Kaliammal(died) v. S.K.Subramanian & Ors.

JUDGMENTThis appeal is focussed as against the judgment and decreedated 1.7.1996 passed by the Subordinate Judge, Bhavani in O.S.No.21of 1996, which is a suit for partition. For convenience sake theparties are referred to here under as per their letigative statusbefore the trial Court.2. Niggard and bereft of details, the case of the plaintiff asstood exposited from the plaint could be portrayed thus:(a) The deceased Karuppagounder and D1-Kaliammal (since diedduring the pendency of the appeal) gave birth to two sons and threedaughters, namely, S.K.Subramanian-the plaintiff, D2-S.K.Ramasamy,D3-Parvathi, D4-Mariammal and D5-Dhanalaxmi. The saidKaruppagounder died on 17.2.1994 intestate.(b) The agricultural land measuring an extent of 1.64 acres inJambai Village of Bhavani Taluk was allotted to the share of thedeceased Karuppagounder, in the partition effected between him andhis brother and mother. As such, the said agricultural propertyconstituted the ancestral coparcenary property of the co-parcenery,comprised of Karuppagounder and his two sons, namely, the plaintiffand D2 herein. (c) From out of the income derived from it Karuppagounderpurchased the house site on 6.1.1958, whereupon he raised a houseand leased it out to various tenants and earned income. Theplaintiff being a lorry driver, earned sufficiently and contributedfor the welfare of the joint family and augmented the coparcenaryincome. (d) Karuppagounder was doing firewood business. On 20.10.1999,the plaintiff's father-Karuppagounder purchased the plot area in thesuit property, described in the schedule of the plaint, from out ofthe joint family funds in the name of D1, his wife. The saidproperty was purchased benami in the name of D1, which was intendedto confer any benefit to D1. In law, the suit property happened tobe the coparcenary property. (e) D1 had no financial ability to purchase any property muchless the said plot, over which the joint family had put upsuperstructure for being used as houses and shops. (f) The ancestral agricultural properties were sold as per saleDeed dated 6.1.1958. A portion of such sale proceeds was utilisedfor putting up additional constructions in the suit property. The https://hcservices.ecourts.gov.in/hcservices/ plaintiff with his wife and three daughters living separately in apart of the suit property. Whereas D2 with his son and daughterliving in another portion of the suit property. The parents of theplaintiff were much attached towards the second defendant's family.(g) D6 to D12 are the tenants occupying various portions in thesuit properties and Karuppagounder, during his life time collectedrents from them. After his death, within a period of six months,dispute erupted between the plaintiff and defendants 1 to 5 insharing the rents accruing from part of the suit properties. Hence,the suit for partition claiming 7/18th share in the suit properties.3. Remonstrating and denying, gainsaying and disputing theallegations/averments in the plaint, D1 filed the written statement,which was adopted by D3, the gist and kernal of them would runthus:-(i) Karuppagounder and his two sons did not constitute HinduCo-parcenary family. Karuppagounder during his life time sold theonly land belonged to him. The said agricultural land, whichKaruppagounder got in the partition was not a Nanja land and noincome was derived out of it. Karuppagounder had big familycomprised of two sons and three daughters and he could not havesaved money. As such, the averments in the plaint as though fromout of the joint family income the properties were purchased andconstructions were raised are all false. (ii) The plot area of the suit property was purchased by D1 asper Sale Deed dated 20.10.1959 from out of her own sources, as shewas doing retail business in vegetables and wholesale business intomatos and derived income. She also sold her 15 sovereign ofjewels, which she got from her mother. As such, from out of her ownsources she purchased the plot area of the suit property. Theconstructions were raised on the said plot by D1 from her own fundsby raising loans from Bhavani Co-operative House Mortgage Co-operative Bank.(iii) D1's daughters namely D4 and D5 each gifted 10 sovereignsof gold jewels so as to enable D1 to raise funds with that and putup construction over the said plot. D3 had matrimonial dispute withher husband and whereupon she did business in tomato and othervegetables and earned sufficiently and living under the care of D1,by contributing her income to D1. (iv) D1 also incurred debts from 3rd parties for putting upsuch construction and she discharged them. She also participated inseveral chit transactions and earned money. D1 permitted theplaintiff to occupy a portion of the suit property out of pity https://hcservices.ecourts.gov.in/hcservices/ towards him. D1 executed a registered Will on 17.1.1994 bequeathingthe suit properties in favour of her grant son Dhatchanamoorthy-theson of D2. The superstructure in the suit property stands in thename of D1 only and the water and electricity connections are in hername and she has been paying the house tax also. The tenants in thepart of the suit properties were inducted only by D1 herein and shehas been collecting rents from