Swaminathan vs Muthammal (Deceased) and Others

Mohan, J.—The second appeal arises out of the following facts. The first Respondent filed a suit in Original Suit No. 1100 of 1972 on the

file of the District Munsee''s Court, Tirupattur, for partition and separate possession of her 1/54 hare in the plaint schedule properties on the

following allegations. The Plaintiff is the widow of one Ramaswami Gounder. She has five sons Thangavelu, Swaminathan, Ramakrishnans

Natarajan and Jayavelu, and three daughters mjammal, Kamajammal and Dbanabaggiyam. Thangavelu died in the year 1962. The first Defendant

is his wife and Defendants 2 and 3 are his son and daughter. Kamalammal also died in the year 1965. Defendants 5 to 9 are the sons of

Kamalammal. The Plaintiff A schedule properties are the ancestral properties of the husband of the Plaintiff and his sons. Out of the income

derived from the plaint A schedule properties, plaint B Schedules properties were acquired. Ramasami Gounder died undivided in the year 1970

leaving behind the Defendants and the Plaintiff as his legal representatives. The Plaintiff is entitled to 1/54 share in the plaint schedule properties.

When a partitition was demanded, the demand was not accorded to and therefore, it became necessary on the part of the Plaintiff to file the suit.

There are no outstanding of debts for the family.

The fourth Defendant, the Appellant in the second appeal, in his written statement contended that the Plaintiff bad not included all the joint family

properties which are available for partition. Hence the suit is bad for partial partition. The family in addition owns several other items which were

acquired out of the joint family funds. The family income per amount is Rs. 10,000. The property in Schedule III to the written statement were

purchased in the name of the Plaintiff for a sum of Rs. 9,000 out of. which Rs. 3,000 was paid on that date and the sun of Rs. 6,000 was paid

before the Sub Registrar. The property described in schedule III (a) was purchased in the name of the Plaintiff for a sum of Rs. 2,500. The

consideration for the properties purchased in the name of the Plaintiff was paid out of the joint family funds. The sale deed are benami in the name

of the Plaintiff. In any event, there was a family arrangement as a result of which the suit for partition would not lie. The first Defendant filed a

separate written statement with which we are not concerned, since the scope of controvercy before me is somewhat different as will be seen

below.

The learned Additional District Munsif who tried the suit, passed a preliminary decree for partition in respect of the joint family properties

included in the plaint schedule. However, the properties standing in the name of the Plaintiff as evidenced by registered sale deeds exhibits B.1 and

B.2 were also held to belong to the joint family and not to her individual properties Aggrieved by this preliminary (SIC) in so far as it related to

properties comprised in exhibits B-1 and B-2, an appeal was preferred by the Plaintiff to the learned Subordinate Judge, Tirupathur, North Aroct

District. The learned Subordinate Judge held that for the purchase under exhibits B-1 and B-2 though it was stated to be benami in the name of the

Appellant-Plaintiff, it was not established that there was any motive for the purchase. Therefore, in the absence of any motive, it would not be

possible to hold that the properties could have been hold to be benami and consequently would be available for partition. Against this judgment,

the fourth Defendant has come up by way of a second appeal.

It is urged by Mr. T.R. Rajagopalan, learned Counsel for the Appellant, on the strength of Kistappa Naicker v. Elumalai Naicker (1976) 89

L.W. 417. and Neikara Abdul Hye Sahib v. Neikara Majid Sahib (1975) 89 L.W. 232. that motive is not essential in every case, though it may be

a pointer towards benami. To hold the properties were purchased benami then in the absence of any motive for benami transaction, in the name of

the female member of a joint family, is not correct and runs conra to the settled authorities. Besides it has been candidly admitted by the Plaintiff

when she tenders the testimony that she did not know who paid consideration for exhibit B-1 and she also stated further that it was her husband

who paid the consideration. When the purchase money was supplied by her husband and admittedly consideration was not flowed from her, it

would testaments to benami as laid down in Thakur Bhim Singh (Dead) by Lrs and Another Vs. Thakur Kan Singh, .

In the case of purchase by a coparcener of a joint Hindu family, the presumption is that that acquisition is from out of the joint family funds, But

in order to rebut the presumption it must be proved by evidence aligned that it was a female holder who with her own money contributed towards

the purchase and therefore in so far as the other side fails to establish the same, the decree and judgment of the lower appellate Court cannot be

sustained.

