Rajesh vs Alamelu Mangai

M. Duraiswamy, J.—Challenging the Judgment and Decree passed in A.S. No. 19 of 2000 on the file of the Additional District cum Chief Judicial Magistrate Court, Karur, confirming the Judgment and Decree passed in O.S. No. 389 of 1996 on the file of the District Munsif Court, Karur, the plaintiff has filed the above Second Appeal.

The respondent, who is the wife of the appellant, was the defendant in the suit. The plaintiff filed the suit in O.S. No. 389 of 1996 for declaration that the suit properties belonged to the plaintiff.

The brief case of the plaintiff is as follows:--

"According to the plaintiff, ''A'' schedule property was in possession of his father as a lessee. The betrothal function for the marriage of the plaintiff and defendant was conducted on 02.05.1994. The marriage was celebrated on 28.06.1994. The suit properties were purchased by the plaintiff on 11.05.1994 out of the funds provided by the plaintiff and his parents. The sale deed executed in favour of the defendant on 11.05.1994 was a benami transaction. The defendant left the matrimonial home on 30.01.1995 and is living with her parents. The defendant also filed a petition for divorce before the Sub Court, Karur. In these circumstances, the plaintiff has filed the suit for declaration to declare that the suit properties belongs to him."

The brief case of the defendant is as follows:--

"According to the defendant, the suit properties were purchased out of the funds provided by her father, even before her marriage. The defendant denied the contention that the suit properties were purchased by the plaintiff. In order to give security to the defendant''s life, her parents purchased the suit properties in her name. In these circumstances, the defendant prayed for dismissal of the suit."

Before the trial Court, on the side of the plaintiff two witnesses were examined and 31 documents Exs.A.1 to A.31 were marked and on the side of the defendant, two witnesses were examined and 14 documents Exs.B.1 to B.14 were marked.

The trial Court, after taking into consideration the oral and documentary evidences let in by both the parties, dismissed the suit. Aggrieved over the Judgment and Decree of the trial Court, the plaintiff preferred an appeal in A.S. No. 19 of 2000 on the file of the Additional District cum Chief Judicial Magistrate Court, Karur and the lower Appellate Court also confirmed the Judgment and Decree of the trial Court and dismissed the appeal. Aggrieved over the concurrent findings of the Courts below, the plaintiff has filed the above Second Appeal.

Heard Mr. R.T. Arivukumar, learned counsel appearing for the appellant and Mr. V. Sitharanjandas, learned counsel appearing for the respondent.

At the time of admitting the Second Appeal, the following substantial questions of law arose for consideration:--

"1) Whether both the Courts below failed to note that the sale consideration for Ex. A.2 was paid by the appellant and his father and that the respondent did not pay any sale consideration for Ex. A.2?

2) Whether both the Courts below failed to note that Ex. A.2 is a benami transaction and that the appellant is the absolute owner of the suit property?

3) Whether both the Courts below failed to draw adverse inference against the respondent since she did not figure as a witness to prove her contention?"

On a careful consideration of the materials available on record and the statement made by the learned counsel appearing on either side, it could be seen that the appellant/plaintiff is the husband of the respondent. It is also not in dispute that their betrothal function was celebrated on 02.05.1994 and the marriage was celebrated on 28.06.1994. According to the plaintiff, the suit properties, which were purchased under Ex. A.2 sale deed, dated 11.05.1994, were purchased by him in the name of the defendant. The defendant contended that the suit properties were purchased in her name out of the funds provided by her father.

On a perusal of Ex. A.2, sale deed dated 11.05.1994, it is clear that there is no recital in the sale deed that the funds for the purchase of the properties was provided by the plaintiff. In the absence of any specific recital to that effect, one can come to a conclusion that the sale consideration money was provided only by the purchaser. One cannot assume that the money for the purchase of the properties was provided by the husband of the defendant. That apart, the properties were purchased by the defendant on 11.05.1994 in her name. The contention of the plaintiff was that the properties were purchased by him in the name of the defendant. In fact, on the date of purchase of the properties, they were not husband and wife and the marriage was performed only on 28.06.1994. That being the case, even before the date of marriage, the reason for purchasing the property in the name of the defendant was not properly explained by the plaintiff. One can understand that if a husband will purchase the properties in the name of his wife, after the marriage. But, in this case, the plaintiff alleges that he purchased the properties even prior to the marriage.

The learned counsel appearing for the respondent submitted that the issue as to whether the transaction is a benami transaction or not is a question of fact and not a question of law. In support of his contention, the learned counsel relied upon a Judgment in G. Ramasami v. R. Kamala and others reported in (2010) 3 MLJ 867, wherein this Court held that the said issue is not a question of law.

The learned counsel for the respondent also relies on the Judgment in Minor Balamurugan, rep. By next friend and mother Baby Saroja v. T. Selvaraj and others reported in 2014(2) MNW (Civil) 738, this Court held that when the properties are purchased in the name of wife or unmarried daughter a presumption can be raised that the properties are purchased for the benefit of wife or unmarried daughter as the case may be and such presumption is rebuttable and when any other person claims absolute right, he has to establish that the persons name in the documents is not the real owner he is only a benamidar.

Under Section 3(2) of the Benami Transactions (Prohibition) Act, 1988, unless the contrary is proved that the purchase of the properties by the person in the name of his wife or his unmarried daughter as the case may be, was for her benefit.

The learned counsel for the petitioner also relied upon the Judgment in Valliammal (D) by Lrs. Vs. Subramaniam and Others, , the Honourable Supreme Court held that the law presumes the purchaser to be the owner of the property purchased and the onus to prove that he is not the real owner but a benami holder lies on the person pleading.

In the case on hand, though the plaintiff had pleaded that the defendant is not the real owner and that he is the real owner that contention was not established by him by any acceptable evidence. That apart, as already stated, on the date of purchase of the properties, the plaintiff and defendant were not husband and wife. The vendor of the defendant was examined as P.W.2. The vendor having not said anything specifically in the sale deed that he received the sale consideration only from the plaintiff, he cannot set up a case contrary to the recitals found in Ex. A.2, sale deed. Since on the date of purchase of the properties, the plaintiff and defendant were not husband and wife, the exemption under Section 3(2) of the Benami Transactions (Prohibition) Act, 1988 is not applicable.

In view of the above referred Judgments, I am of the view that the Courts below have rightly dismissed the suit. In these circumstances, I find no ground much less any substantial questions of law to interfere with the concurrent findings of the Courts below. The Second Appeal is liable to be dismissed. Accordingly, the same is dismissed. There shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.