Dhanalakshmi vs Devaki Ammal and Others

G. Rajasuria, J.—This second appeal is focussed by the second plaintiff, inveighing the judgment and decree dated 31.3.2000 passed by the

Subordinate Judge, Maduranthakam, Chengalpet District, reversing the judgment and decree dated 26.2.1999 passed by the Distict Munsif,

Maduranthakam in O.S. No. 122 of 1994, which was one for recovery of possession and for permanent injunction. The parties, for the sake of

convenience, are referred to here under according to their litigative status and ranking before the trial Court.

A summation and summarisation of the germane facts, absolutely necessary for the disposal of this second appeal would run thus:

(a) The plaintiffs filed the suit seeking the following reliefs:

i) to direct the defendants to deliver possession of suit properties to plaintiffs;

ii) to pay plaintiffs profits till the date of delivery

iii) to grant permanent injunction against the 2nd defendant not to pay the sugarcane price to 1st defendant until the defendant pays profits to

plaintiffs;

(iv) to direct the 1st defendant to pay cost of the suit.

(extracted as such)

(b) The first defendant filed the written statement resisting the suit. D2 is only a formal party.

(c) Whereupon issues were framed. Up went the trial, during which, the first plaintiff examined herself as P.W. 1 along with P.W. 2(the 2nd

plaintiff) and marked Exs. A1 to A9. The first defendant examined himself as D.W. 1 along with D.W. 2 and marked Exs. B1 to B39.

(d) Ultimately, the trial Court decreed the suit, as against which, the legal heirs of the first defendant preferred the appeal (since the first defendant

died before filing of the appeal); whereupon the first appellate Court reversed the judgment and decree of the trial Court and dismissed the suit.

Challenging and impugning the judgment and decree of the first appellate Court, the second plaintiff preferred this appeal on various grounds and

also suggesting the following substantial question of law:

Whether the lower appellate Court is right in holding that mother is a coparcener with in the meaning of Sec. 4(3)(a) of Benami Transactions

(Prohibition) Act, 1988.

Heard both.

My learned predecessor formulated the following substantial question of law.

Whether the lower appellate Court is right in holding that mother is a coparcener within the meaning of Section 4(3) of the Benami Transactions

(Prohibition) Act 1988.

(extracted as such)

On hearing both sides, I was of the opinion that the following additional substantial questions of law should be framed to the knowledge of both

sides.

(i) Whether the parties as well as the Courts below were justified in proceeding on the footing that Exs. A3 and A7 are the settlement deeds, even

though the recitals would speak that they are the Wills executed by the first plaintiff in favour of the second plaintiff?

(ii) Whether the provisions of the Benami Transactions (Prohibition) Act 1988 have been properly applied and findings rendered by the Courts

below?

(iii) Whether the first appellate Court was justified in holding that the suit properties should be held by the first plaintiff and D1, as trustees for the

children of D1?

Heard both sides on those substantial questions of law.

All the substantial questions of law are taken together for discussion as they are interwoven and interconnected, interlinked and entwined with

each other.

A ''resume'' of facts absolutely necessary for the disposal of this second appeal would run thus:

The relationship among the parties is an admitted one. The appellant herein/second plaintiff as well as D1-Muthukumarasamy, happened to be the

children of the first plaintiff-Krishnaveni Ammal.

Tersely and briefly the case as found detailed and delineated by the plaintiffs would run thus:

(i) The first plaintiff''s mother, namely, Rajambal Ammal owned extensive properties. She, as per Ex. B9-the settlement deed, dated 1.10.1964,

donated certain items of properties in favour of her daughter-the first plaintiff-Krishnaveni Ammal and her grand son-D1-Muthukumarasamy for

their lives and absolute interest in favour of the children of D1-Muthukumarasamy.

(ii) While so, the life estate holders the first plaintiff-Krishnaveni Ammal and D1-Muthukumarasamy, vide the sale deed-Ex. B1 dated 10.8.1981

alienated a part of the property covered under Ex. B9-the settlement deed, in favour of a third party for a sum of Rs. 8,000/- (eight thousand).

(iii) Subsequently, as per Ex. A1 and Ex. A2-the sale deeds dated 17.9.1984, the first plaintiff claimed to have purchased the suit properties and

thereafter, according to her, she settled those two properties, vide the alleged settlement deeds Ex. A3 and A7, in favour of the second plaintiff.

