine him to disprove the consideration paid by the plaintiff. Therefore, when the document clearly indicates that the suit property was purchased by the plaintiff, it is for the persons, who plead benami transaction to establish the same. However, the trial Court had placed the entire burden on the plaintiff to show his income or source to purchase the suit property. 7.2. It is the further contention that even prior to the purchase of the property, the plaintiff had borrowed a sum of Rs. 20,000/- under Ex.A5, a promissory note to pay the advance amount and on the date of registration, the remaining sale consideration was also paid. That ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of her husband to meet out the renovation expenses. Hence, it is the contention that since Subramanian, who was the eldest brother of the plaintiff and residing in the suit property, was in fact monitoring the construction stage by stage, the plaintiff had withdrawn his money from his bank account and given it to his brother. 7.5. Further, taking advantage of the fact that all the original documents have been handed over by the plaintiff to his brother, Subramanian to prepare an application to be filed before the planning authorities, now the defendants had set up a plea of benami on the sole ground that all the original documents are with her. Further, mere payment of taxes by the first defendant's husband will not prove the benami transaction. Admittedly, Subramanian was in permissive possession and naturally, the receipts of payment of taxes will be with him only. Therefore, production of the tax receipts will not prove the defendants' case. The trial Court failed to consider the entire documents properly. It is his further contention that the plaintiff is residing at Cumbum. This fact is admitted. Only Subramanian being the eldest brother of the plaintiff, who is the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that Subramanian was admittedly practicing as a lawyer at Madurai from the year 1961 and he also had family agricultural lands, estates and buildings. He was also doing jewelry business. 8.2. The plaintiff also admitted that Subramanian had already purchased a house in North Veli Street at Madurai and that was sold before the purchase of the suit property under Ex.B1. Therefore, it is the contention that Subramanian had money to purchase the property, which has also been established from the admission of P.W.1. That apart the agreement, dated 22.11.1968 with the original owner of the property establishes the fact that Subramanian had in fact entered into a sale agreement. Besides, Subramanian had also obtained encumbrance certificate on 23.01.1969, under Ex.B84. 8.3. It is further contended that the plaintiff had not produced any evidence to show that he had independent source of income or means to purchase the suit property. In fact, the plaintiff had admitted that he had no money to pay the advance, therefore, he had borrowed the same on pro-note. The person, who is said to have advanced the amount on pro-note to the plaintiff is also not examined. When the plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed to perform Kirkaprevesha cannot be countenanced. Subramanian enjoyed the property as absolute owner. 8.7. Ex.A3 and Ex.A4 are the certified copies of the order and decree in the matrimonial case. It was finally decided and decreed on 31.08.1971. Ex.X7 is the release deed executed by the first wife in favour of Subramanian. The motive for benami purchase is only to avoid the possible claim of the first wife during the pendency of the matrimonial home. Whereas, the claim of the plaintiff, who claims to have purchased the property and engaged Subramanian for the purpose of managing the property, cannot be countenanced. The plaintiff got married in the year 1977 and no one was examined to prove the contention of the plaintiff that he had enquired about the suit property with his uncle. 8.8. The plaintiff, who had no real connection with Madurai and being unmarried, would have no reason to purchase the property at Madurai. Subramanian was the lawyer by profession and practicing at Madurai and he had also owned a house in North Veli Street, Madurai and he had sold the same before the purchase of the suit property, under Ex.B1. The said fact probablise the defendants' case tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an had bona fidely believed that his first wife may claim right over the property. Therefore, he had purchased the property in the name of his brother. Whereas, the learned counsel for the plaintiff had relied upon the judgment of this Court in Koppula Kotayya Naidu and others vs. Chitrapu Mahalakshmamma [1933 L.W. 645], in which it has been held that that a person who has conveyed the property benami to another for the purpose of effecting a fraud on his creditors cannot, where the fraud has been effected, set up the benami character of the transaction by way of defence in a suit by the transferee for possession under conveyance. It is relevant to note that such view of the Hon'ble Division Bench of this Court was dealt by the Hon'ble Supreme Court in the case of Immani Appa Rao and others vs. Gollapalli Ramalingamurthi and others [1969 AIR 370], wherein the Hon'ble Apex court in para No.17 of that judgment, did not agree with the view of the Division Bench of this Court. Therefore, the above judgment relied upon by the appellant cannot be pressed into service. 