C. Subbiah and Chinnayee vs C. Meenakshi

P.R. Shivakumar, J.—After having lost their case in both the Courts below, the plaintiffs in the original suit have brought forth this second

appeal before this Court.

The suit had been filed by the appellants herein on the file of the trial Court, namely District Munsif, Tirupattur, for a declaration that the suit

properties belonged to the appellants/plaintiffs and for a consequential injunction not to disturb their possession and enjoyment against the

respondent/defendant.

The following were the averments, in brief, made in the plaint:

The first item of the suit properties was the ancestral property of Chinnannan, who was the father of the first appellant and husband of the second

appellant. The suit second item was purchased by the said Chinnannan with his own funds on 26.05.1961. However the sale deed was obtained in

the name of the respondent/defendant, the daughter of the above said Chinnannan. During the survey settlement, patta was granted in favour of

Chinnannan in respect of the first item of suit properties, whereas patta in respect of the second item of suit properties was granted in the name of

the respondent/defendant. However both the items of suit properties were in the possession and enjoyment of the said Chinnannan. Though the

second item was purchased in the name of the respondent/defendant, she did not claim any right or title to the said property. Subsequently as she

was driven out and deserted by her husband, she took asylum under her father Chinnannan. In the said circumstances, in order to lure the husband

of the respondent/defendant to take her back and live a peaceful life with her, the above said Chinnannan executed a sale deed in favour of the

respondent/defendant on 09.03.1968 in respect of the first item of the suit properties. The said sale deed was not acted upon and the same was

nothing but a sham and nominal deed. After the execution of the said sale deed, there was a successful conciliation between the

respondent/defendant and her husband, pursuant to which she was sent to her husband''s place along with a lot of Sridhana by her father

Chinnannan. Subsequently on 07.09.1985 the respondent/defendant obtained a sum of Rs. 70/- from her father Chinnannan and executed a

release deed giving up her right and claim in respect of the second item of suit properties. Likewise, on 24.12.1985 the respondent/defendant

executed a sale deed in respect of the first item of suit properties after receiving a sum of Rs. 900/- from Chinnannan for purchasing milch how.

Even though such documents were obtained from the respondent/defendant as evidence for the confirmation of the title of Chinnannan, at no point

of time, the respondent/defendant was either in possession or enjoyment of the suit properties. While so, the above said Chinnannan died intestate

on 11.06.1987. After his death, his son and wife who are the appellants herein continued to possess and enjoy both items of the suit properties

without any let or hindrance till the respondent/defendant obtained patta in her name in the month of February 1990 and attempted to trespass into

the suit properties and dispossess the appellants/plaintiffs. Thus the appellants/plaintiffs were constrained to file the suit for the above mentioned

reliefs.

The respondent/defendant filed a written statement denying the plaint averments and contending that the respective items of suit properties were

in her continuous possession and enjoyment ever since she purchased them under sale deeds dated 09.03.1968 and 26.05.1961 respectively and

that at no point of time, after purchase she lost her possession. She had also denied the plaint averments regarding the alleged attempt to trespass

into the suit properties and dispossess the appellants/plaintiffs. It was also the contention raised in the written statement that there was no occasion

or necessity to trespass into the suit properties as the properties were in her continuous possession and enjoyment. The respondent/defendant,

besides questioning the admissibility of the sale deed and release deed alleged to have been executed by the defendant, had also denied their

execution and genuineness.

The trial Court framed necessary issues and conducted trial. Four witnesses, namely P.Ws.1 to 4 were examined and 17 documents Exs.A.1 to

A.17 were marked on the side of the appellants/plaintiffs. On the side of the respondent/defendant, three witnesses were examined as D.Ws.1 to 3

and 13 documents were marked as Exs.B.1 to B.13. At the conclusion of trial, considering the evidence both oral and documentary adduced on

both sides, the trial Court dismissed the suit with cost by its judgment and decree dated 13.02.1996. On appeal, the learned Principal District

Judge, Sivaganga by judgment dated 26.11.1996 confirmed the judgment and decree passed by the trial Court. Hence the appellants/plaintiffs

have brought forth this second appeal before this Court.

This Court heard the arguments advanced by Mr. T.M. Hariharan, learned counsel appearing for the appellants and also by Mr. R.S.

Rathinamani, learned counsel appearing for the respondent. The materials on record have also been perused.

At the time of admission of the second appeal, the following two questions were framed as substantial questions of law involved in the second

appeal:

(1) Whether the release and sale deeds executed by the respondent cannot, in any event, be looked into for collateral purposes and whether their

rejection in the manner done is legal and proper?

(2) Whether the appellants have not proved their continuous enjoyment and possession of the suit properties by the production of documents of

title, pattas, and chain of kist receipts?

