JUDGMENT
D. Raju, J.
1. The above appeal has been filed under Clause 15 of the Letters Patent against the judgment of the learned Single Judge of this Court dated 25.3.1994 in A.S. No. 454 of 1982 whereunder the learned Judge has chosen to allow the appeal in part which has been filed by the defendants in O.S. No. 138 of 1980 on the file of Sub Court, Cuddalore, confirming the judgment of the trial Court in respect of other portion.
2. The appellant in the appeal, who is the daughter of one Kesava Padayachi and Solaiammal, the 1st defendant herein, is also the sister of the 2nd defendant. She filed a suit for partition and separate possession of her 1/3rd share in the suit schedule properties. The suit A schedule property comprised four parts consisting of various items of immovable properties and suit B schedule consisting of movables as described therein.
3. The case of the plaintiff as per the averments in the plaint is that the suit properties belonged to her father Kesava Padayachi who died on 30.5.1979, that the plaintiff and the 2nd defendant are the daughter and son of the said Kesava Padayachi and the 1st defendant and that Kesava Padayachi died intestate. The further case of the plaintiff was that the suit properties are the self-acquired properties of Kesava Padayachi and, therefore, on his death, each of the parties to the suit are entitled to 1/3rd share. The defendants 1 and 2 are said to be in possession realising the income from the immovable properties and also appropriating them since the date of death of Kesava Padayachi and without paying anything to the plaintiff and the unreasonable attitude taken by the defendants has driven the plaintiff to the necessity of filing the suit, for the relied noticed supra. The defendants are also, according to the plaintiff, liable to account to the plaintiff for the income and mesne profits under Order 20, Rule 18, C.P.C.
4. The 2nd defendant has filed a written statement which was adopted by the 1st respondent contending that the suit properties are not the self-acquired properties of Kesava Padayachi, that except the properties which do not belong to Kesava Padayachi’s family, as such all other properties are joint family properties and that therefore, the plaintiff will not be entitled to 1/3rd share as claimed but she would be entitled to only 1/6th share. It was also contended that on the death of Appaswamy Padayachi, father of Kesava Padaychi, the latter got certain properties as set out in the written statement and from out of the income of the said properties and also the sale proceeds realised from certain items thereof sold on behalf of Kesava Padayachi, the properties have been acquired by Kesava Padayachi for the family and that therefore, the suit properties standing in the name of the father, are the joint family properties. The written statement also disclosed the items of properties which do not belong to the family. Some of those properties are items 1 to 4 of Part 3 of plaint A Schedule, which belong to the 1st defendant and that she had settled them on her grandsons viz., the sons of the 2nd defendant and similarly item 3 of Part 4 of Plaint A schedule also belonged to the 1st defendant which also she settled on her grandsons on 10.7.1980, which settlement came to be marked as Ex. B-2. On the above claims and counter claims, the suit came to be tried and oral evidence was let in by both sides. The plaintiff examined herself on her side and the defendants examined themselves in addition to other witnesses. The plaintiff did not produce any documentary evidence and on the other hand, the defendants, produced Ex. B-1 to B-9. A Commissioner was also appointed and he filed his report and list of moveables which were marked as C-1 and C-2.
5. The learned trial Judge, by his judgment and decree dated 8.4.1982, passed preliminary decree on the view that the suit properties are the self-acquired properties of Kesava Padayachi, that the items of properties standing in the name of the 1st defendant were only purchased by Kesava Padayachi in the name of his wife benami for himself and that so far as the B schedule properties are concerned, the items specifically referred to in paras 14 and 15 were all held as belonged to the family in which the plaintiff would be entitled to 1/3rd share.
6. Aggrieved, the defendants filed A.S. No. 454 of 1982 before this Court. The learned single Judge was of the view that in view of the provisions contained in Benami Transactions (Prohibition) Act, 1988, the plaintiff is precluded from asserting the claim of benami in respect of such of those items standing in the name of the 1st defendant mother and that therefore, the judgment and decree of the trial court, in respect of items 1 to 4 of Part 3 of the plaint A schedule and item 3 of part 4 plaint ‘A’ Schedule are required to be set aside and consequently, held these and items 3 of Part 4 of plaint ‘A’ schedule properties to belong exclusively to the 1st defendant. In other respects, the appeal came to be dismissed as pointed out earlier. Aggrieved, the plaintiff has filed the present appeal.