The learned Advocate-General in trying to support the judgment of the lower appellate Court, cites a decision of this Court in Pattusami

Padayachi Vs. Mullaiammal and Others, and states that no presumption follows merely, because an item of property comes to stand in the name of

a female member of the joint family. In law, it is essential that the person who alleges benami must prove that the consideration followed not from

the ostensible owner. In the instant case, though motive as such loomed large before the lower appellate Court, if other relevant circumstances are

applied, there is absolutely no possibility of holding the transaction benami. There is no evidence on the. side of the Defendant that it was the father

who contributed to the purchase. Only when it is established that the purchase money was supplied by the father, the burden can be said to have

shifted to the Respondent-Plaintiff. But so long as there is no evidence in this regard, no other evidence on the side of the Plaintiff need be looked

into. The mere fact that P.W. 1. admitted that she did not know who paid the consideration does not mean that the other side had proved the

benami character and that the source was from the husband of the Plaintiff. From this point of view, there can be no difficulty in holding that the

judgment of the lower appellate Court is correct. The arguments of Mr. R.S. Venkatachari, appearing for yet another Respondent also are in

support of the case of the first Respondent. He states that no evidence was let in to prove the benami character and in the absence of evidence one

cannot succeed. In support of the same, be cites the decision reported in Thakur Bhim Singh (Dead) by Lrs and Another Vs. Thakur Kan Singh, .

I have held myself in Neikara Abdul Hye Sahib v. Neikara Majid Sahib (1979) 89 L.W. 232. that motive though relevant is not a sine (SIC) non

for benami because, as is well known more often than not, purchase are made in the names of family members without any motive, may be with an

idea to secure a good future for the family members. From that point of view there could be no motive at all. However one thing is beyond doubt.

It is the person who alleges benami, must prove having regard to the various circumstances of the case that the sale though ostensibly stands in the

name of the female member, was in fact purchased by some other person in the name of the ostensible owner. This is because so long as that duty

has not been discharged, the ostensible owner will be the real owner in law. The consideration of equity can have no big part to play in a case of

this character. From this angle, let me analyze the facts of the present case.

It is not the case of D.W. 1 that be knew about the impugned purchase under exhibits. B-1 and B-2. On the contrary, he would go to the extent

of saying that he was not aware at that time of exhibit B-1. About exhibit B-2 it is still worse because the case of D.W. 1 is that she contributed the

purchase money. Therefore, as far as exhibit B-1 is concerned, there is no category evidence to show that it is the father who contributed the

purchase money. The fact that the first Respondent is a member of the joint family by itself cannot lead to the presumption that the purchase was

benami. It has been so laid down by a Division Bench of this Court in Pattusami Padayachi v. Mullaiammal (1976) At page 232 in paragraph 18 it

is observed as follows:

In all cases definite proof is required that the further purchase in the names of joint family members ought to have been made and could not have

been made otherwise than from the surplus income of the family. For a greater reason, the Rule is more strict in the case of properties in the name

of female members. From time immemorial it has become customary amongst Hindus at any rate for females to have properties of their own. Even

our Sastras describe such property of a female as stridhana Property. Therefore, the concept that a female could own properties of her own is an

age long concept. If this concept therefore has been an accepted one from ages, then the fact that a female member in a joint family has properties

in her own name would not necessarily lead to the conclusion that the origin of such properties should be traced to the joint family or to the income

from the income joint family. This principle also is well established.

In paragraph 19 it is observed as follows:

If there is no pleading and if on the side of the Plaintiffs there is too evidence, there is no need for detailed scrutiny of the Case of female members

or persons claiming through them, as to the resources of the female members and as to how they acquired the properties in question. More

stronger language is not necessary to reject the contention of the Plaintiff in the instant case that the properties which stood in the name of the

Pattathammal are to be deemed and held as her own properties.

This decision certainly helps the first Respondent to a very great extent.

In Thakur Bhim Singh (Dead) by Lrs and Another Vs. Thakur Kan Singh, their Lordships of the Supreme Court while laying down the principle

governing the determination of the question whether a transfer is a benami transaction or not formulated the tests as follows:

(1) The burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction.

(2) If it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is

prima facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary ;

(3) the true character of the transaction is governed by the intention of the person who has contributed the purchase money, and

(4) the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the

motives governing their action in bringing about the transaction and their subsequent conduct, etc.

The learned Counsel for the Appellant relies upon the second test. This argument proceeds upon the assumption as if there is evidence in this case

that the purchase money came from a person other than the person in whose favour the property was transferred. In this case, what is stated by

P.W. 1 is that she did not know who contributed the purchase money. But from this it does not follow that the purchase money came from the

father, for which one is required stronger evidence because after all the ostensible ownership covered by the sale deed exhibits B-1 and B-2 is

sought to be displaced. Hence this ruling is not helpful.

The decision in Bhinka and Others Vs. Charan Singh, is the ruling in which their Lordships of the Supreme Court observed as follows:

Where the manager of a joint Hindu family acquired certain properties in his own name and there was sufficient nucleus of joint family property cut

of which those properties might have been acquired and apart from those properties the manager had no other source of income, the presumption

arises that the newly acquired properties were the properties of the joint family. Unless the presumption was rebutted it must prevail.

In the instant case, the evidence in this regard is totally lacking. Hence this decision is also of no use.

For all these reasons, I find no difficulty whatever in upholding the preliminary decree passed by the lower appellate Court. In the result, the

second appeal fails and is hereby dismissed. Having regard to the fact that what has been raised before me is purely a question of law and the

appeal stands dismissed, there will be no order as to costs.