ORDER
A. Ramamurthi, J.
1. The unsuccessful plaintiffs, who lost in both the Courts below, are the appellants.
2. The case in brief is as follows:- The plaintiffs filed a suit for recovery of possession as well as Rs. 1740 towards damages for use and occupation from 1.2.1987 and directing the defendant to pay Rs. 200 per month from the date of suit till delivery of possession as future damages. The house and the premises bearing door No. 10 (old No. 35), Veeraswami Pillai Street, Madras-1 belonged to P.V.Ramasamy Naidu, father of the 1st plaintiff, who had purchased the same out of his self acquisition and enjoyed it solely and absolutely. He had bequeathed the property in favour of the 1st plaintiff as well as the 2nd plaintiffs, his daughter-in-law under a Will dated 8.12.1957. The plaintiffs also obtained probate in O.P.No. 162 of 1964 and later converted into T.O.S.No. 3 of 1965 and got a probate on 9.3.1967. The defendant sought permission of the plaintiffs in 1970 to occupy a portion of the premises, who is the brother of the 1st plaintiff. The defendant was allowed to occupy a portion of the premises more fully described in the schedule. The possession is only with the leave and licence of the plaintiffs. The defendant is in occupation of three rooms measuring 229 sq.ft. The leave granted to the defendant was revoked by means of notice and he was called upon to surrender possession of the property. The defendant failed and neglected to surrender possession and, as such, he is liable to be evicted. He is also liable to pay damages for use and occupation. Hence, the suit.
3. The defendant admitted the relationship of the parties. The defendant and the 1st plaintiff are brothers and sons of late Ramasamy Naidu and Smt.Perundevi Thalliammal. The suit schedule properties are the absolute properties of the mother, who was in absolute possession and ownership till her demise in 1968. In fact, the father predeceased her in 1960. After the demise of the mother, the schedule property devolved on the children equally and absolutely. The 1st plaintiff had 1/7th share and the defendant also had 177th share in the property and both of them are in joint possession of the property and therefore, the suit filed for possession and damages is not maintainable under law. Late Ramasamy Naidu was not the owner of the property and there was no declaration or otherwise by any Court. No right or title or otherwise has been made or created or passed in favour of the plaintiffs by virtue of the Will or probate. The plaintiffs are not the sole and absolute owners of these properties. The defendant had already filed a suit for partition on the file of this Court in C.S.No. l 101 of 1998. This Court also passed an order of injunction restraining the plaintiffs and their men from in any manner interfering with the possession and enjoyment of the defendant and it is still in force. The defendant has been paying all his contribution for payment of house tax as well as electricity charges. The plaintiffs are not entitled to any relief and the suit is liable to be dismissed.
4. The trial Court framed 3 issues and one additional issue and on behalf of the plaintiffs, P.Ws.1 and 2 were examined and Exs.A-1 to A-40 were marked and on the side of the defendant, he was examined as D.W.1 and Exs.B-1 to B-22 were marked. The trial Court dismissed the suit and
aggrieved against this, the plaintiffs preferred A.S.No. 307 of 1990 on the file of VIII Additional Judge, City Civil Court, Chennai and the learned Judge after hearing the parties, dismissed the appeal. Aggrieved against this, the plaintiffs have come forward with the present second appeal,
5. At the time of admission of the second appeal, the following substantial questions of law were framed for consideration.
(1) Whether Section 3(1) of the Benami Transactions (Prohibition) Act, 1988 applies to the facts of the case or whether Section 3(2) of the aforesaid Act ?
(2) In the absence of any specific pleading or evidence or even arguments that the suit property was purchased or intended to be purchased for the benefit of the mother of the parties, whether or not the benami nature of the transaction be accepted ?
6. Heard the learned counsel for the parties.
7. The plaintiffs filed the suit against the defendant for recovery of possession as well as damages. It is admitted that the 1st plaintiff and the defendant are the sons of one Ramasamy Naidu and Perundevi Thalliammal. The 2nd plaintiff is the wife of the 1st plaintiff. It is the specific case of the plaintiffs that the suit property belonged to the father and he was in enjoyment of the same and even during his lifetime, he executed a Will under Ex.A-1 dated 8.12.1957. The father died in 1960 and the mother died in 1968. After the demise of the father, the plaintiffs filed O.P.No. 162 of
1964 for probate of the Will, which was later converted as T.O.S.No. 3 of
1965 and the plaintiffs were granted probate by the Order dated 9.3.1967. According to the plaintiffs, the defendant was permitted to occupy under leave and licence a portion of the property measuring 229 sq.ft. in 1970. The licence given to the defendant was revoked and when called upon to vacate and surrender possession, the defendant claimed that he is in joint possession of the property.