them. During the life time ofKaruppagounder and D1, the plaintiff tortured and man-handed themdemanding money for his nefarious activities. Accordingly D1 prayed for dismissal of the suit.4. The warp and woof of the written statement filed by D2,which was adopted by D4 and D5, would run thus:-Karuppagounder had no firewood business of his own during theyear 1959. Between 1962 and 1965 he had small firewood shop, but hecould not run that shop profitably. Hence, he closed down thebusiness. D1 purchased the plot area of the suit property from outof her own sources with the notion that she should have a propertyof her own. As such, D2 filed the written statement in support of the standtaken by D1 in her written statement.5. D12 filed the written statement, which was adopted by D6 toD11, the nitty-gritty of them would run thus:-The defendants were inducted into the suit property only by D1and they have been paying rents only to her. Karuppagounder hadnothing to do with the tenancy and he did not collect rent from themduring his life time. Accordingly, they prayed for the dismissal of the suit.6. D1 filed the addition written statement, the warp and woofof it would run thus:-The agricultural land in Jambai Village referred to in theplaint constituted the separate property of Karuppagounder, as perthe partition deed dated 14.7.1954, which emerged between himselfand his uterine-brother and his mother, as he got the same towardshis share. In fact, they were not co-parceners and consequently,the said agricultural land cannot be taken as the ancestralproperty, which Karuppagounder got in the partition. Karuppagoundertreated the said property as his separate property only. Accordingly, she prayed for the dismissal of the suit.7. The trial Court framed the issues. During trail, theplaintiff examined himself as P.W.1 and Ex.A1 to Ex.A33 were marked.On the side of the defendants, the first defendant examined herselfas D.W.1 and Ex.B1 to Ex.B8 were marked. https://hcservices.ecourts.gov.in/hcservices/

8. Ultimately, the trial Court decreed the suit allotting7/24th share in favour of the plaintiff.9.Being aggrieved by and dissatisfied with the judgment anddecree of the trail Court, the first defendant filed the appeal.During pendency of the appeal, the first defendant died,consequently the legatee of her 'Will' namely, Dhatchanamoorthy cameon record. Tersely and briefly the grounds of appeal would runthus:-(a) the suit filed by the plaintiff was hit by Section 4 of theBenami Transactions (Prohibition) Act 1988(Act 45 of 1988).(b) The lower Court, without considering that even if theproperty had been purchased in the name of the wife, still thebenami nature of the transaction could be proved that at the time ofpurchase of the said property, it was not intended to benefit thewife, but for the benefit of the person who paid the sale price.(c) ignoring the fact that Karuppagounder had no financialcapability to purchase any property or put up any construction, thetrial Court held otherwise.(d) no evidence has been adduced to prove that the suitproperty was purchased from out of the alleged joint family funds.(e) Disregarding the fact that D1 from out of her own sourcespurchased the plot as well as put up construction, the lower Courtdecreed the suit in favour of the plaintiff.(f) Karuppagounder during his life time never treated the suitproperty as his own property; but the documentary evidence on theside of the defendants established that the suit property wastreated as an exclusive property. Accordingly, D1 prayed for setting aside of the judgment and decreeof the trial Court and consequently for the dismissal of theoriginal suit.10. The points for consideration are as to:(i) Whether the plot area of the suit property waspurchased and constructions were made thereon from out ofthe joint family income of the co-parcenary, whichcomprised of Karuppagounder and his two sons? or whetherthe suit property is the absolute property of D1?(ii) Whether the embargo as envisaged under the provisionsof the Benami Transactions (Prohibition) Act 1988 wouldoperate as against the plaintiff's case?(iii) Whether there is any infirmity in the judgment anddecree of the trial Court.Point Nos.1 and 2:These points are taken together as they are inter-linkedand inter-woven with each other. https://hcservices.ecourts.gov.in/hcservices/

11.The warp and woof of the argument of the learnedcounsel for the plaintiff is that during the life time of KaruppaGounder, absolutely there was no dispute relating to the propertybeing the co-parcenary property; consequently there had been nonecessity for the plaintiff to get any partition effected among theco-parceners, namely Karuppa Gounder, the plaintiff and D2 the co-parceners; within a short time after the death of Karuppa Gounder,bad blood started running in the relationship between the plaintiffon the one side and the defendants 1 and 2 on the other side whichnecessitated the plaintiff to file the suit for partition; D1 themother of the plaintiff had no financial wherewithal to purchaseeither the plot area of the suit property or put up constructionthereon and the suit property is out and out the co-parcenaryproperty which was acquired from out of the co-parcenary income inthe name of the