TMI Blog2017 (1) TMI 1814X X X X Extracts X X X X X X X X Extracts X X X X ..... the Sale Deeds dated 9.11.1994 and 24.10.1994. The properties were purchased in the name of the first defendant for the sentimental reasons HELD THAT:- Relationship between the parties are admitted. The first defendant is the third wife of the plaintiff. Admittedly the title deeds for the suit properties stands in the name of the first defendant. According to the plaintiff, he had purchased the property in the name of the first defendant. On the other hand, in the Written Statement, it has been alleged that the first defendant purchased the properties out of her own funds, she borrowed money from her parents and sisters. Now the plaintiff filed the suit for declaration of title contrary to the documents of title. So the entire burden is upon the plaintiff to prove that he had purchased the property in the name of the plaintiff. Purchasing the property in the name of the wife and daughter is not covered under the Benami Transaction Prohibition Act. However even in the plaint the plaintiff was reluctant to describe that the first defendant as his wife. Whatever it is the burden is upon the plaintiff to prove his case. order to prove that the property was purchased by him, he ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for consequential relief for permanent injunction restraining the defendants, their men, agents and servants in any way interfering with the plaintiff's peaceful possession and enjoyment of the suit property and for costs. 2. The plaint in brief: The Plaintiff married one Yasodha as his first wife, she died in the year 1979. Thereafter, he married one Vijayalakshmi and Subsequently divorced her in the year 1985. After divorce the first defendant joined with the plaintiff in the year 1986 and they lived jointly as husband and wife. Two sons namely Kalaiarasan and Thellamuthan were born to them. The Plaintiff was a retired Government Servant. Since he was working at the time of purchase of the suit properties, he purchased the same in the name of the first defendant under the Sale Deeds dated 9.11.1994 and 24.10.1994. The properties were purchased in the name of the first defendant for the sentimental reasons. The consideration has been paid by the plaintiff out of his personal savings, Provident Fund alone. Though the properties were purchased in the name of the first defendant the plaintiff is enjoying the property as his own. 3. On 6.5.2009 he also mortgaged a por ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he litigation between the plaintiff and the first defendant. She is the bona fide purchase for valuable consideration. This suit is hit by Benami Transaction Prohibition Act. The second defendant is in possession and enjoyment of the suit Item No.1 of the schedule mentioned property. The suit is liable to be dismissed. 6. The following issues are framed for trial : (1) Whether the plaintiff is the absolute owner of the suit property in consequence that the defendant, her men and agents are to be restrained from in any way interfering with the plaintiff's peaceful possession and enjoyment of the suit property? (2) To what relief is the plaintiff entitled for ? Additional Issue: 1) Whether the second defendant is the bona fide purchaser for the value? 7. In order to prove the case the plaintiff was examined as PW1. Through him 14 documents were marked as Ex.A1 to Ex.A14. On the side of the defendants two witnesses were examined as DW1 and DW2. No document has been marked. 8. Issue No. 1: The relationship between the parties are admitted. The first defendant is the third wife of the plaintiff. Admittedly the title deeds for the suit propertie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents to show the receipt of money from her parents, this Court has no option except to hold that the first defendant had no sufficient source to purchase the property. Considering the contribution of the plaintiff to purchase the property Ex.A14 passbook was filed by the plaintiff, on the date of Ex A3 24.10.1994 a sum of Rs 27,000 was withdrawn from the plaintiff's savings account through the witness in EX A3 namely Anbumani. Considering all those circumstances this Court finds there are chances of purchasing the property by the plaintiff in the name of the first defendant. 10. Though it appears that the property has been purchased by the plaintiff in the name of the first defendant, the law presumes it has been purchased in the name of the first defendant for the benefit of her. As per Clause 3(2)(a) of the Benami Transaction (Prohibition) Act 1988, the Court has to presume unless the contrary is proved as if the property has been purchased for the benefit of the wife or unmarried daughter. The suit property has been purchased in the name of the wife, the husband and wife lived together in the suit item 2 till dispute arose between them. So, the legal presumption is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of other properties, there are attempts to create Encumbrance by both the parties. When a main relief of declaration cannot be passed, according to law there is no need for passing consequential relief of permanent injunction. For the relief of injunction, there is no cause of action and hence this Issue No.1 is answered against the Plaintiff. 15. Additional Issue No. 1: During the pendency of the suit, the DW2 viz the second defendant has purchased the property Item No.1 on 15.5.2013. This suit was pending from the year 2009. When the suit is pending, there is no question of bonafide purchaser for value. It is clearly hit by lis pendens. She had purchased the property without the original title deed. That itself would create doubt on the second defendant's bonafide. Getting sale deed without perusing the original sale deed which is in possession of the plaintiff and filed in to the Court itself shows that the second defendant is not a bonafide purchaser. Hence this Court answers this Additional Issue against the second defendant. 16 . Issue No. 2 : In view of the discussions made to the Issue No.1 and Additional Issue No.1 this Court finds the suit is li ..... X X X X Extracts X X X X X X X X Extracts X X X X
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