(iv) The first plaintiff and the second plaintiff joined together and filed the suit as though D1-Muthukumarasamy during the year 1993 trespassed

into the suit property and started enjoying it.

Per contra, D1 filed the written statement challenging and impugning the averments/allegations in the plaint by putting forth his version, the warp

and woof of the same would run thus:

The suit properties were purchased as per Exs. A1 and A2- the sale deeds dated 17.9.1984 from out of the sale proceeds obtained under Ex.

B1-the sale deed dated 10.8.1981 and also from out of the money raised by D1 by selling his wife''s jewels and also raising loans and creating

mortgages and that the suit properties are meant only for his children, as Rajambal Ammal intended that only D1''s children should be the absolute

owners.

Both sides, even before me argued as though Exs. A3 and A7 are settlement deeds.

I raised the query as to how in view of the recitals found embodied in those so called settlement deeds, they cannot be dubbed or labelled as

Wills. I could not get any convincing answer from both sides. Certain excerpts from Ex. A3 and Ex. A7 would run thus:

Certain excerpts from Ex. A3 would run thus:

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Certain excerpts from Ex. A7 would run thus:

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The above excerpts would unambiguously and unequivocally highlight and spotlight the fact that those two alleged settlement deeds are in

stricto sensu only Wills and there can be no second thought over it.

At this juncture, I would like to buttress and fortify my view by referring to the following judgments of the Honourable Apex Court as well as

this Court:

(i) Kokilambal and Others Vs. N. Raman, and an excerpt para Nos. 11 to 14 of it, would run thus:

Their Lordships also relied upon Halsbury''s Law of England, 4th Edn., Vol. 50, Para 589 at page 395 which reads as under:

It is necessary to construe the Will to find out the intention of the testator. With regard to construction of Wills the law is well settled that intention

has to be ascertained from the words used keeping in view the surrounding circumstances, the position of the testator, his family relationship and

that the Will must be read as a whole.

Our attention was also invited to a decision of this Court in the case of Namburi Basava Subrahmanyam Vs. Alapati Hymavathi and others, In

this case also the question was whether the document is a will or settlement. Their Lordships held that the nomenclature of the document is not

conclusive one. It was observed as follows:

The nomenclature of the document is not conclusive. The recitals in the document as a whole and the intention of the executant and

acknowledgment thereof by the parties are conclusive. The Court has to find whether the document confers any interest in the property in praesenti

so as to take effect intra vivos and whether an irrevocable interest thereby, is created in favour of the recipient under the document, or whether the

executant intended to transfer the interest in the property only on the demise of the settlor. Those could be gathered from the recitals in the

document as a whole.

The document in this case described as ''settlement deed'' was to take effect on the date on which it was executed. The settlor created rights

thereunder intended to take effect from that date, the extent of the lands mentioned in the Schedule with the boundaries mentioned there under. A

combined reading of the recitals in the document and also the Schedule would clearly indicate that on the date when the document was executed

she had created right, title and interest in the property in favour of her second daughter but only on her demise she was to acquire absolute right to

enjoyment, alienation etc. In other words, she had created in herself a life interest in the property in praesenti and vested the remainder in favour of

her second daughter. It is settled law that the executant while divesting herself of the title to the property could create a life estate for her enjoyment

and the property would devolve on the settlee with absolute rights on the settlor''s demise. Thus the document in question could be construed

rightly as a settlement deed but not as a Will. The settlor, having divested herself of the right and title there under, had, thereafter, no right to

bequeath the same property in favour of her first daughter.

In this background, we have to examine the settlement deeds created by Kokilambal in favour of the deceased Varadan. The recitals of the

settlement deeds i.e. A-1 and A-2 as reproduced above, clearly says that since Kokilambal had no son and her husband Manicka Mudaliyar

during his life time has bestowed his love and affection on Varadan, the son of his elder sister, and therefore, out of love and affection, she has

settled that the income derived from the properties i.e. Door No. 43, Kakkaran Basin Road, shall be enjoyed by herself and Varadan, till her life

time and after her demise, it shall be enjoyed by Varadan absolutely. She further authorised him to collect the rental income of the aforesaid house

and pay the corporation and land tax, repairs etc. and the remainder rental amount shall be enjoyed by herself and Varadan in moiety. The

appellant No. 1 further settled that she would not alienate the property but both of them reserve the right to alienate the property jointly. Therefore,

this settlement in no uncertain terms lays down that the properties in question will vest absolutely after the death of the appellant No. 1 and during

their life time, both will enjoy the usufructs but Varadan would collect the rental income of the aforesaid property. It is further mentioned that both

will have the right to alienate the property in question jointly. These conditions are very clear. Varadan would have acquired the absolute right over

the property after the death of Kokilambal. Even during their life time if the property was to be alienated then the same would be alienated by them

jointly meaning thereby that the appellant No. 1 continued to hold the property during her life time and both of them were permitted to enjoy the

usufructs of that property. These settlement deeds in our opinion, clearly make out that Varadan was not made absolute owner of the property

during the life time of the settlor, Kokilambal.

