31 August 2004
Supreme Court
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VALLIAMMAL (DEAD) BY LRS. Vs SUBRAMANIAM

Bench: ASHOK BHAN,S.H. KAPADIA
Case number: C.A. No.-005142-005142 / 1998
Diary number: 12799 / 1997
Advocates: R. N. KESWANI Vs M. A. KRISHNA MOORTHY


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CASE NO.: Appeal (civil)  5142 of 1998

PETITIONER: Valliammal (D) by Lrs.                                           

RESPONDENT: Subramaniam & Ors.                                               

DATE OF JUDGMENT: 31/08/2004

BENCH: Ashok Bhan & S.H. Kapadia  

JUDGMENT: J U D G M E N T

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) |                                         | ------------------------------------------------------------------------------------- |                                                                                            | 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)           |                       |                                                      Amman

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iammal   Valliammal, wife                |                                                 (died on 2 2.11.2001)   (Appellant)           |                                                        Married to (died on 10.8.2001)     |                                               Chinnamalai Gounder          ----------------------------------------                                                (Appellant )                 |                                       |                               (now decease d -      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 \0261/2 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

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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

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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  Jaydayal Poddar Vs. Bibi Hazra, 1974 (1) SCC 3;  Krishnanand  Vs. State of Madhya Pradesh, 1977 (1) SCC 816; Thakur Bhim  Singh Vs. Thakur Kan Singh, 1980 (3) SCC 72; His Highness  Maharaja Pratap Singh Vs. Her Highness Maharani Sarojini Devi  & Ors., 1994 (Supp. (1) SCC 734; and Heirs of Vrajlal J. Ganatra  Vs. Heirs of Parshottam S. Shah, 1996 (4) SCC 490.  It has been  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            

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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

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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.