8. The defendant, on the other hand, contended that the suit property belonged only to the mother of the parties and the father had no right, title and interest in the property. Ex.A-2 is the copy of the document showing no objection given by the mother to grant probate in favour of the plaintiffs. Ex.A-3 is the consent affidavit given by the defendant. Ex.A-4 is the consent affidavit given by another brother named Chittibabu. Ex.A-5 is also a consent affidavit given by one Bangaru. In pursuance of the Will, the plaintiffs have made payment and obtained receipts under Exs.A-6 to A-14. The plaintiffs had been paying the electricity charges as well as house tax and produced Exs,A-16 to A-22.
9. The trial Court as well as the lower appellate rejected the case of the plaintiffs/appellants. The learned Senior Counsel for the plaintiffs /appellants contended that the trial Court made a wrong and erroneous
approach in holding that a prayer for declaration ought to have been made by the appellants in the suit; but the lower appellate Court went on an entirely different reasoning in holding that the provisions of the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as ‘the Act’) applies to the case on hand, which point was not urged at all before the trial Court. In view of Section 3(2) of the Act, the purchase made in the name of the mother of the parties by the father was not at all affected and the plea of benami can be well taken and urged by the appellants. The lower appellate Court also failed to see that it is not the case of the respondent either in the pleadings or in the evidence or at the time of arguments before both the Courts below that the property in question was purchased by the father of the parties only for the benefit of the mother. In the absence of any such pleading or evidence, the lower appellate Court ought to have held that the benami nature of the transaction had been amply proved. Before the suit property was purchased on 20th September 1918 under Ex.A-15, an agreement of sale was entered into by the father of the parties and the recitals will disclose that the advance amount was made only by the father and not by the mother. Even at the time of registration of the document, the entire sale consideration was made only by the father of the parties and not by the mother. Exs.A-2 and A-3 are the sworn affidavits given by the respondent as well as by the mother giving consent for grant of probate in favour of the appellants confirming the Will dated 08.12.1957. Exs.A-6 to A-14 are the stamped receipts executed by all legal heirs accepting the cash payments received from the appellants pursuant to the direction given in the Will. Ex.A-31 is the certified copy of the order of eviction obtained only by the 1st appellant against one of the tenants. The Will was never challenged and questioned at any time till the filing of the suit by any of the parties.
10. The appellants had raised the substantial question of law that whether Section 3(1) of the Act applies to the facts of the case or Section 3(2) of the Act. In the absence of any specific pleading that the property was purchased or intended to be purchased for the benefit of the mother of the parties, whether the benami nature of the transaction can be accepted.
11. It is clear from Section 16 of the Hindu Succession Act that the Court should not consider question of title or disposing power of the property. The grant of probate to the executor does not confer upon him any title to the property. Now, the appellants mainly claimed right, title and interest in the property based upon the probate granted by a Court and the consent affidavits given by the other legal heirs. Probate is only conclusive as to the appointment of executors and the validity of execution and contents of the Will. In an application for probate, it is not in the province of the Court to go into questions of title with reference to the property of which the Will purports to dispose, or the validity of such disposition. Moreover, a Court cannot refuse to grant probate of a will because the testator had no power to dispose of some or even all of the property he purported to deal with. The grant of probate is decisive only of the genuineness of the Will
propounded and of the right of the executors thereby appointed to represent the estate of the testator. It is no respect decides any question as to the disposing power of the testator or as to the existence of any disposable property.
12. Reliance is also placed on the decision reported in Hrm Nolini v. Isolyne Sarojbashini, by the respondent, wherein it has been stated as follows:
“Questions of title are not decided in proceedings for the grant of probate or letters of administration. Whatever therefore might have happened in those proceedings would not establish the title…. Now it is not in dispute that the grant of probate or letters of administration does not establish that the person making the Will was the owner of the property which he may have given away by the Will, and any person interested in the property included in the Will can always file a suit to establish his right to the property to the exclusion of the testator in spite of the grant of probate or letters of administration to the legatee or the executor, the reason being that proceedings for probate or letters of administration are not concerned with titles to property but are only concerned with the due execution of the Will”.
This decision is applicable to the case on hand in all fours.
