Valliammal Vs. Subramaniam
& Ors [2004] Insc 507 (31 August 2004)
Ashok Bhan & S.H. Kapadia
Bhan, J.
Aggrieved against the judgment and decree passed by the High Court of
Judicature at Madras in Second Appeal No. 1324 of 1983 wherein the High Court
while reversing and setting aside the concurrent judgments of the two courts
below has dismissed the suit which had been decreed by the courts below, the
plaintiff/appellants have filed the present appeal (now represented through
L.Rs.).
Since the dispute is between the members of the family it would be useful to
refer to genealogy of the family, which is as under:
ANGAPPA GOUNDER DIED 1904 (When Malaya Gounder was 10 years old) | |
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| | Malaya Gounder Marappa Gounder Plaintiff (Died on 23.6.1983) (Died in 1923)
| | Ramayee Ammal (wife) Nachayyee Ammal (Died on 2.1.1979) (Died in 1925) | |
| | ----------------------------------------------------------------------- | |
| | | | (son) (daughter) (daughter) (daughter) | Muthusamy Valliammal
Ammaniammal Angayammal | (died in 1943) (Died in 1940) Married to Married to |
(Issueless) married Karuppana V.A.Kalappa | | Chinnasamy Gounder Gounder | |
Gounder (Defendant) (Defendant) | | (died on 18.7.1982) (daughter) | |
Ammaniammal Valliammal, wife | (died on 22.11.2001) (Appellant) | Married to
(died on 10.8.2001) | Chinnamalai Gounder
---------------------------------------- (Appellant ) | | (now deceased -
Subramanian Samiathal through Lrs.) (Defendant) (Defendant) | |
------------------------------------------------------ | | | Ponnammal
P.C.Palanisamy P.C.Kandasamy (Appellant) (Appellant) (Appellant) Original
plaintiff Malaya Gounder died after the disposal of the first appeal. Respondents
who filed the appeal in the High Court impleaded Ammaniammal daughter of the
brother of the original plaintiff and Valliammal, daughter-in-law, wife of the
pre-deceased son Muthusamy as the legal representatives of Malaya Gounder on
the basis of an alleged will executed by him in their favour.
Valliammal died intestate without any issue during the pendency of the
appeal in this Court on 10.8.2001 and after her death her share has devolved on
the defendants/respondents being the nearest collateral. Ammaniammal also died
on 22.11.2001 and is now represented through her children.
The land measuring 10.37 1/2 acres (suit land) belonged to Malaya Gounder,
plaintiff and his younger brother, Marappa Gounder. Marappa Gounder stood
guarantee for his Uncle Chinnamalai Gounder in a loan transaction advance by
one Samasundaram Chettiar who was a money-lender for a sum of Rs.
200/-. Samasundaram Chettiar filed a suit being OS No. 338 of 1925 against
Chinnamalai Gounder as well as the guarantor. Marappa Gounder died in the year
1923 and was succeeded to by his brother Malaya Gounder, as the legal
representative of Marappa Gounder.
Suit was decreed against the debtor as well as the guarantor. They were made
jointly liable. Suit land was sold on 1.8.1927 in the auction to satisfy the
decree passed in OS No. 338 of 1925. Land was purchased by one Chockalingam
Chettiar. Chockalingam Chettiar could not get physical possession of the land,
however, he was given the symbolical possession.
The suit land was purchased by Ramayee Ammal wife of Malaya Gounder,
original Plaintiff, for a consideration of Rs. 500/- on 5.12.1933. Ramayee
Ammal executed a registered will in favour of her daughters the
defendants/respondents herein. Ramayee Ammal died on 2.1.1979.
Malaya Gounder, after the death of his wife filed the present suit for
declaration and permanent injunction against his daughters with the averments
that long after the auction sale the plaintiff Malaya Gounder approached
Pattayakkaarar, who was kind enough to pay a sum of Rs. 500/- to Chockalingam
Chettiar in full and final settlement of the decreetal debt in O.S. No. 388 of
1925.
Chockalingam Chettiar in turn sold the suit land which he had purchased in
court auction in favour of Ramayee Ammal, wife of the plaintiff on 5.12.1933.