first defendant not to benefit her, but to benefitthe entire co-parcenary family.12.Animadverting upon the argument as put forth on the sideof the plaintiff, the learned counsel for the appellant put acrosshis argument which is pithily and precisely to the effect thatKaruppa Gounder had no financial wherewithal to purchase anyproperty, much less the plot area of the suit property and put upconstruction thereon; the alleged agricultural property cannot betreated as ancestral property; furthermore it was not fetching anyincome and it was also sold by all the three namely, KaruppaGounder, the plaintiff and his two sons; the plaintiff had nosufficient income at all to contribute anything so as to augment thealleged joint family income; the records relating to the suitproperty are all speaking in the name of the plaintiff and theprovisions as contemplated under the Benami Transaction(Prohibition) Act, 1988 would squarely applicable as against thevery case of the plaintiff for the reason that there is no iota orshred of evidence available on the plaintiff side to prove that thesuit property was acquired in the name of the first defendant not tobenefit her, but for the benefit of the entire family.13.At this juncture, it is just and necessary to refer to thelegal position relating to benami transactions. Indubitably andindisputably, the suit was filed during the year 1995, so to saylong after the commencement of Benami Transaction (Prohibition) Act,1988. As such, for the purpose of this case, Sections 3 and 4 ofthe Act are required to be considered in depth. In fact, both sidesare not at variance relating to the current legal view governing theconcept benami and its prohibition as envisaged under the BenamiTransaction (Prohibition) Act, 1988. The following are the relevantprecedents: https://hcservices.ecourts.gov.in/hcservices/ (i)An excerpt from the decision reported in 1995 (4) SCC 572[Nand Kishore Mehra v. Sushila Mehra] would run thus:6. Sub-section (1) of Section 3, as seen, prohibits aperson from entering into any benami transaction. Sub-section (3) of Section 3, as seen, makes a person whoenters into a benami transaction liable for punishment.Section 5 makes properties held benami liable foracquisition without payment of any amount. But, when sub-section (2) of Section 3 permits a person to enter into abenami transaction of purchase of property in the name ofhis wife or unmarried daughter by declaring that theprohibition contained against a person in entering into abenami transaction in sub-section (1) of Section 3, doesnot apply to him, question of punishing the personconcerned in the transaction under sub-section (3) thereofor the question of acquiring the property concerned in thetransaction under Section 5, can never arise, as otherwisethe exemption granted under Section 3(2) would becomeredundant. What we have said of the person and theproperty concerned in sub-section (2) of Section 3 inrelation to non-applicability of Section 3(3) and Section5 shall equally hold good for non-applicability of theprovisions of sub-sections (1) and (2) of Section 4 in thematter of filing of the suit or taking up the defence forthe selfsame reason. Further, we find it difficult to holdthat a person permitted to purchase a property in the nameof his wife or unmarried daughter under sub-section (2) ofSection 3 notwithstanding the prohibition to enter into abenami transaction contained in sub-section (1) of Section3 cannot enforce his rights arising therefrom, for to holdso would amount to holding that the statute which allowscreation of rights by a benami transaction also prohibitsthe enforcement of such rights, a contradiction which cannever be attributed to a statute. If that be so, there canbe no valid reason to deny to a person, enforcement of hisrights validly acquired even in the past by purchase ofproperty in the name of his wife or unmarried daughter, bymaking applicable the prohibition contained in respect offiling of suits or taking up of defences imposed inrespect of benami transactions in general by sub-sections(1) and (2) of Section 4 of the Act. But, it has to bemade clear that when a suit is filed or defence is takenin respect of such benami transaction involving purchaseof property by any person in the name of his wife orunmarried daughter, he cannot succeed in such suit ordefence unless he proves that the property althoughpurchased in the name of his wife or unmarried daughter,the same had not been purchased for the benefit of either https://hcservices.ecourts.gov.in/hcservices/ the wife or the unmarried daughter, as the case may be,because of the statutory presumption contained in sub-section (2) of Section 3 that unless a contrary is provedthat the purchase of property by the person in the name ofhis wife or his unmarried daughter, as the case may be,was for her benefit. 7. Therefore, our answer to the question underconsideration is that neither the filing of a suit nortaking of a defence in respect of either the present orpast benami transaction involving the purchase of propertyby a person in the name of his wife or unmarried daughteris prohibited under sub-sections (1) and (2) of Section 4of the Act.