Admittedly, the second item of suit properties, namely a wet land measuring 16 cents comprised in Survey No. 310/9 in Parakkinipatti Village,

Thirupathur Taluk, Sivaganga District originally belonged to Chinnaiah and his son, of Udaiyanathapuram Village and the same was purchased from

them in the name of the respondent/defendant under Ex.A.1-sale deed dated 26.05.1961. Ex.B.2 is the certified copy of Ex.A.1-sale deed. It is

the case of the appellants/plaintiffs that though Ex.A.1-sale deed was obtained in the name of the respondent/defendant, she was not the actual

purchaser and on the other hand, her father Chinnannan was the person who actually purchased the property in the name of his daughter. There

can be no doubt regarding nature of the said contention. It is nothing but a contention that the purchase made under Ex.A.1 was a benami

transaction. Now by virtue of Section 4 of the Benami Transactions (Prohibition) Act, 1988, the appellants/plaintiffs cannot maintain a claim or suit

to enforce any right in respect of the property held benami against the defendant in whose name the property is held. Nor shall the plaintiffs be

allowed to take a defence against the defendant on similar plea. For convenient reference, Section 4 of the Benami Transactions (Prohibition) Act,

1988 is extracted here under:

Prohibition of the right to recover property held benami: (1) No suit, claim or action to enforce any right in respect of any property held benami

against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner

of such property.

(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or

against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.

(3) Nothing in this section shall apply,-

(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the

coparceners in the family; or

(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for

the benefit of another person for whom he is a trustee or towards whom he stands in such capacity.

The plaintiffs'' case does not fall under the exception provided u/s 4(3) of the said Act. The exception provided u/s 3(2) of the Benami

Transactions (Prohibition) Act, 1988 is also not available to the appellants/plaintiffs, since at the time of the sale transaction under Ex.A.1, the

respondent/defendant did not remain unmarried. For convenient reference, Section 3 of the Benami Transactions (Prohibition) Act, 1988 is

extracted here under:

Prohibition of benami transactions:

(1) No person shall enter into any benami transaction.

(2) Nothing in Sub-section (1) shall apply to-

(a) 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;

(b) the securities held by a -

(i) depository as registered owner under Sub-section (1) of Section 10 of the Depositories Act, 1996

(ii) participant as an agent of a depository.

Explanation: The expressions ""depository"" and ""Participants"" shall have the meanings respectively assigned to them in clauses (e) and (g) of Sub-

section (1) of Section 2 of the Depositories Act, 1996].

(3) Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or

with both.

(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974), an offence under this section shall be non-cognizable

and bailable.

Even though P.Ws.1 and 2 have refused to admit the fact that the respondent/defendant was married even prior to the date of Ex.A.1-sale deed,

there are clinching evidence to prove the same. D.W.2 is none other than the husband of the defendant/respondent who was examined as D.W.1.

Both of them, in one voice, have stated in their evidence that their marriage took place in 1958 and the second item was purchased under Ex.A.1

in 1961 (three years after their marriage). Ex.B.1-note book containing the particulars of marriage gifts (bkha;) corroborates the evidence of

D.Ws.1 and 2 that their marriage took place in 1958. The appellants/plaintiffs, at the time of their examination as P.Ws.1 and 2, pleaded ignorance

as to the year in which the marriage of the respondent/defendant took place. As such, it is obvious that there is no evidence capable of rebutting

the said evidence of D.Ws.1 and 2. Above all the recital found in Ex.A.1-sale deed is a clinching one. In the sale deed, the respondent/defendant is

described as the wife of D.W.2. It clearly establishes that the marriage of the respondent/defendant had taken place prior to the date of Ex.A.1-

sale deed. Thus it has been clearly established by the respondent/defendant that her marriage took place prior to Ex.A.1-sale deed. Therefore,

there cannot be any second opinion that the claim of the appellants/plaintiffs based on the plea that Chinnannan was the real purchaser under

Ex.A.1 is barred by the provisions of the Benami Transactions (Prohibition) Act, 1988, as the said transaction is not the one exempted either u/s

3(2) or u/s 4(3) of the Benami Transactions (Prohibition) Act, 1988.

Further more, the evidence of the first appellant/first plaintiff as P.W.1 is also against the contents of the sale deed regarding the amount for

which the property was purchased under Ex.A.1. As per the recitals found in Ex.A.1, sale consideration was Rs. 100/. However P.W.1 would

state that his father paid Rs. 200/- as consideration. Having regard to all these aspects, the Courts below have rightly held the plea of benami

transaction made by the appellants/plaintiffs in this regard untenable. The same cannot be interfered with.

So far as the first item of suit properties is concerned, admittedly it was the ancestral property of Chinnannan. The same was sold by

