BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 18/09/2007 CORAM: THE HONOURABLE MR. JUSTICE A.C.ARUMUGAPERUMAL ADITYAN Second Appeal (MD) No.18 of 1995 1.P.Mary Jacob - died 2.P.Prabakara Singh 3.Grace Vayolo Rosalin 4.Ramadas 5.Muthulakshmi - died 6.H.Ramathilagam (6th appellant herein brought on record as LR of the deceased 5th appellant vide M.P.No.2 of 2006 dated 18.08.2006) 7.P.J.Francis 8.P.J.Therasa 9.P.J.Elizabeth 10.P.J.Mathew 11.P.J.Philomena 12.P.J.Rose Mary 13.P.J.Joseph 14.P.J.Antony (Appellants 7 to 14 herein brought on record as LR of the deceased first appellant vide M.P.No.1 of 2007 dated 18.09.2007) ... Appellants Vs. 1.A.N.Valliammai 2.R.M.Annamalai 3.A.Valliammai 4.A.L.Nagalakshmi ... Respondents PRAYER Second Appeal filed under Section 100 of C.P.C. against the judgment and decree dated 25.07.1994 made in A.S.No.28 of 1993 on the file of the Principal District Judge, Madurai reversing the judgment and decree dated 24.04.1992 made in O.S.No.364 of 1983 on the file of the Additional District Munsif, Madurai. !For Appellants ... Mr.S.Sethuraman for the appellants 1,4, 6 to 14 Mr.M.R.Murugesan for the appellants 2 and 3 (No representation) ^For Respondents ... Mr.M.Rajaraman for R 1 and 2 Mr.V.S.Srinivasa Raghavan for R 3 and 4 :JUDGMENT
The defendants in O.S.No.364 of 1983 on the file of the District Munsif,
Madurai are the appellants herein. The plaintiffs filed the suit O.S.No.364 of
1983 for declaration of title and for consequential injunction in respect of the
suit property in Survey No.123/3 measuring one acre 75 cents.
2.According to the plaintiffs, the suit property originally belonged to
one Venkatasamy Naidu who had executed Ex.A1 sale deed dated 15.06.1923 in
favour of one Janakiammal who in turn had executed Ex.A2 sale deed dated
28.03.1962 in favour of Valliyammai Achi the wife of Ramanathan Chettiar, who
had no issues. Both valliammai and Ramanathan Chettiar adopted a son by name
Alagappan. Ramanatha Chettiyar was leading a wayward life. To protect the
suit property from Ramanathan Chettiar, Valliammai had executed Ex.A23 sale deed
in favour of D1 in benami. No sale consideration passed under Ex.A3 sale deed
and no possession was also handed over by Valliammai to D1 under Ex.A3. The
original of Ex.A2 sale deed in the name of Valliammai was also with Valliammai
and it was not handed over at the time of execution of Ex.A3 sale deed in favour
of D1. On 08.06.1966, D1 had executed a consent letter Ex.A4 undertaking deed
of re-transfer in favour of Valliammai in respect of the alleged benami sale
effected under Ex.A3. Thereafter, the first defendant left for Bangalore with
his family. Under such circumstances, Valliammai could not get a relinquishment
deed from D1 in respect of the suit property. In lieu of Ex.A4, Valliammai had
executed Ex.A16 deed of cancellation and Ex.A3 sale deed dated 06.06.1966 in
favour of D1. On 16.07.1978, Valliammai had executed a Will in favour of her
adopted son Alagappan in respect of the suit property. Patta was also
transferred in the name of Alagappan. On 08.01.1981, Alagappan had executed
Ex.A32 Gift deed in favour of the first plaintiff in respect of 55 cents and
another gift deed under Ex.A33 in favour of the second plaintiff in respect of
60 cents and on 20.08.1981, the said Alagappan had executed another gift deed
under Ex.A34 in favour of the third plaintiff in respect of 30 cents and on the
same day, the said Alagappan had executed Ex.A35 gift deed in favour of the
fourth plaintiff in respect of remaining 30 cents in the suit survey number
property. Thereafter, patta has been transferred in the name of the plaintiffs
1 to 4 and they are in possession and enjoyment of the respective properties
bequeathed under Exs.A32 to 35 respectively. The first defendant had executed a
relinquishment deed in favour of the four plaintiffs on 18.01.1983 after
receiving Rs.30,000/-. The plaintiffs have also prescribed title to the plaint
schedule property by way of their long continuous uninterrupted possession. The
first defendant had executed Exs.A47, 48, 49 and 50 (Originals Exs.B9, B10, B11
and B12) in favour of the defendants 2 to 5 in respect of the plaint schedule
property. Hence, the plaintiffs have filed the suit for declaration of title
and for permanent injunction.