Learned counsel for the respondent has tried to interpret this document that since the appellant No. 1 had already divested her right to alienate

the property that should be enough to show that the entire property stood vested in favour of Varadan. Learned counsel for the respondent tried to

seek support from a decision in the case of Turlapaty Rajeswara Rao and Others Vs. Kamarajugadda Rangamma and Others, . In that case also it

was observed that the wife got the life estate in the properties and the nephews got the vested interest in the same although they are postponed till

her death. In this case also, it was held that the fundamental rule of construction of a Will is that in the intention of the testator should be gathered

from a reading of the Will as a whole. Learned counsel for the respondent also invited our attention to a decision in the case of P. Ram Mohan Vs.

Lalitha Raghuraman and Others, . In that case, on the facts their Lordships came to the conclusion that where a settlor by a deed of settlement

created a life interest in favour of himself, his wife, his foster son, it was held that the two sons of the settlor acquired a vested interest in the

property on the date of execution of the deed. Therefore, this depended on the construction of the settlement deed. But, in the present case, we

have quoted above the recitals in the settlement deeds i.e. A-1 and A-2 and have also interpreted the same that the settlor Kokilambal had not

completely divested her right in favour of the deceased Varadan but it was a contingent one that it would vest after her death. Therefore, the

intention of the settlor was very clear that the settlement was to come into effect after the death of settlor, Kokilambal.

(ii) The decision of this Court reported in Rajammal Vs. Pappayee Ammal . An excerpt from it would run thus:

From the above said decisions, we can formulate the following broad formula to be applied to find out the nature of the document:-

(1) The intention of the executor or executrix has to be found out by reading the entire recitals in the document and the phraseology used therein.

(2) The nomenclature (settlement or will) given in the document is not a deciding factor.

(3) The registration of the document and the quantum of stamp paper used also have to be taken into consideration.

(4) The recitals regarding the right to revoke or restriction to revoke the document is not a deciding factor with reference to the character of the

document.

(5) Though actual disposition can be postponed till the lifetime of the settlor or though prima facie it appears that disposition consummates after his

death, if there is a present disposition and vesting of right in praesenti, the document has to be construed as a settlement and not as testamentary.

(6) If any restriction is imposed on the beneficiaries to encumber or alienate the properties during the lifetime of the executor, then the said

document is only a testamentary and not a settlement.

(7) If the executant is entitled to be in possession of the property and enjoy the benefits during his life time with the power to encumber, the

document has to be construed only as a Will.

(8) If the executant imposes self-restriction and with reference to sale and encumbrance, though he is in possession of the property after execution

of the said document, the document has to be construed only as a settlement and not as a Will.

(emphasis supplied)

(iii) The decision of this Court reported in Arthur Mary Ammal Vs. Aruldoss Pillai (Deceased), M.F. Doss Mary Floradoss, A. Baskar, A. Xavier

Rajan, Alex Melan, Fathima, Rajash and John, and

(iv) The decision of this Court reported in 2004 (4) MLJ 619 (Rasu Pillai vs. Muthukumaran and another).

The aforesaid precedent of the Honourable Apex Court would unambiguously and unequivocally demonstrate that the Hon''ble Apex Court

had gone to the extent of holding that despite the settlee having been given with the right to receive the rent during the life time of the settlee, the

settlement was only a Will and not a gift.

A mere running of the eye over the aforesaid precedents would enable me to adjudge and assess Ex. A3 and A7 only as Wills and not as

Settlement deeds. There is no molecular or miniscule, shard or shred, pint or jot of version that the second plaintiff could locate in those Ex. A3

and A7 that as on the date of execution of those deeds, the property in those deeds got transferred absolutely in her favour. The parties and

Courts below in blithe disregard for the ingredients of Section 123 of the Transfer of Property Act, dealt with Ex. A3 and A7. Surprisingly and

shockingly the evidence both pro and contra relating to those documents variedly and wastefully and such efforts turned out to be an ill wind that

blew no one any good. When such is the factual scenario, a fortiori, the law would label those two documents only as Wills and not as settlement

deeds.