7. Mr. M.N. Muthukumaran, learned Counsel appearing for the appellant/plaintiff, contended that the learned single Judge was in error in reversing the judgment of the trial Court in respect of items standing in the name of the 1st defendant and that the learned single Judge has overlooked the relevant provisions in which certain exceptions were recognised in the very Act and the case on hand come within the excepted categories and at any rate, the decision of the Apex Court relied upon by the learned single Judge will not apply to the case on hand. It was also contended that the 1st defendant was only holding the property as a trustee for the other heirs and the very admission made by the 1st defendant as to the manner in which those properties were acquired and subsequently, enjoyed have been over-looked and a careful analysis of those materials would go to show that the learned trial Judge was right in decreeing the suit as claimed by the plaintiff for her 1/3rd share in respect of all the items mentioned by her and countenanced by the trial Court. The learned Counsel also emphasised the fact that the 1st defendant herself has not projected any claim as if, she had purchased the property or that the same was purchased for her own benefit with her own funds and the mere fact that she has admitted in the written statement of the 2nd defendant, she herself, not being personally aware of the events of those days would not be sufficient factor for proving the claim made by the 1st defendant in herself. Per contra, Mr. K. Raghunathan, learned Counsel appearing for the respondents/defendants, while relying upon and drawing inspiration from the reasons assigned by the learned single Judge, also contended that even on the evidence on record, the plaintiff has not succeeded in properly projecting or proving the plea of benami by adducing any acceptable evidence to substantiate such a claim and that, therefore, the learned single Judge was right in coming to the conclusion that the plea of benami has to be rejected.
8. Argued the learned Counsel for the respondents further that in case of properties purchased in the name of wife by her husband, the source of funds alone is not sufficient or safe criteria to adjudge the plea of benami and it is for the person who asserts the plea of benami to plead specifically and prove that the properties purchased in the name of the wife is not with the intention of benefiting personally the wife or for her welfare and on the other hand, she was only a benami holding the same for and on behalf of the person with whose assistance the properties were said to have been purchased.
9. The learned Counsel appearing on either side drew the attention of this Court to some of the earlier decisions on the point and we consider it not necessary to advert to all those decisions, except referring to some of the relevant cases really concerning and applicable to the issues before us.
10. Mithilesh Kumar’s case on which reliance has been placed by the learned single Judge has since been overruled to the extent that the earlier decision held the provisions of Benami Transaction (Prohibition) Act, 1988 to be of retrospective or retroactive effect and consequent impact even on pending proceedings, while dealing with this aspect, in R. Rajagopal Reddy v. P. Chandrasekaran it was held that Section 4(1) of the Act cannot be applied to suit claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or any other person, if such proceeding is initiated by or on behalf of a person claiming to be the real owner thereof prior to the coming into force of Section 4(1) of the Act. It was also observed further that so far as Section 4(2) is concerned, once Section 4(2) applies to a given case, no defence will be permitted or allowed in any suit claim or action by or on behalf of the person claiming to be the real owner of such property held benami. Strong reliance has been placed by the learned Counsel for the appellant to the said subsequent ruling of the Apex Court.
11. In Nand Kishore v. Sushila it was held that the prohibition to raise the plea of benami is not applicable to the property purchased by a person in the name of his wife or unmarried daughter but at the same time, the persons so pleading must prove that the said property had not been purchased, for the benefit or welfare of such persons in order to succeed. In coming to such conclusion, their Lordships of the Apex Court adverted to Section 3(2) which provided that nothing in Sub-section (1) which in turn stipulated no person shall enter into any benami transaction, shall apply to the purchase of property by any person in the name of his wife or unmarried daughter and that it shall be presumed, unless contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter. So far as the case on hand is concerned, the plaintiff daughter who projected the plea of benami claimed that the properties have been purchased in the name of the 1st defendant by Kesava Padayachi, the father of the plaintiff and husband of the 1st defendant. The father is no more and it is not the said Kesava Padayachi who has chosen to assert such a claim that the properties have been purchased benami. The plaintiff daughter can neither claim herself to be a co-parcener nor claim that the 1st defendant is in the position of trustee or other person standing in any fiduciary capacity vis-a-vis the plaintiff in respect of such properties. In any event, for the plaintiff to succeed, she should prove that the properties concerned had not been purchased by the father (the husband of the 1st defendant) for the benefit or the welfare of the wife even though it may be shown that the consideration for the purchase of the properties had been paid by her husband.
12. Reliance was also placed by the learned Counsel for the appellant on the decision reported in Jadayal (dead) v. Bibi Manghar and it was contended that though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formula or acid tests uniformly applicable in all situations, can be laid down, yet in weighing the probabilities and for gathering the relevant indicia, the Courts are usually guided by the following circumstances : (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 in dealing with the property after the sale, and that those circumstances stated supra according to the learned Counsel for the appellant stood satisfied in this case sufficiently to warrant that the properties have been purchased by the husband in the name of his wife, benami.