13. With regard to the plea that the defendants are entitled to protection under Section 4 (3) (a) of Act 45 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witnesses in Ex.B1, sale deed, is a Lawyer and he was very much alive during trial, but he was not examined to prove the claim of the defendants that the entire sale consideration was paid by Subramanian. It is relevant to note that it is well settled that the burden of proving the particular sale as benami and the apparent purchaser is not the real owner, always rests on the person asserting such plea. The burden has to be strictly discharged by adducing legal evidence of a definite character, which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference to the said fact. Once the sale deed is executed and registered, there is a legal presumption that every other act is done properly. When the person goes against the registered document and asserted different transaction, the burden is on him to establish the same. 16. In the light of the above settled legal position of law, now it has to be seen whether the defendants established plea of benami transaction and the fact that the entire sale consideration was paid by the husband of the first defendant. The evidence of D.W.1 clearly shows that her husband is not an in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear 1971 and the release deed was also executed by the first wife in favour of Subramanian under Ex.X7, in the year 1971. Therefore, when the said proceedings was culminated, the normal conduct of the person, who purchased the property in benami, particularly the person, who was a lawyer by profession and not an illiterate, would be either to demand reconveyance or settlement of the property in his name. It has not been done so. This aspect also creates serious doubt about the benami transaction. 20. It is the specific contention of the plaintiff that he had decided to renovate the house property and convert the portion of the same into non residential area. In this regard, he had applied for getting permission from the planning authorities. It is relevant to note that Ex.X8, is an application for the purpose of getting approval for renovation, submitted to the Corporation by the plaintiff. Ex.X9 is the plan for approval. Ex.X10 is the undertaking of the plaintiff to the Corporation. Ex.X11 is the proceedings from the Madurai Corporation to the plaintiff refusing to accord approval on account of deviation. Ex.X12 is the proceedings initiated before the Commissioner of Corporation, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had not withdrawn any amount from his bank account at the relevant point of time. Besides, she also admitted in her evidence that he had not even received any amount from the third party. These facts create serious doubt about the plea of benami transaction. Ex.A9 to Ex.A20 clearly show that during the period of renovation, nearly a sum of Rs. 3 lakhs had been withdrawn by the plaintiff. Therefore, the plaintiff's contention that he had handed over the amount to his brother, who is the eldest brother in the family is more probable. 24. Admittedly the plaintiff was residing far away from Madurai and his brother was looking after all the matters and the renovation work was done at his supervision. Merely on the basis of the evidence of D.W.2 to D.W.6, who had done some civil works under the instructions of Subramanian, the plea of benami transaction cannot be established. When Subramanian being the eldest brother and he was already residing in the house, it is normal for him to engage the workers to carry out renovation works. Therefore, that fact alone will not be a ground to hold that benami transaction has been established. 24. Another circumstances, which had been pleaded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e evidence, the defendants had not established the source for the purchase of the property by the first defendant's husband. The fact that how the custody of the documents came to the hands of the first defendant's husband was also clearly established by the plaintiff. Subramanian was in fiduciary relationship with his younger brother, since he is the eldest brother of the family and also he is a Lawyer by profession. Therefore, keeping the documents in his custody particularly, when he had prosecuted certain matters before the authorities on behalf of the plaintiff is quite possible. 28. As far as the motive is concerned, the very motive for benami transaction is to defeat the rights of the first wife. Even such motive is true, the first defendant's husband kept silent even after his first wife relinquished her right in the year 1971 and he had not asserted his right independently as a owner. Whereas, he stood only as an agent of the plaintiff. Therefore, the plea of benami transaction has to fail. Further, merely because the defendants are in possession of the suit property and paying the house tax in their name, that will not be sufficient to prove the benami transa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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