3.The first defendant has not filed any written statement. The defendants
2 to 5 have filed a joint written statement contending that the plaintiffs are
not in possession of the suit property. Ex.A3 sale deed dated 06.06.1966 cannot
be said to be a benami document as per Section 281 (A) of the Income Tax Act.
Valliammai and Ramanathan Chettiar have not adopted Alagappan as their son. The
allegation that to protect the suit property Valliammai executed Ex.A3 sale deed
dated 06.06.1966 in favour of the first defendant in benami is not true. The
first defendant had purchased the suit property for valuable consideration.
Valliammai had also handed over possession of the suit property to the first
defendant after the execution of Ex.A3 sale deed. ExA3 sale deed is a genuine
document. Land tax have been paid for the suit property by Valliammai through
the first defendant. There was no necessity for the first defendant to execute
neither Ex.A4 nor Ex.A16. There was no relinquishment deed executed on
18.01.1983 by the first defendant after receiving Rs.30,000/-. The sale deed
executed by the first defendant in favour of the defendants 2 to 5 under Exs.B9
to B12 are genuine documents since the defendants are in possession of the suit
properties there is no need for them to interfere with the peaceful possession
of the plaintiffs and hence the suit is liable to be dismissed.
4.The learned trial Judge had framed 4 issues for trial. Before the trial
Court, P.Ws.1 to 5 were examined and Exs.A1 to A.64 were marked on the side of
the plaintiffs and D.Ws.1 and 2 were examined and Exs.B1 to B54 were marked on
the side of the defendants.
5.After going through the oral and documentary evidence adduced before
him, the learned trial Judge has come to a conclusion that the plaintiffs are
not entitled to any relief in respect of the suit property and accordingly
dismissed the suit without costs.
6.Aggrieved by the findings of the learned trial Judge, the plaintiffs
preferred an appeal before the learned First Appellate Judge in A.S.No.28 of
1993. After giving due deliberations to the submissions made by the learned
counsel appearing for the appellants as well as the respondents and after
scanning the evidence let in before the trial Court, the learned First Appellate
Judge has allowed the appeal thereby setting aside the findings of the learned
trial Judge, had decreed the suit as prayed for, which necessitated the
defendants to prefer this second appeal.
7.The following substantial questions of law are involved in the second
appeal for consideration:-
“a)Whether the learned District Judge was right in holding Ex.A-3 as sham
and nominal when no circumstance had been established for the purpose of such
transaction especially in favour of a total stranger unrelated to the vendor?
b) Whether the learned District Judge was right in placing reliance upon
Exs.A-6 to A-15, A-18, A-19, A-31, A-39, A-40, A-54 to A-56, when the trial
Court had categorically found that they do not bear the seal and signature of
the concerned department and appropriate authority, to prove the plaintiffs and
their predecessors-in-interest possession of the suit property?
c) In the absence of any document to prove possession of the suit property
with the vendor, Valliammai Achi, from the date of Ex.A-3, is the learned
District Judge right in placing reliance on documents long after the sale to
hold the document sham and nominal?
d)Is the learned District Judge right in upholding the validity of Ex.A-
16, the cancellation deed based on Ex.A-4, when it did not contain the signature
of the first defendant?”
8.The following additional substantial questions of law was framed on
11.04.2007:-
“Whether the learned District Judge was right in holding Ex.A.3 as sham
and nominal when no circumstance had been established for the purpose of such
transaction especially in favour of a total stranger unrelated to the vendor?”