(ii)An extract from the decision of the Hon'ble Apex Courtreported in 1998(1) LW 346 [Rebti Devi v. Ram Dutt and another]would run thus:9. This Court referred to R. Rajagopal Reddy's case(1995 (2) SCC 630 = 1995-1-L.W.427). The plaint beingsubsequent to 17-5-1988, the principle that the Act wasnot retrospective as stated in R. Rajagopal Reddy's casewas no doubt initially not attracted to that case. Thatwould mean that Section 4(1) applied unless of course thecase fell within the exceptions stated either in Section 3(2) or in Section 4(3) of the Act. In that case, thisCourt permitted the plea of benami in a post-19-5-1988suit, because the Court was concerned with the exceptionin Section 3(2). The Court also incidentally referred tothe other exceptions falling under Section 4(3). ThisCourt in that case noticed that the purchase was on 24-4-1964 and was in the name of the wife. That was why thisCourt proceeded to refer to the exception in Section 3(2)which concerns benami purchases in the name of a wife orunmarried daughters. This Court also referred to thepresumption contained under the same exception in Section3(2) to the effect that unless the contrary was proved, inthe cases of purchases in the name of a wife or unmarrieddaughters, it shall be presumed that the property had beenpurchased for the benefit of the wife or the unmarrieddaughters. In view of the exception in Section 3(2), theprohibition under Section 3(1) was held not to apply. Itwas held that even though the plaint was filed after 19-5-1988 such a plea of benami was not shut out. This Courtdirected that the suit be disposed of, of course, byapplying the statutory presumption contained in Section 3(2) which is to be mandatorily drawn but which isrebuttable. The plaintiff in a suit filed after 19-5-1988could still prove that the property had not been purchasedby him for the benefit of his wife and he could rebut the https://hcservices.ecourts.gov.in/hcservices/ presumption and claim that he was the real owner.10. Therefore, to the six principles hereinbeforeculled out from R. Rajagopal Reddy's case, the followingfurther principles decided in Nand Kishore Mehra's casecan be added:“(7) Seventhly, if in a suit, claim or action, a plea ordefence based on benami is raised even after 19-5-1988 andthe purchase is in the name of a wife or unmarrieddaughter, such a plea of benami is permissible and R.Rajagopal Reddy's case will not come in the way merelybecause the plea is raised after 19-5-1988. Such a plea ifraised, will however have to be decided taking intoaccount the statutory presumption laid down in Section 3(2). This is because the Act says that if the purchase isin the name of the wife or unmarried daughter, theprohibition in Section 3(1) will not apply. Section 3(2)is enacted as an exception to the provisions in the Actand does not depend for its interpretation on the questionas to what extent Sections 4(1) and 4(2) areretrospective.(8) Eighthly, if the case falls within the exception inSection 4(3)(a) i.e. where the person in whose name theproperty is held is a coparcener in a Hindu UndividedFamily and the property is held for the benefit of thecoparceners in the family, or where as stated in Section 4(3)(b) the person in whose name the property is held is atrustee or other person standing in a fiduciary capacityand the property is held for the benefit of another personfor whom he is a trustee or towards whom he stands in suchcapacity, then in both situations if such a plea ordefence is raised in a suit filed after 19-5-1988, thesame can be decided by the Court notwithstanding Section 4(1) or 4(2) and notwithstanding what is decided in R.Rajagopal Reddy's case.”11. For the above reasons, we are unable to find howNand Kishore Mehra's case can be said to have doubted R.Rajagopal Reddy's case. In fact, far from doubting it, itproceeds to accept the said judgment and then considersthe case of exceptions provided in Section 3(2). It holdsincidentally that there is another exception contained inSection 4(3) of the Act. These exceptions apply even tosuits filed after 19-5-1988 and are not affected by whatis decided in R. Rajagopal Reddy's case.12. In order to complete the discussion, we shallalso refer to two subsequent cases. The case in Heirs ofVrajlal J. Ganatre v. Heirs of Parshottam S. Shah 1996(4)SCC 490 was one where the suit was filed in 1981 claiming https://hcservices.ecourts.gov.in/hcservices/ that the defendant in whose name the deed dated 16-12-1963stood was benami. The plaintiff’s heirs filed appeal inthe Gujarat High Court in 1990 against the judgment of thetrial court. No contention based on the Act of 1988 wasraised in the High Court. For the first time it was arguedin this Court that the plea was prohibited by the Act.This Court followed R. Rajagopal Reddy's case and heldthat the plea was raised in a suit filed before 19-5-1988,and it was not barred under the Act. This Court thenproceeded to decide the case on merits, dismissing theplaintiff’s appeal."14.From the above it is crystal clear that as per Section 3(2) of the Benami Transaction (Prohibition) Act, there is apresumption that if a property stands in the name of the wife, it ispresumed that it was so purchased in her name for the benefit of thewife and such a presumption is a rebuttable one which means that theperson who pleads benami