13. This question as to whether a particular sale or purchase is benami has different shades or characteristics taking colour from the facts and circumstances present in each of the case before court, the parties who asserts such claim, the manner in which it is asserted and the mode of proof adopted. The essence of benami has been held to lie mainly in the, intention of the party or parties concerned and have I always been considered to be shrouded in a thick veil which cannot be easily pierced through. But such difficulties were held equally not sufficient to relieve the person asserting the transaction to be benami of the onerous burden cast upon him to prove the object or intention in acquiring such properties by anyone in the name of another, particularly as in a case wherein the purchase had been by husband in the name of his wife. The reports are replete with decisions in this regard and ultimately it is only the peculiar facts and circumstances of the case bundled together tilt the scales one side or the other. Viewed in the light of these broad principles laid down in catena of decisions, one of us (Raju, J.) had an occasion to deal with the case law on the subject elaborately after noticing not only the decisions relied upon before us in this appeal but also several other decisions relied upon before us in this appeal but also several other decisions of Division Benches of this Court in S.A. No. 524 of 1983 delivered on 11.3.1996 and it was held therein as follows:
The learned Judge of the first appellate Court also failed to keep into consideration the well settled principles of law repeatedly laid down and reiterated by Courts concerning also the normal and general presumption enuring in favour of a wife even when it is shown that the consideration really proceeded from the husband of such purchaser and that no inference can be drawn from the said factor alone that the wife was only a benamidar, having regard to the nature of the relationship between the parties and the normal tendency of the husband to benefit his wife either by payment of money or by making the purchase of the property in her name and for her benefit. As pointed out earlier in the case on hand, there is no evidence whatsoever to show that the funds which went as consideration for the purchase under Ex. A-7 was out of the funds of the joint family and in the absence of any such evidence on record even if it be assumed that the consideration flowed from the husband of P.W. 2 the inevitable presumption only would be that the husband of P.W. 2 wanted to benefit her by purchasing the property to her in her name and it cannot by itself be indicative of the fact that she was a name lender only, particularly in this case, in the teeth of only motive urged as though for avoiding land ceiling which was found to be a misnomer even according to the finding of the first appellate Court.
In taking such a view, strong reliance seems to have been placed on the decisions reported in Thangayi Ammal v. Gurunatha Gounder (1963) 2 M.L.J. 151; Krishna v. Shanmugham and Ors. (DB) ; Kandaswamy Chettiar and Ors. v. Gopal Chettiar and Ors. ; Krishnappa Naicker and Ors. v. Elumalai Naicker ; Muthuswami Gounder v. Rangammal (DB) . A careful perusal of these decisions and the principles laid down therein would go to show that the nature as well as the extent of onus as also the burden of proof will vary from case to case.
14. So far as the case on hand is concerned, it is not the case of the plaintiff that the suit properties including the items of properties standing in the name of the 1st respondent/1st defendant are the ancestral properties having joint family character even in the hands of Kesava Padayachi who undisputedly and even according to the plaintiff acquired these items. Even the 2nd defendant, who tried to project. The claim that some of the items of the properties are joint family properties in the hands of the father, Kesava Padayachi, failed to substantiate the same. If the family properties which are the subject matter of the suit for partition are the self-acquisitions of Kesava Padayachi and Kesava Padayachi has chosen to purchase some of the items in the name of his wife, apparently to benefit her, merely because the purchases were said to have been made by the husband from his funds or that it was, along with the other properties belonging to the family, enjoyed by the family itself is not a sufficient clue or evidence or basis for readily coming to the conclusion that the acquisition by Kesava Padayachi in the name of his wife, the 1st defendant, is benami. Normally, as pointed out in the series of cases referred to above The general presumption should be that the husband thought fit to purchase some of the items of the properties in the name of his wife for her benefit and welfare. Such presumption would be in our view be strong in a case where the very case of the plaintiff is that all properties belonging to the father are his self-acquisition and not that they were purchased from out of any ancestral nucleus or nucleus coming tout of the joint family or coparcenary property or funds. In such cases, Courts have been insisting upon very strong and specific claim at the instance of the defendants who project the claim of benami, making it also obligatory on the part of such person to prove the same that the acquisition was not meant to be for the benefit or welfare of the person in whose name it was acquired but it was for the family only and that the ostensible owner was merely a name-lender. In this case, there is no such plea or assertion and the evidence is also slender and practically nil from the side of the plaintiff who failed to make any specific plea as above and produce any independent evidence except examine herself on the plaintiff’s side. Except certain general admissions made by the 1st defendant as D.W-1 there is nothing in the shape of any concrete material to disbelieve the general presumption in favour of the mother in the case. The 1st defendant also appears to have, immediately after the death of her husband, asserted, her right to the property by dealing with the same and executing the settlement deed in the name of her grandsons. Consequently, we are of the view that even on merits, the plaintiff has failed to substantiate her claim that items 1 to 4 of part III of the plaint ‘A’ schedule and item No. 3 of Part IV of Plaint ‘A’ schedule standing in the name of the 1st defendant are not self acquired properties or the benefit or the welfare of the 1st defendant by her husband Kesava Padayachi but that she had been holding the properties benami for her husband or the family of her husband. We therefore, sustain the judgment and decree passed by the learned single Judge, though not for the same reasonings but on the different findings and conclusions rendered by us on merits of such a plea of benami. The appeal therefore fails and shall stand dismissed. No costs.