9.Heard Mr.S.Sethuraman the learned counsel appearing for the appellants
1, 4, 6 to 14 and Mr.M.Rajaraman the learned counsel appearing for the
respondents 1 and 2 and Mr.T.Srinivasaraghavan the learned counsel appearing for
the respondents 3 and 4 and considered their respective submissions.
10.Point:-
The only point to be decided in the second appeal is whether under Ex.A3
sale deed dated 06.06.1966, the first defendant had acquired any right or title
in respect of the suit property to convey the same in favour of the defendants 2
to 5 under Exs.B9,B10, B11 and B12 sale deeds respectively. The learned counsel
appearing for the respondents would contend that after execution of Ex.A4 deed
of consent wherein Mary Jacob the first defendant had categorically admitted
that no sale consideration passed under Ex.A3 and cannot place reliance for
title right and possession under Ex.A3 and the other defendants 2 to 5 cannot
also derive any right title or possession in respect of the plaint schedule
property under Exs.B9 to B12 since the vendor herself has not derived any right
or title under Ex.A3. The learned trial Judge has rejected Ex.A4 on the ground
that the first defendant has not signed and Ex.A4 contains only facsimile
signatures of the first defendant and her husband in rubber stamp but on a
careful scrutiny of Ex.A4, would clearly go to show that Ex.A4 contains only the
signatures of the first defendant P.Mary Jacob and her husband. The learned
First Appellate Judge has rejected Ex.A3 document on the basis of the admission
in Ex.A4 by the first defendant to the effect that no sale consideration passed
under Ex.A3 sale deed. The said finding in my view does not require any
interference.
11.The learned counsel appearing for the respondents relying on (2003) 3
M.L.J. 604 (T.A.MOHIDEEN ABDUL KADIR (died) and another Vs. ABDUL RAHIM (died)
and others) would contend that burden of proof in the case of benami transaction
squarely lies upon the person alleging benami and that while determining the
benami nature of the transactions, courts are guided by the guidelines laid down
by the Supreme Court in (1994)1 S.C.C. 3. The relevant observation in the said
judgment relevant for this appeal runs as follows:-
“The main point for determination is whether the plaintiff has proved that
the suit properties were purchased benami in the name of D1 from out of the
income of M.S.Amir Moideen. The burden of proof squarely lies upon the
plaintiff to prove the benami nature. In determining the benami nature of the
transactions, the Courts are usually guided by the following circumstances:-
(i) The source from which the purchase money came;
(ii) The nature and possession of the property after the purchase;
(iii) Motive, if any, for giving the transaction a benami colour;
(iv) The position of the parties and the relationship, if any, between the
claimant and the alleged benamidar;
(v) The custody of the title deeds after the sale; and
(vi) The conduct of the parties concerned in dealing with the property
after the sale. Jaydayal Poddar v. Bibi Barra (1994) 1 SCC 3.”
12.It is the case of the plaintiffs that Valliammai had executed Ex.A3 in
respect of the suit property in favour of the first defendant in order to
protect the same from her husband who was leading a wayward life at that point
of time. Ex.A4 executed by the first defendant itself will go to show that
there was no sale consideration passed under Ex.A3. Under such circumstances,
it is clear that there was no sale consideration passed to Valliammai under
Ex.A3 to bring Ex.A3 as a valid sale deed within the ambit of Section 54 of the
Transfer of Property Act.
13.The learned counsel appearing for the respondents would contend that
the first defendant who is capable of giving evidence in respect of Exs.A3 and
A4 has stayed away from entering into the box to prove his defence, which lead
to adverse interference against him. Under such circumstances, the presumption
under Section 114 of the Evidence Act is to be drawn against him. For this
proposition, the learned counsel for the respondents would rely on AIR 1990
SUPREME COURT 1441 (VIDHYADHAR v. MANKIKRAO).