should prove that the intention of suchpurchase in the name of the wife was not for her benefit, but forthe benefit of the person who paid the money for such purchase.15.Keeping in mind the aforesaid settled proposition of law,I would like to analyse the evidence on record.16.Ex.B1, the sale deed dated 20.10.1959 speaks of the factthat the first defendant purchased the plot area in the suitproperty for a valuable consideration of Rs.1,500/-. According tothe first defendant, in her written statement as well as in herdeposition D.W.1, she purchased the said plot as per Ex.B1 from outof her own earnings as a vegetable vendor and also by selling her 15sovereigns gold jewels which was given to her at the time of hermarriage by her parents. As such, her deposition is in support ofthe recitals in Ex.B1 the sale deed, whereas, it is the contentionof the plaintiff as P.W.1 that the first defendant had no financialcapability at all to purchase such property and that the said co-parcenary family alone had necessary income and it was purchased.It is a trite proposition of law that the plaintiff who pleadsbenami should prove it and onus of proof is not on the defendants.17.On the side of the plaintiff, the learned counsel wouldsubmit that the first defendant has not produced any evidence so asto fortify and buttress her plea. At this juncture, I recollectfruitfully the common or garden principle governing the adjudicationin civil cases that the plaintiff cannot try to achieve the successin the litigative battle by picking holes in the case of thedefendants, but he has to stand or fall on his own pleadings andevidence. Except the sole testimony of the plaintiff as P.W.1,absolutely there is no iota or shred of evidence or circumstanceshighlighted concerning the benami transaction and that too, asalready observed supra, here in this case, it is not enough even if https://hcservices.ecourts.gov.in/hcservices/ the alleged payment of sale consideration by the family is proved,but it should be established that the property was purchased in thename of the first defendant not for benefiting her but for thebenefit of the family. As such, the burden of proof so far thiscase is concerned is two fold on the plaintiff's side.18.At the first instance, the plaintiff must be able to provethat the sum of Rs.1,500/- as contemplated in Ex.B1 was not paid bythe first defendant from out of her own income, but it was from outof the co-parcenary family income and over and above, he must alsobe able to show that at the time of such purchase, the firstdefendant was not intended to be benefited by it, but only the co-parcenary family. Keeping the aforesaid principle in mind, if theevidence is analysed it is at once crystal clear that absolutelythere is no miniscule or exiguous extent of evidence adduced on theplaintiff's side to prove the facts capable of attracting theaforesaid ingredients. It is the claim of the first defendant thatshe raised construction over the suit property from the year 1970onwards and completed it, by from out of her own funds, so to say byavailing loan from the Bhavani Co-operative House Mortgage SocietyLimited and also other financial assistance from her son-in-laws.Ex.B2, the pass book issued by the Bhavani Co-operative HouseMortgage Society Limited would reveal that she availed housing loanduring the year 1971 and she had lot of transactions as found setout therein. Ex.B3 the pass book issued by the Bhavani Koodal Co-operative Urban Bank Limited would exemplify that the firstdefendant availed loan from such Bank also. As such, by way ofbuttressing and fortifying her contention, she relied on clinchingdocumentary evidence; over and above that to prove that she from herincome raised construction, Ex.B4 the approved plan would speak tothe effect that such a plan was issued in the name of the firstdefendant only for raising construction over the suit property.Ex.B5 would demonstrate that the share certificate was issued in thename of the first defendant by the said Urban Bank.19.The learned counsel for the plaintiff would try to torpedothe documentary evidence on the side of the first defendant byputting forth his argument that it was no wonder that those loantransactions and building plan are standing in the name of the firstdefendant, because Ex.B1 stands in her name.20.I am at a loss to understand as to how those clinchingdocumentary evidence can simply be brushed aside accepting theargument of the learned counsel for the plaintiff ignoring the factthat the onus of proof is on the plaintiff as held supra to provehis case, which he failed to prove. Over and above those clinchingdocumentary evidence, the first defendant also palpably andpellucidly highlighted that the suit property was assessed in hername by the Municipality relating to property tax and the https://hcservices.ecourts.gov.in/hcservices/ electricity connection also stands in her name as revealed by Ex.B6series which comprised of the house tax receipts and the electricitycharges.21.Exs.A5 and A6 were filed by the plaintiff with theauthentic documentary evidence adduced on the side of the firstdefendant.Exs.A5 and A6 are mere receipts issued by the Municipality relatingto the tea and biscuit shops in the plaintiff's name. Admittedly,it