The plaint in fact proceeded on the footing as though those Ex. A3 and A7 were two settlement deeds indicating donations inter vivos, even

though they were not so.

Au fait with law and au courant with facts, both the Courts below also have not taken note of that fact. Adding fuel to the fire, during the

pendency of these proceedings, the first plaintiff-the testator under Ex. A3 and Ex. A7 died. Now the second plaintiff could claim right over the suit

properly only under those two Wills, which are bound to be proved in accordance with Sections 68 of the Indian Evidence Act, and if necessary

as per Section 69 of the Act, but so far that exercise has not been undertaken. The 2nd plaintiff, ex debito justitiae could claim right as beneficiary

under Ex. A3 and A7, provided she, as propounder of the Wills Ex. A3 and A7, proves them as per law.

At this juncture, I would like to recollect the following maxims:

''(i) Ignorantia juris quod quisque scire tenetur neminem excusat'' Ignorance of the law, which everyone is bound to know, excuses no one.

(ii) ''Ignorantia legis nemimem excusat.'' -Ignorance of law excuses no one.

(iii) ''Ignorantia juris non excusant'' Ignorance of the law does not excuse.

(iv) ''Ignorantia juris haud excusat'' - a mistake of fact may involve a misapprehension of legal rights.

In fact the pertinent maxim, in my opinion, which normally should be adopted by the Courts is the third maxim cited supra.

Accordingly this Court should holistically view the matter. The Court cannot throw the baby along with the bathe water. Owing to the

misconception relating to the nature of the documents, Ex. A3 and A7, appropriate evidence was not adduced on the side of the plaintiffs and the

Courts also have not guided the parties properly in this regard.

My mind is reminiscent and redolent of the maxim ''Ubi jus incertum, ibi jus nullum'' Where the right is uncertain, there is no right.

Both the Courts below failed to adhere to the well known adage that every trial is a voyage, in which quest for truth is the goal as found

highlighted in the following precedents of the Hon''ble Apex Court:

(i) Maria Margarida Sequeria Fernandes and Others Vs. Erasmo Jack de Sequeria (Dead) through L. Rs., Certain excerpts from it would run thus:

In Ritesh Tewari and Another Vs. State of U.P. and Others, , this court reproduced often quoted quotation which reads as under:

Every trial is voyage of discovery in which truth is the quest.

This court observed that the power is to be exercised with an object to sub-serve the cause of justice and public interest and for getting the

evidence in aid of a just decision and to uphold the truth.

Lord Denning, in the case of Jones v. National Coal Board, 1957 (2) QB 55 has observed that:

In the system of trial that we evolved in this country, the Judge sits to hear and determine the issues raised by the parties, not to conduct an

investigation or examination on behalf of the society at large, as happens, we believe, in some foreign countries.

Certainly, the above, is not true of the Indian Judicial System. A judge in the Indian System has to be regarded as failing to exercise its

jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. He

has to always keep in mind that ""every trial is a voyage of discovery in which truth is the quest."" In order to bring on record the relevant fact, he has

to play an active role; no doubt within the bounds of the statutorily defined procedural law.

In the administration of justice, judges and lawyers play equal roles. Like Judges, lawyers also must ensure that truth triumphs in the

administration of justice.

Truth is the foundation of justice. It must be the endeavour of all the judicial officers and judges to ascertain truth in every matter and no stone

should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain

the truth.

(ii) Ritesh Tewari and Another Vs. State of U.P. and Others, . Certain excerpts from it would run thus:

Section 165 of the Evidence Act, 1872 empowers the court to ask questions relevant, irrelevant, related or unrelated to the case to the party

to ascertain the true facts. The party may not answer the question but it is not permitted to tell the court that the question put to him is irrelevant or

the facts the court wants to ascertain are not in issue. Exercise of such a power is necessary for the reason that the judgment of the court is to be

based on relevant facts which have been duly proved. A court in any case cannot admit illegal or inadmissible evidence for basing its decision. It is

an extraordinary power conferred upon the court to elicit the truth and to act in the interest of justice. A wide discretion has been conferred on the

court to act as the exigencies of justice require. Thus, in order to discover or obtain proper proof of the relevant facts, the court can ask the

question to the parties concerned at any time and in any form. ""Every trial is voyage of discovery in which truth is the quest"". Therefore, power is to

be exercised with an object to subserve the cause of justice and public interest, and for getting the evidence in aid of a just decision and to uphold

the truth. The purpose being to secure justice by full discovery of truth and an accurate knowledge of facts, the court can put questions to the

parties, except those which fall within exceptions contained in the said provision itself (vide Jamatraj Kewalji Govani v. State of Maharashtra and

Zahira Habibulla H. Sheikh vs. State of Gujarat].