13. Moreover, the respondent has produced number of documents to show that the suit property was treated as a family property by the appellants as well as others. Under Exs.B-1, B-13, B-17 and B-18, the plaintiffs have called upon the defendant to pay his proportionate house tax to the property. Apart from these documents, the plaintiffs had also clearly admitted under Exs.A-23, A-28 and A-29 that the property is a joint family property. These documents have come into existence after getting probate from the Court of law. The transfer of patta as well as the house tax were made only in the year 1987. P.W.1 himself had admitted in the course of evidence that excepting Ex.A-1, there is no other document to establish that the suit property belongs to them. In view of the reasons stated above, it is evidently clear that the grant of probate alone will not confer any valid title in favour of the appellants / plaintiffs.
14. The learned senior counsel for the appellants relied on George Thomas v, Srividya and Anr., , a Bench decision of this Court. In para 35, it has been stated as follows:
(i) The burden of proof to establish the benami transaction shall lie only on the person who pleads the same;
(ii) The determination of the plea of benami must rest on legal grounds established by legal testimony;
(iii) What are the legal grounds established by legal testimony shall be based on the following:
(a) the source of purchase money relating to the transaction.
(b) possession of the property after the purchase.
the relationship of the parties at the time of purchase and thereafter.
(d) motive for such benami transaction.
(e) previous and subsequent conduct of the parties”.
15. It has been held in Kistappa Naicker and Ors. v. Elumalai, 89
LW 57 las follows:
“It has been repeatedly held by this Court that when a husband purchased the property in the name of his wife by paying his own money, from that alone, no inference can be drawn that the wife was only the benamidar, and having regard to the nature of the relationship between the parties, and the normal tendency of the husband to benefit the wife either by payment of money or by purchase of property in her name, the allegation of benami can be established only by providing the motive for such benami purchase”.
This decision is applicable to the case on hand and will be an answer to the contentions raised by the learned senior counsel for the appellants that the advance money as well as purchase money had flown from the father of the party and not from the mother.
16. The learned counsel for the respondent relied on Kamakshi Animal v. Rajalakshmi and Ors., Section 3 of the Act, wherein it has been held as follows:
“Purchase of property in the name of wife or unmarried daughter is not a benami transaction. There is a mandatory presumption that such a transaction is for the benefit of the wife or unmarried daughter. The burden is on the person alleging benami transaction to rebut the presumption and prove that the transaction was not for the benefit of such persons”.
This decision is also applicable to the case on hand.
17. The learned counsel for the respondent also relied upon Section 3 of the Act relating to prohibition of benami transaction and Sub-sections (1) and (2) read as follows:
(1) No person shall enter into any benami transaction.
(2) Nothing in Sub-section (1) shall apply to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter.
18. It is, therefore evidently clear that if the property was purchased either in the name of his wife or unmarried daughter, there is a presumption,
unless the contrary is proved, that the property is purchased only for their benefit. So far as the present case is concerned, the appellants have not let in any evidence to show that the property was purchased benami in her name, but it was intended to benefit only the father. There is also no pleading in the plaint to show that the sale deed was taken benami in the name of the mother of the parties and the property was purchased only for the benefit of the father of the parties. In view of Section 3(2) of the Act, there is a presumption in favour of the mother of the parties and that presumption has not been rebutted by the appellants by adducing any positive evidence. Moreover, most of the records filed after getting the probate also clearly establish that the appellants were treating the property as the family property. There is also no material to come to the conclusion that the defendant was let into possession under leave and licence by the appellants. Ex.A-25 is a letter sent by the 1st plaintiff to the Chairman, Taxation Appellate Committee, Corporation of Madras that the house is under owner’s occupation only and the brothers are also put up in the same house. Similarly, under Ex.A-28 dated 31.8.1977, the 1st plaintiff wrote to the Commissioner, Corporation of Madras, wherein it is stated as follows:
“The entire house is under owner occupation only being shared by my own brothers each running a separate family”.
These communications sent by the 1st appellant to the statutory authorities after Ex.A-1, is one more circumstance to show that the property belonged only to the mother and, as such, the suit filed by the appellants for recovery of possession is not maintainable. In fact, the respondent/defendant already filed a suit for partition of the property and the same is pending. The respondent had positively established that he is in joint possession of the property along with the 1st appellant and, as such, both the Courts below rightly rejected the case of the appellants. There is no reason to interfere with the concurrent finding given by the Courts below based on legal evidence and sound material.
19. For the reasons stated above, the Second Appeal fails and is dismissed. No costs. Consequently, CMP No. 1162 of 2003 is closed.