is the case of the first defendant that she allowed the plaintiffbeing her son to occupy a portion of the suit property and in such acase, such receipts Exs.A5 to A16 would have no evidentiary value atall to discharge the burden of proof heavily cast upon him asobserved supra. Exs.A17 to A24 are the receipts evidencing thepayment of electricity charges which are in the name of the firstdefendant only and that would not in any way enure to the benefit ofthe plaintiff's case. Ex.A25 is the letter sent by Canara Bank toS.K.Subramanian, the plaintiff citing his address as 72, AnthiyurRoad, Tea Stall, Bhavani, presumably referring to part of the suitproperty. This is a pococurante evidence sought to be placed beforethe Court and it is quite obvious that no more elaboration isrequired. Ex.A26 is the voter's card of S.K.Subramanian theplaintiff. Ex.A27 is the receipt issued by the Weights and MeasuresDepartment relating to his said shop and Ex.A28 is the certificateof Registration of Users of Weights and Measures issued to theplaintiff relating to his shop. Ex.A29 is the certificate ofverification issued by the Department of Weights and Measuresrelating to the plaintiff's business. Exs.A30 and A31 are the cashreceipts issued by the Inspector of Labour relating to his shop. Assuch, the aforesaid documentary evidence adduced on the side of theplaintiff are not worth the paper on which those documents are foundprinted/inscribed or written considering the mammoth heavy burdencaused upon the plaintiff to prove his case.22.At this context, it is just and necessary to analyse theevidence relating to the alleged ancestral property of the firstdefendant which he got in the partition as per Ex.B8 which wouldexemplify that on 14th July 1954, a partition emerged among thefollowing persons, namely Krishnammal W/o Ramasamy Gounder and hertwo sons namely Narayana Gounder and Karuppa Gounder (father of theplaintiff). An excerpt from it is absolutely necessary andaccordingly, it is extracted here under for ready reference: https://hcservices.ecourts.gov.in/hcservices/ "1954 tUc&k; N:iy khjk; gjpdhd;F njjp gthdp jhY}f;fh$k;ig fpuhkk; rPj ghisaj;jpypUf;Fk; td;dpah; gaph; uhkrhkp ft[z;ld; kidtp fpUc&;zk;khs; 1 i&ahs; kf;fs; ehuhaz ft[z;ld; 2/ fUg;g ft[z;ld; 3 Mfpa ehk; vGjpf; bfhz;lghfg;gphptpidg; gj;jpuk;/ek;kpy; 1yf;fkpl;ltUf;F 2yf;fkpl;l ehuhazf; ft[z;ld;;uhkrhkp ft[z;ld; K:y;akha; Vw;gl;l xnu xU kfd; ek;kpy;1yf;fkpl;ltUf;F 3yf;fkpl;l fUg;g ft[z;ld; vd;gtd; Fg;g ft[z;ld; K:y;akha; Vw;gl;l Xnu xU kfd;/ Mifahy; ehk;rnfhjuu;fs; Mf ntz;Lk;/ ,jdoapy; fhdhqk; g{uhr;brhj;Jf;fspy; rpyJ ek;kpy; 2/3 yf;fkpl;ltUf;F bghJthf capy;rhrd K:y;akha[k;. fpua tifapYk; ghj;jpag;gl;L ehk; bghJthfmDgtpj;J te;jjpy; ekf;Fs; brsfhpag;glhky; ghfg;gphptpid bra;Jbfhs;s mgpg;gpuhag;gl;L g";rhaj;jhu;fs; igry; go ghfg;gphptpidbra;J bfhz;ljpd; tpgukhtJ"23.The above excerpt would support the contention of thefirst defendant that the plaintiff's father Karuppa Gounder was theuterine brother of Narayana Gounder. It is not known that they gotany property from their common male ancestor. Unless it could beshown that from a common male ancestor the property devolved uponthose two brothers or that those two borthers constituted a co-parcenary and out of their joint exertion the property emerged, thequestion of treating the property allotted to Karuppa Gounder underEx.B8 as ancestral property would not arise. At this juncture, Iwould like to refer to the definition of co-parcenary/Ancestralproperty:"Coparcenary property:Coparcenary property means andincludes (1) ancestral property, (2) acquisitions made bythe coparceners with the help of ancestral property, (3)joint acquisitions of the coparceners even without suchhelp provided there was no proof of intention on theirpart that the property should not be treated as jointfamily property, and (4) separate property of thecoparceners thrown into the common stock.Ancestral Property: The term "ancestral property",which is a technical term having a special meaning, doesnot mean property inherited from any ancestor, male orfemale, paternal or maternal, near or remote, but only suchproperty as is inherited by a male from father, father'sfather and father's father's father [Atar v. Thakar, 35 https://hcservices.ecourts.gov.in/hcservices/ I.A. 206: 5 C.1039: 6 I.C.721:18M.L.J.379:10 Bom.L.R.790;12 C.W.N.1049(P.C.); Mahomed Hussain v. Babu Kishva Nandan,46 L.W.1:1937 M.W.N.683: (1937) 2 M.L.J.151; Venkateshwarluv. Raghavalu, 1955 An.W.R.39; Budhraj v. Bhan zarlal, 1954Ajmer 69. Cf., Naragand Prabhu v. Janardhana Mallan, 1973Ker.L.R.665]. Such inheritor's son, son's son and son'sson's son get an interest in it by birth and can interdictimproper alienations by the inheritor, whose position inrespect of that property, though it will otherwise beabsolute, is reduced in the presence of such descendants,to that of an owner with restricted rights [Chuttan Lal v.Kallu, 33 A.283: 8 A.L.J.15: 8 I.C.719; Jugmohandas v.Mangaldas, 10 B.528; Mahomed Hussain v. Babu Kishva Nandan,supra]. The circumstance that the property has beeninherited from one of such three immediate paternalancestors after the interposition of a life tenure createdby that ancestor in his wife's favour does not take awaythe character of the property as