As such, I am of the considered view that an opportunity has to be given to the appellant/second plaintiff in this regard and it is for the

defendants to raise whatever pleas which they might deem fit and the parties also shall be given further opportunity to put forth additional pleadings.

The first appellate Court''s approach in applying the facts by ushering in Section 4(3) of the Benami Transactions (Prohibition) Act, 1988, is far

from satisfactory and that was why my learned predecessor formulated the aforesaid substantial question of law.

The Courts should bare in mind the principle ''burden of proof'' as found embodied in the following maxims:

(i) Affirmatis est probare He who affirms must prove.

(ii) Affirmanti, non neganti incumbit probatio The burden of proof lies upon him who affirms, not upon one who denies.

It is the duty of the person who affirms a particular fact to prove it and he cannot call upon the other side to prove the negative aspect.

Here Ex. A1 and Ex. A2 the sale deeds stand in the name of the first plaintiff. However, it is D1, who would venture to point out that the

plaintiff was only a name lender and in fact, out of love and affection alone for her, D1 purchased the properties in her name. In such a case, the

initial burden is only on D1 and having that in mind, the evidence has to be analysed and even if any additional evidence is sought to be adduced on

the side of the defendants, (now then, D1 died and D1''s L.Rs on record) it is open for them to adduce such additional evidence and it is for the

second plaintiff to rebut it in the way known to law. The distinction which should be borne in mind would be to the effect that it is one thing to

contend and prove that the suit property is nothing but a replica of the property sold under Ex. B1, and it is entirely different to contend and prove

that D1, purchased the suit property in the name of the first plaintiff from out of various D1''s financial source. This deep difference is essential

while applying the provisions of the Benami Transactions (Prohibition) Act

I would also bring it to the knowledge of the Courts below as well as the parties the decision of the Honourable Apex Court reported in R.

Rajagopal Reddy and Others (deceased by legal representatives) Vs. Padmini Chandrasekharan (deceased by legal representatives), wherein, it

was held that Section 4(1) of the Act is not retrospective but it is retroactive in operation.

A mere reading of the above precedent would highlight and stress that the Benami Transactions (Prohibition) Act, 1988, even though not

retrospective, nonetheless it is retroactive and that is applicable even to transactions, which emerged anterior to the coming into force of the said

Act. Keeping the principle as found enshrined in the decision supra, the facts should have been analysed by the Courts below and after remand

also it is for the Court concerned to apply the principles correctly and appropriately.

On balance the substantial questions of law are answered as under: Substantial question of law No. (i) is decided to the effect that the parties

as well as the Courts below were not justified in proceeding on the footing that Exs. A3 and A7 were the settlement deeds, even though the recitals

would speak that they were Wills executed by the first plaintiff in favour of the second plaintiff.

Substantial Question of Law No. (ii) is decided to the effect that the provisions of the Benami Transactions (Prohibition) Act 1988 have not been

properly applied and findings given by the lower fora.

Substantial Question of Law No. (iii) is decided to the effect that the first appellate Court was not justified in holding that the suit properties should

be held by the first plaintiff and D1 as trustees for the children of D1. In this regard further evidence has to be analysed, as observed supra.

In this view of the matter I am of the considered view that the judgments of both the Courts below should be set aside and the matter has to be

remitted back to the trial Court so as to enable both sides to file additional pleadings, and whereupon appropriate additional issue shall be framed

by the Court and the parties shall be given due opportunity to adduce additional evidence and thereafter the Court shall decide the matter strictly in

accordance with law. Accordingly it is ordered.

The parties shall appear before the trial Court on 10.6.2013 and thereafter inasmuch as this is an old matter, the trial Court shall see that the

matter is disposed of within three months. The second appeal is disposed of accordingly. No costs.

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