The sale consideration for the same was paid through Ramiah Pillai, the
Secretary of Pattayakkaarar. It was alleged that he got the sale deed executed
in favour of his wife as a benami as he thought it would not be safe for him to
get the sale deed executed in his name as some creditors of Marappa Gounder may
not create a problem in future. It was further averred that the property was
all along in his possession and that he continued to encumber the property as
its owner. He mortgaged the same to co- operative society. He treated the
property to be ancestral. Even a partition had taken place between the
plaintiff and his co-sharers. In these documents, the suit land was treated as
an ancestral property and his wife neither objected to the partition nor
claimed any share in it. That his wife knew that she was only a name-lender,
and did not claim the property to be hers. Original Plaintiff Malaya Gounder's
son Muthusamy died issueless and his wife Valliammal was also residing with
him. After the death of Ramayee Ammal on 2.1.1979 the daughters started
claiming right over the property and tried to trespass into the same. Plaintiff
resisted their action and neighbours intervened and supported his claim. Suit
was filed to establish his title over the suit land and to get an injunction
restraining the defendants from disturbing his peaceful possession.
In the written statement filed by the defendants/respondents the claim of
the original plaintiff over the suit land was disputed.
According to them, plaintiff was not the owner of the suit land. After the
court sale, Ramayee Ammal being the vendee from auction purchase became the
absolute owner. She executed a will and bequeathed the suit land in their
favour. The case put forth by the plaintiff that the property was purchased in
the name of Ramayee Ammal as benami on his behalf to safeguard the same from
some other creditors of Marappa Gupunder was denied. According to them, the
brothers of Ramayee Ammal who were well to do provided money and helped her in acquiring
the suit land. Regarding the mortgage and the partition effected by the
plaintiff it was averred that the same were fraudulent transactions without the
knowledge of the real owner. If Ramayee Ammal was not the real owner, she would
not have executed the registered will in their favour on 28.1.1974.
Accordingly, it was prayed that the suit be dismissed.
Trial Court after taking into consideration evidence both oral and
documentary into consideration decreed the suit and held that Ramayee Ammal was
holding the property benami on behalf of the Malaya Gounder, the original
plaintiff. It was also held that the property continued to be in possession of
the Malaya Gounder in spite of court sale and he alone was dealing with the
same as the owner. Trial Court held that the plaintiff had purchased the
property in the name of his wife Ramayee Ammal apprehending that other
creditors of Marappa Gounder might move against the plaintiff as he was the
legal representative of his brothers. Judgment and decree of the trial Court
was confirmed in the appeal by the first Appellate Court.
After the decision of the first Appellate Court original plaintiff Malaya
Gounder died and the defendants/respondents filed the appeal in the High Court
impleading Ammaniammal (brother's daughter) and Valliammal (daughter-in-law) as
his legal representatives on the basis of the alleged will executed by him in
their favour. Substantial question of law framed in the second appeal was:
"Whether the courts below have wrongly cast the onus of proving the
benami nature of the sale on the defendants and further more whether they have
failed to apply the various tests laid down by the Supreme Court for
determination of the question whether the sale in favour of Ramayee was a
benami transaction?" The High Court set aside the findings recorded by the
courts below and held that the plaintiff had failed to prove that he had
purchased the property in the name of his wife as a benami. He failed to prove
that he had provided the money for the purchase of the suit land in the name of
his wife. He had also failed to prove that Pattayakkaarar provided the money
for the purchase of the suit land in the name of his wife on his behalf or that
he had repaid the money later to Pattayakkaarar. Considering all these
circumstances, the High Court came to the conclusion that the trial court and
the first Appellate Court misconceived and misconstrued the evidence and
committed grave error in decreeing the suit. The findings recorded by the
courts below were set aside being perverse and not sustainable in law.
Counsel of the parties have been heard at length.
There is a presumption in law that the person who purchases the property is
the owner of the same. This presumption can be displaced by successfully
pleading and proving that the document was taken benami in the name of another
person from some reason, and the person whose name appears in the document is
not the real owner, but only a benami. Heavy burden lies on the person who
pleads that the recorded owner is a benami-holder.
This Court in a number of judgments has held that it is well- established
that burden of proving that a particular sale is benami lies on the person who
alleges the transaction to be a benami. The essence of a benami transaction is
the intention of the party or parties concerned and often, such intention is
shrouded in a thick veil which cannot be easily pierced through. But such
difficulties do not relieve the person asserting the transaction to be benami
of any part of the serious onus that rests on him, nor justify the acceptance
of mere conjectures or surmises, as a substitute for proof. Referred to &
Ors., 1994 (Supp. (1) SCC 734; and Heirs of Vrajlal J. Ganatra held that in the
judgments referred to above that the question whether a particular sale is a
benami or not, is largely one of fact, and for determining the question no
absolute formulas or acid test, uniformly applicable in all situations can be
laid. After saying so, this Court spelt out following six circumstances which can
be taken as a guide to determine the nature of the transaction:
1. the source from which the purchase money came;
2. the nature and possession of the property, after the purchase;
3. motive, if any, for giving the transaction a benami colour;
4. the position of the parties and the relationship, if any, between the
claimant and the alleged benamidar;
5. the custody of the title deeds after the sale; and
6. the conduct of the parties concerned in dealing with the property after
the sale." The above indicia are not exhaustive and their efficacy varies
according to the facts of each case. Nevertheless, the source from where the
purchase money came and the motive why the property was purchased benami are by
far the most important tests for determining whether the sale standing in the
name of one person, is in reality for the benefit of another. We would examine
the present transaction on the touchstone of the above two indicia.