ancestral and theinheritor's lineal male descendants up to the third degreewill get an interest in it by birth [Beni Parshad v. PuranChand, 23 C.262; Nanabhai v. Achratbai, 12 B.122]. Nordoes the circumstance that the property, when it was withthe ancestor from whom it was inherited was his self-acquired or separate property affect the question [RamNarain v. Pertum Singh, 11 Beng.L.R.397; Madivalappa v.Subbappa, 39 Bom.L.R.895: 1937 B.458; Shyam Behart v.Rameshwar, 20 Pat.904: 1942 Pat.213; Mst.Ram Devi v.Mst.Gyarse, 1949 All.545 (F.B.)] Besides, it is absolutelyimmaterial whether the sons were born to the inheritorbefore or after the inheritance fell in. But if theproperty is inherited from a paternal ancestor beyond thethird degree then the property is not ancestral as againstthe inheritor's sons, and the inheritor has absolute powersof disposal over it. So also, if the inheritor has neithera son, son's son, nor son's son's son, the property isabsolute in the inheritor's hands even though he may haveother relations, for instance, a great-great-grandson on apaternal uncle, in the case of inheritance from father[Janki v. Nand Ram, 11 A.194)"24.As such, this Court cannot assume or presume that theproperty allotted to the first defendant happened to be ancestralproperty and that constituted the income bearing joint familynucleus among Karuppa Gounder and his two sons namely the plaintiffand the second defendant. Ex.A32 is the certified copy of the saledeed dated 15th June 1967 executed by Karuppa Gounder and his twosons in favour of third party alienating the property which KaruppaGounder obtained under Ex.B8. No doubt, in Ex.A32 he referred tothe property therein as his ancestral property as well as self https://hcservices.ecourts.gov.in/hcservices/ acquired property and such reference by itself would not enure tothe benefit of the plaintiff to contend that the propertycontemplated in Ex.B8 is the ancestral property. Even forargument sake, it is taken that it happened tobe the ancestral property, nonetheless, there is nothing toindicate that during the year 1959, the co-parcenary comprised ofKaruppa Gounder and his two sons was capable of generating incomefrom that agricultural property which as per Ex.B8 was measuringonly an extent of 1.07 acres. Whereas, in Ex.A3, the extentcontemplated is 1.64 acres. Presumably, the executants referred tothe self acquired property of the first defendant also in thatextent of 1.64 acres and the recitals in Ex.A32 would alsoexemplify the same. Ex.A4 is the sale deed dated 27th November 1961executed by the said Karuppa Gounder in favour of a third partyalienating the property which he acquired as per the sale deed dated06.01.1958. The recitals in Ex.A4 would unequivocally highlight thepoint that the said property referred to in Ex.A4 was purchasedearlier from out of Karuppa Gounder's own funds and it constitutedhis self acquired property which he mortgaged it with Bhavani KoodalCo-operative Urban Bank Limited and a part of the debt wasdischarged and the remaining part was yet to be discharged and inthat context, he sold that property.25.It is therefore crystal clear from the recitals that hetreated the property referred to in Ex.A4 as his self acquiredproperty, whereas he treated the agricultural property which he gotin the partition Ex.B8 as the one in which his sons also had shareand accordingly, alienated the same as per Ex.A32, but he treatedthe suit property as the exclusive property of his wife D1 and henever laid any claim over it. Had as contended by the plaintiffthat all the properties referred to supra constituted the joint co-parcenary property, then Karuppa Gounder would not have gone to theextent of referring the property in Ex.A4, as his self acquiredproperty. Furthermore, even in Ex.A32 itself in respect of the saidentire extent of 1.64 acres, he would state that part of it wastreated as common property of himself and his sons and the remainingpart was treated as his self acquired property.26.The contention of the plaintiff that all the aforesaidproperties contemplated under those documents were all treated asjoint co-parcenary property is not at all well founded and such aplea emerged by catching hold of the wrong end of the stick by theplaintiff. Indubitably, the plaintiff did not raise any objectionfor the property having been sold as per Ex.A4. In the plaint hewould contend that the property contemplated under Ex.A4 waspurchased from out of the joint family funds, but my abovediscussion supra would highlight that Karuppa Gounder treated it ashis self acquired property and accordingly, he mortgaged it andsubsequently sold it without adding his two sons as parties and the https://hcservices.ecourts.gov.in/hcservices/ plaintiff also kept quiet and he had not raised his little finger asagainst such alienation. But, on the other hand, in Ex.A32 relatingto the sale of the said agricultural land, the plaintiff and D2 werealso added along with Karuppa Gounder and executants. 