Chinnannan and his son, namely the first appellant/first plaintiff under a registered sale deed dated 09.03.1968. A certified copy of the said sale

deed is Ex.B.4. According to the case of the appellants/plaintiffs, the sale was sham and nominal, it was not acted upon and hence, the same was

of no consequence. As the sale deed was executed not only by Chinnannan but also by the first appellant/first plaintiff, the appellants cannot deny

the same. That is why they have chosen to take a stand that the same was a sham and nominal deed. The reason assigned is that the said sale deed

was executed when the respondent/defendant was residing with her father Chinnannan, after having been driven out and deserted by her husband,

obviously in order to induce the husband of the respondent/defendant to take her back. The said contention of the appellants/plaintiffs has been

denied in categorical terms by the respondent/defendant. In this regard, the interested testimonies of P.Ws.1 and 2 have been rightly disbelieved by

the Courts below. P.W.4 the only other witness who deposed in favour of the appellants/plaintiffs in this regard also cannot be recognised as a

disinterested witness. There is an admission that his brother''s daughter Dhanapackiyam was given in marriage to the first plaintiff. Above all, the

plea that the sale deed in favour of the respondent/defendant was sham and nominal and was not acted upon has lost its importance and the same

has been pushed to the back door, in view of the admission that the first appellant/first plaintiff and his father wanted to get it reconveyed to them

on making a payment of Rs. 900/- to the respondent/defendant. It is the specific case of the appellants/plaintiffs that as the respondent/defendant

wanted money to buy milch cow, she received a sum of Rs. 900/- and executed an unregistered sale deed in respect of the first item of the suit

properties on 24.12.1985. The same has been marked as Ex.A.17. Besides denying the genuineness of the said document, the

respondent/defendant has also questioned the admissibility of the same. Taking into account all the above said aspects, the Courts below have

arrived at a correct conclusion that the plea of sham and nominal nature of the sale deed dated 09.03.1968 in favour of the respondent/defendant

has got to be disbelieved and rejected. The same has got to be confirmed by this Court.

The Courts below have also rightly held that the plea of purchase from the respondent/defendant under unregistered sale deed cannot be

accepted. The learned counsel for the appellants, while advancing arguments, fairly conceded that the unregistered sale deed produced on the side

of the appellants/plaintiffs and marked as Ex.A.17 could not be admitted as evidence of transfer of title from the respondent/defendant to the first

appellant and his father. But at the same time, the learned counsel for the appellants advanced an argument that the said document could be looked

into for the collateral purpose of proving possession of the appellants/plaintiffs. It is the case of the appellants/plaintiffs that the

respondent/defendant executed a release deed (unregistered) in respect of the second item of suit properties and by virtue of such release deed,

the first appellant and his father had got their title to the said property confirmed. The unregistered release deed relied on by the appellants/plaintiffs

has been produced and marked as Ex.A.13. According to the appellants''/plaintiffs'' case, the respondent/defendant executed the said document,

after receiving a sum of Rs. 70/- and released her claim of title in respect the second item of suit properties in favour of the first appellant and his

father. The learned counsel for the appellants argued that the said document should not have been rejected, as an immovable property of the value

of less than Rs. 100/- could be affected even orally. The legal proposition relied on by the learned counsel is correct. But in the instant case,

admittedly the value of the second item of suit properties in 1961 itself, was not less than Rs. 100/- and that is why the same was purchased under

a registered sale deed, namely Ex.A.1. It is not the case of the appellants/plaintiffs that the value decreased below Rs. 100/- in 1985, when

Ex.A.13-release deed was allegedly executed by the respondent/defendant. In fact, the witnesses examined on the side of the appellants/plaintiffs,

including the plaintiffs, admitted that the value was not less than Rs. 100/-. As such, the rejection of both the documents-Exs.A.13 and A.17-by

the Courts below as not admissible cannot be termed erroneous or defective. The Courts below have rightly rejected the claim of title made by the

appellants/plaintiffs based on their plea of benami transaction, sham and nominal transaction and acquisition of title by unregistered deeds, namely

Ex.A.13 and Ex.A.17. There is no scope for interference with the well considered finding of the Courts below.

The appellants/plaintiffs had also pleaded perfection of title by adverse possession. But they have not made necessary averments to

substantiate a plea of adverse possession. At what point of time their possession became adverse to that of the respondent/defendant has not been

stated. Moreover the appellants/plaintiffs have miserably failed to prove that they were in possession as on the date of plaint. They have also failed

to prove that they were in possession and enjoyment of the suit properties well over the limitation period. The mere fact that some kist receipts

were available with the appellants/plaintiffs and produced by them will not be enough to prove their possession and enjoyment. Taking into account

the close relationship between the parties, the case of the respondent/defendant that those documents were taken from the house of the

respondent/defendant could not be disbelieved. Even assuming that kist could have been paid by the father of the respondent/defendant, the same

will not be enough to show that the same was paid on his own behalf and not at the request of the respondent/defendant. The appellants/plaintiffs

were able to produce kist receipts only from 18.06.1988. The respondent/defendant has produced kist receipt from 20.03.1989. Patta has also

been issued in the name of the respondent/defendant. In such circumstances, it is quite obvious that the Courts below have arrived at a correct

conclusion that the appellants/plaintiffs are not entitled to either the relief of declaration or the consequential relief of permanent injunction against

the respondent/defendant in respect of any one of the two items of suit properties. There is no infirmity or defect warranting any interference by this

Court in this second appeal. Moreover this Court is of the considered view that the substantial questions of law framed at the time of admission

have got to be answered against the appellants/plaintiffs. There is no merit in the second appeal and the same deserves to be dismissed with costs.

In the result, this Second Appeal is dismissed with costs.