Plaintiff's case was that he had purchased the suit land in the name of his
wife in order to screen the property from the creditors of his brother. The
names of the creditors were not given in the plaint.
The plaintiff averred that one Pattayakkaarar paid consideration for the
purchase of the suit land. The relevant passage from the plaint as follows:
"Thereafter the plaintiff approached the Pattakkarar again and he was
kind enough to pay Rs. 500.00 to Chokkalingam Chettiar in full settlement of
the claim. The payment was made through Ramiah Pillai, the Secretary of
Pattakkarar. In pursuance of the Settlement, Chokkalingam Chettiar executed a
sale deed on 05.12.1933 with regard to the entire suit properties reciting
therein that he had received the sale consideration from Ramaiah Pillai. When
taking the sale deed, plaintiff thought that it will not be safe to have the
sale deed executed in his favour, as some other creditors of Marappa Gounder
might again give trouble and therefore the sale deed was taken benami in the
name of his wife Ramayee Ammal." In law title to the property vests in the
person in whose favour the sale deed has been executed. Therefore Ramayee Ammal
was the absolute owner of the property. By a registered will dated 28.1.1974
she bequeathed the suit land to her daughters defendants/respondents. The
presumption in favour of Ramayee Ammal could be displaced only if her husband
Malaya Gounder, the original plaintiff, was able to prove that there were
circumstances which warranted the purchase of the property benami in the name
of his wife. The plaintiff, in order to prove that he was the real owner of the
property was required to show that there were valid reasons for purchase of the
property in the name of his wife and that he had paid the money for the
purchase of the land. Plaintiff in his evidence as PW1 admitted that neither
his brother nor he himself had any creditors in the year 1933 when the land was
purchased by his wife Ramayee Ammal. Therefore, the reason given by him for the
purchase of the land in the name of his wife is not plausible. It also appears
from his deposition that he had some other pieces of land in another village
which were recorded in his name. Names of prospective creditors have not been
disclosed. If there were any unsatisfied creditors then they would have
proceeded against the plaintiff for the recovery of their money by attachment
or sale of the land held by him in other village. Action took place in 1927.
Land was purchased by Ramayee Ammal in the year 1933. During these six years no
other creditors had come forward to claim any money against him or his uncle
for whom the guarantee was given by his brother. Debt, if any, would have
become time barred. Even after 1933 no creditor came forward with any claim.
Marappa Gounder, brother of the plaintiff died in 1923. The property was sold
in execution of the decree in the year 1927 and the sale deed in favour of
Ramayee Ammal, the wife of the plaintiff was executed in the year 1933.
Apprehension of the plaintiff that some other creditors of Marappa Gounder
might proceed against the plaintiff is totally unjustified. The case put up by
the plaintiff that he purchased the land in the name of his wife benami does
not seem to be plausible.
The plaintiff did not provide any money for the purchase of the land in the
name of his wife. Neither in the plaint nor in his deposition the plaintiff
explained satisfactorily when the money was provided by a third person. Neither
the person who alleged to have paid the money nor anyone else on his behalf has
examined as a witness.
Therefore, it cannot be held that Pattayakkaarar or anyone else paid the
consideration on behalf of the plaintiff. It is not even averred by the
plaintiff that Pattayakkaarar provided money on his behalf or that he repaid
the money to him later.
It is well settled that intention of the parties is essence of the benami
transaction and the money must have bean provided by the party invoking the
doctrine of benami. The evidence shows clearly that the original plaintiff did
not have any justification for purchasing the property in the name of Ramayee
Ammal. The reason given by him is not at all acceptable. The source of money is
not at all traceable to the plaintiff. No person named in the plaint or anyone
else was examined as a witness. The failure of the plaintiff to examine the
relevant witnesses completely demolishes his case.
Since the original plaintiff failed to prove that he had provided the money
for the purchase of the land and the reasons why he purchased the property
benami in the name of his wife, the High Court has come to the right conclusion
that Ramayee Ammal did not hold the property as benami on behalf of her husband
Malaya Gounder.
For the reasons stated above, we do not find any merit in this appeal and
dismiss the same with no order as to costs.
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