27.At this juncture, my mind is reminiscent of the triteproposition of law that witnesses might lie but circumstances willnot and that preponderance of probability would govern theadjudication in civil cases. Accordingly if viewed, it is crystalclear that the plaintiff by his own conduct agreed to the method andmanner in which his father treated those properties under threecategories as delineated above.28.Palpably and apparently, pellucidly and glaringly,Karuppa Gounder was meticulous and cautious enough in treating threecategories of properties during his life time as set out supra. Assuch, in those three categories, the suit property was treated asthe self acquired property of D1.29.The fact also remains that Ex.B7 the Registered Willemerged on 17th January 1994, so to say during the life time ofKaruppa Gounder as he died on 17.02.1994 as demonstrated by Ex.A1,the Death Certificate.30.The learned counsel for the plaintiff would try to putacross his point as though neither the plaintiff nor Karuppa Gounderwas aware of such execution of the Will and that during the lifetime of Karuppa Gounder, absolutely there had been no necessity atall for the plaintiff to lay claim over the suit property becausethe suit property was treated only as the joint property. Such anargument is found torpedoed by the plaintiff's own averment in theplaint at paragraph No.5 and it is extracted here under for readyreference:" 5. ... The plaintiff got married and only threedaughters were born to him. The second defendant hasgot a son also besides his daughter. Hence, the parentsof the plaintiff were much inclined towards the familyof the second defendant. After the marriage of thesecond defendant, the plaintiff, his parents and thesecond defendant were living separately in the suitproperties for convenience through the entire suitproperties jointly belong to the plaintiff, the seconddefendant and to their father.6. As such the plaintiff is in occupation of theasbestos roofed shop bearing door No.97 with electricservice connection bearing S.C.No.404. He is alsoresiding in the back portion of the suit propertieswhich forms a part of Door No.104. The portions of the https://hcservices.ecourts.gov.in/hcservices/ suit properties in occupation of the plaintiff are shownin red colour in plaint plan. ... "31.Even though the plaintiff would contend that his fatheralone inducted the tenants into a part of the suit property duringhis life time, he has not chosen to adduce any evidence. But, on theother hand, the tenants filed the written statement in unmistakableterms and no uncertain terms that it was D1 who inducted them intothe part of the suit property and she had been collecting the rentfrom the inception of the tenancy. It is therefore clear that theplaintiff is fraught with unsustainable and baseless averments andthe plaintiff miserably failed to prove his case.32.The learned counsel for the appellant would put across hisspecious argument without fraught with casuistry or sophistry orlegerdemaie to the effect that the trial Court itself gave a findingthat the first defendant contributed for the construction in thesuit property. However, after giving such a finding it got itselfflummoxed by the wrong logic as dished out and put forth on theplaintiff's side, by holding that in recognition of the money spentby D1, she is entitled to 1/4th share in the suit property.33.I am in full agreement with the argument as put forth bythe learned counsel for the appellant in view of the fact that thetrial Court based on facts recognised that D1 had the financialwherewithal to put up construction over the suit property and insuch a case, it amounts to the trial Court having rejected the pleaof the plaintiff that D1 was penniless and had no financialwherewithal at all to do anything significantly relating to thepurchase of the plot or for raising construction thereon.34.In the absence of evidence having been let in to fortifyand buttress the plea of the plaintiff, the trial Court should haveaccepted the case of D1 and should not have decreed the suit.Without aufait with the law relating to Benami, the trial Courtupheld the plea of the plaintiff even though his plea is nothing buta slippery slope which he had chosen to wrongly lay claim over thesuit property.35.In the result these two points are decided in favour ofthe appellant to the effect that the plot area of the suit propertywas purchased by D1 from out of her own funds and she raisedconstruction thereon from her independent sources and accordingly,D1 was the absolute owner of the suit property and she had the rightto execute the registered Will in favour of D2's son. It is not thecase of plaintiff that D2 acted as Svengali over D1 and got the Willexecuted in favour of his son but D1's right over the suit propertyalone was challenged which turned out to be an unsustainable plea. https://hcservices.ecourts.gov.in/hcservices/

36.Correspondingly, point No.2 is decided to the effect thatthe embargo as envisaged in the provision of Benami Transaction(Prohibition) Act 1988 could operate as against the case of theplaintiff.POINT NO:337.In view of the ratiocination adhered to in deciding pointNos.1 and 2, the appeal is allowed and the judgment and decree ofthe trial are set aside and the Original Suit is dismissed. Nocosts.GmsSd/Asst.Registrar/true copy/Sub Asst.RegistrarToThe Subordinate Judge, Bhavani.+ 1 cc to Mr. T. Murugamanikkam, Advocate, SR No.54291+ 1 cc to Mr. M. M. Sundresh, Advocate, SR No.54169Judgment in A.S.No.754 of 1996 KM(CO)SR/3.11.2008