The exact dictum on this point in the above said ratio is as follows:-
“Where a party to the suit does not appear into the witness box and states
his own case on oath and does not offer himself to be cross examined by the
other side, a presumption would arise that the case set up by him is not correct
as has been held in a series of decisions passed by various High Courts and
Privy Council beginning from the decision in Sardar Gurbaksha Singh v. Gurdial
Singh AIR 1927 PC 230. This was followed by the Lahore High court in Kirpa
Singh v. Ajaipal Singh, AIR 1930 Lahore 1 and the Bombay High Court in Martand
Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh, AIR 1931 Bombay 97. The
Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore
Rawat, AIR 1970 Madh Pra 225, also followed the Privy Council decision in Sardar
Gurbakhsh Singh’s case (AIR 1927 PC 230) (supra). The Allahabad High Court in
Arjun Singh v. Virender Nath, AIR 1971 Allahabad 29 held that if a party
abstains from entering the witness box, it would give rise to an inference
adverse against him. Similarly, a Division Bench of the Punjab and Haryana High
Court in Bhagwan Dass v. Bhishan Chand, AIR 1974 Punj and Har 7, drew a
presumption under Section 114 of the Evidence Act against a party who did not
enter into the witness box.”
14.The defendants to prove their possession in respect of the suit
property have produced Exs.B3 and Ex.B13 to B34 land tax receipts. Ex.B3 is of
the year 1983. Ex.B3 land tax receipt relates to patta No.110. D.W.1 in the
cross-examination would admit that there is a correction in Ex.B2 patta and
previous name has been scored of and Mary Jacob’s name has been written. Ex.B3
is dated 02.02.1983, all the other kist receipts namely Exs.B13 to 34 are all
subsequent to the filing of the suit. In Ex.B2 the patta Number is shown as
110.
15.On the other hand, it is the case of the plaintiffs that Valliammai
had executed Ex.A17 Registered Will dated 16.07.1978 in favour of her adopted
son Alagappan. To prove Ex.A17 Registered Will, one of the attestors P.W.1, the
first witness to Ex.A17 Registered Will would depose in his evidence that
Ex.A17 Registered Will was executed by Valliammai and that at the time of
executing Ex.A17 Valliammai was in a sound disposing state of mind and that one
Vairavan is the other witness under Ex.A17 and that in his (P.W.1’s) presence
only, the said Vairavan had signed as a witness in Ex.A17 and that in his
presence, Vallimmai, the testator under Ex.A17 had signed in Ex.A17 and in her
presence only he (P.W.1) and other witness Vairavan had signed as witnesses in
Ex.A17 and thereafter, the Sub Registrar had registered Ex.A17 Will which was
executed in favour of R.M.Alagappan in respect of ‘B’ schedule property and in
favour R.M.Mutthiah in respect of “A” schedule property and in favour of
Muthalachi in respect of ‘C’ schedule property to exhibit A17. B schedule to
Ex.A17 ‘Will’ is the plaint schedule property in R.S.No.123/2 measuring one acre
75 cents. The said Alagappan, had executed Ex.A32 gift deed in favour of the
plaintiffs in respect of 55 cents in the plaint schedule property and executed
Ex.A32 gift deed in favour of the second plaintiff in respect of 60 cents and
had executed Ex.A34 gift deed dated 20.08.1981 in favour of the third plaintiff
in respect of 30 cents and Ex.A35 gift deed dated 20.08.1981
in favour of the fourth plaintiff in respect of 30 cents. Ex.A55 Adangal
Extract will go to show, mutation has been effected in the name of the
plaintiffs after Exs.A32 to A35 and RTR patta No.1042/82-83 dated 04.10.1982
has been issued in the name of the plaintiffs. It is seen from Ex.A56 copy of
the settlement register, the defendants 2, 3, 4 and 5 are in possession of
Survey No.211/2B measuring 3 cents. So, it is clear that the defendants are not
in possession of the suit property. The defendants 2 to 5’s predecessors in
title is the first defendant. Neither the defendants 2 to 5 nor the first
defendant was in possession of the suit property after execution of Ex.A3 sale
deed. Under such circumstances, I find no reason to interfere with the well
considered judgment of the learned First Appellate Judge in A.S.No.28 of 1993 on
the file of the Principal District Judge, Madurai which is neither infirm nor
illegal to warrant any interference from this court.
16.In fine, the second appeal is dismissed confirming the judgment of the
learned First Appellate Judge in A.S.No.28 of 1993 on the file of the Principal
District Judge, Madurai. Under such circumstances, there is no order as to cost.
vri
To
1.The Principal District Judge,
Madurai.
2.The Additional District Munsif,
Madurai.