MANGATHAI AMMAL (DIED) THROUGH LRS & Ors. v. RAJESWARI & Ors.

1.4 On considering the Release Deed executed by N in favour of defendant no. 1 on payment of Rs.10,000/-, the inference drawn by the trial court and the High Court that therefore even the defendant no.1 also considered the share of the daughter and considered the suit properties as joint family properties and therefore plaintiffs have also share in the suit properties is concerned, is just a mis-reading and mis-interpretation of the evidence on record. In her deposition, defendant no.1 explained the payment of Rs.10,000/- to N, daughter and the Release Deed executed by her. It is specifically stated by her that though she had no share in the suit properties, with a view to avoid any further litigation in future and to be on safer side, Rs.10,000/- is paid and the Release Deed was got executed by N in favour of defendant no.1. Even in the Release Deed, it is so specifically stated. Therefore, merely because to avoid any further litigation in future and though N had no share in the suit properties, Rs.10,000/- was paid and the Release Deed was got executed in favour of defendant no.1, by that itself, it cannot be said that defendant no.1 treated the suit properties as ancestral properties and/or Joint Family Properties. [Para 9.3] [634-H; 635-A-D]

1.5 Even considering the Will executed by defendant no.1 and the subsequent revocation of the Will is suggestive of the fact that defendant no.1 all throughout treated the suit property as her self-acquired property which according to her were purchased from the Stridhana and selling of the jewellery. [Para 9.4] [635-D-E]

1.6 In the plaint the plaintiffs came out with the case that the suit properties purchased in the name of defendant no.1 by NM from the funds raised by selling the ancestral properties received by him. It was never the case on behalf of the plaintiffs that the suit properties were purchased by NM in the name of defendant no.1 out of the income received from the ancestral properties. However, considering the date of transactions with respect to the suit properties and the ancestral properties sold by NM, it can be seen that all the suit properties purchased in the name of defendant no.1 were much prior to the sale of the ancestral properties by NM. The ancestral property was sold by the NM on 11.11.1951. However, the Sale Deeds in favour of A B C D E F G H 622 SUPREME COURT REPORTS [2019] 7 S.C.R. defendant no.1 were much prior to the sale of the property. Therefore, also it cannot be said that the suit properties were purchased in the name of defendant no.1 by NM from the funds received by selling of the ancestral properties. It can be said that NM might have purchased the properties in the name of defendant no.1 in order to provide his wife with a secured life in the event of his death. It was the specific case on behalf of the defendant no.1 that the suit properties were purchased by her from the Stridhana and on selling of the jewellery. [Para 10, 11] [635-E-H; 636-A-B]

1.7 The benami transaction came to be amended in the year 2016. As per Section 3 of the Benami Transaction (Prohibition) Act 1988, there was a presumption that the transaction made in the name of the wife and children is for their benefit. By Benami Amendment Act, 2016, Section 3 (2) of the Benami Transaction Act, 1988 the statutory presumption, which was rebuttable, has been omitted. The submission that in view of omission of Section 3(2) of the Benami Transaction Act, the plea of statutory presumption that the purchase made in the name of wife or children is for their benefit would not be available, cannot be accepted. The Benami Transaction (Prohibition) Act would not be applicable retrospectively. Even otherwise, the plaintiff has miserably failed to discharge his onus to prove that the Sale Deeds executed in favour of defendant no.1 were benami transactions and the same properties were purchased in the name of defendant no.1 by NM from the amount received by him from the sale of other ancestral properties. [Para 12] [636-C-F]

1.8 Once it is held that the Sale Deeds in favour of defendant no.1 were not benami transactions, in that case, suit properties, except property nos. 1 and 3, which were purchased in her name and the same can be said to be her self-acquired properties and therefore cannot be said to be Joint Family Properties, the plaintiffs cannot be said to have any share in the suit properties (except property nos. 1 and 3). The impugned judgment and order passed by the High Court as well as the trial court holding that the plaintiffs have 3/4th share in the suit properties (except Item Nos. 1 and 3 of the suit properties) is quashed and set aside. [Para 12.1, 13] [636-F-G; 637-A-B] A B C D E F G H MANGATHAI AMMAL (DIED) THR. LRS v. RAJESWARI 623