TaxTMI 
TaxTMI 
2019 (5) TMI 1086
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....he first defendant is the wife of one Narayanasamy Mudaliar. That, the said Narayanasamy Mudaliar and original defendant no.1 had one son and three daughters namely Elumalai (son), Ranganayaki (daughter), Nagabushanam (daughter) and Navaneetham (daughter). That, the son Elumalai and daughter Ranganayaki had died. The first plaintiff is the wife of Elumalai, the second plaintiff and plaintiff nos. 3 to 8 are the husband and children of the deceased Ranganayaki. That, Elumalai and the first plaintiff did not have issue. According to the original plaintiffs, Narayanasamy Mudaliar sold the ancestral properties and purchased the suit property in the name of first defendant Mangathai Ammal (wife of Narayanasamy Mudaliar). Therefore, it was the case on behalf of the plaintiffs that Narayanasamy Mudaliar and his son Elumalai are entitled to half share of the ancestral properties. That, it was the case on behalf of the plaintiffs that the same Narayanasamy Mudaliar had died twenty years back to the filing of the suit. His share in the properties was inherited by Elumalai, defendant nos. 1 and 2 viz Nagabushanam Ammal and Ranganayaki Ammal. That, the Ranganayaki died about six years before f....
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....ficiaries of the Will did not take care of the first defendant, she revoked the Will on 11.06.1990. 3.2 Defendant nos. 2 and 3 supported defendant no.1. According to defendant nos. 2 and 3, defendant no.1 mortgaged the property with defendant no. 3 for a valuable consideration, which was also known to the plaintiffs. Defendant nos. 2 and 3 also adopted the written statement filed by defendant no.1. 3.3 That the learned Trial Court framed the following issues: "1) Whether the suit schedule properties are ancestral properties of husband of the 1st plaintiff namely Elumalai and the deceased Narayansamy? 2) Whether it is true that the 1st defendant had managed the suit schedule properties being the Manager of the Family? 3) Whether it is true that the Suit Schedule properties are jointly enjoyed by all the family members as Joint Family Property? 4) Whether the plaintiffs are entitled to claim partition in view of the Release Deed dated 24.04.90 executed by Nagabooshanam Ammal? 5) Whether it is true that the 1st defendant had executed a Will on 11.2.87 to and in favour of plaintiffs in respect of suit schedule property and revoked the ....
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....therefore, the finding that the properties were purchased by Narayanasamy Mudaliar is erroneous. 5.2 It is further submitted by Shri V. Prabhakar, learned Counsel appearing on behalf of the appellants original defendant nos.1 to 3 that if it was the case on behalf of the original plaintiffs that the properties purchased in the name of defendant no.1 were the benami transactions, in that case, the onus is/was upon the plaintiffs to prove by leading cogent evidence that the transactions were benami transactions. It is submitted that in the present case, the plaintiffs have failed to discharge the onus to prove that the transactions were benami transactions. It is submitted that, both, the Trial Court as well as the High Court had erroneously shifted the burden upon the defendants to prove that the transactions/Sale Deeds in favour of defendant no.1 were not benami transactions. It is submitted that the aforesaid is contrary to the settled proposition of law laid down by this Court. 5.3 It is further submitted by Shri V. Prabhakar, learned Counsel appearing on behalf of the appellants original defendant nos.1 to 3 that in the present case, solely on considering two documents, na....
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....appellants that as the transactions/Sale Deeds in favour of defendant no.1 were prior to the enactment of the Hindu Succession Act and the amendments made thereto from time to time, even it can be said that the intention of the Narayanasamy Mudaliar to purchase the properties in the name of defendant no.1his wife was in order to provide the wife with a secured life in the event of his death. 5.7 Shri V. Prabhakar, learned Counsel appearing on behalf of the appellants original defendant nos.1 to 3 submitted that even otherwise, the plaintiffs have failed to prove by leading cogent evidence that the transactions of sale in favour of defendant no.1 were benami transactions. It is submitted by Shri V. Prabhakar that even in the plaint also there were no specific pleadings that the sale transactions of the suit properties in favour of defendant no.1 were benami transactions. It is submitted that even the learned Trial Court also did not frame any specific issue with respect to benami transactions. It is submitted that even otherwise on merits also and on considering the recent decision of this Court in the case of P. Leelavathi v. V. Shankarnarayana Rao (2019) 6 SCALE 112, in which a....
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....lease Deed by Nagabhushanam in favour of defendant no.1 suggests that defendant no.1 also considered the share of the daughter Nagabhushanam by treating the suit properties as Joint Family Properties. 6.4 It is further submitted by Shri G. Balaji, learned Counsel appearing on behalf of the respondents original plaintiffs that the Will dated 11.02.1987, executed by defendant no.1, also included even the properties exclusively belonging to Narayanasamy Mudaliar. It is submitted, therefore, the intention can be gathered from Exh. B8 and Exh. B9 that the suit properties are Joint Family Properties and therefore liable for partition and not exclusive properties of defendant no.1. 6.5 It is further submitted by Shri G. Balaji, learned Counsel appearing on behalf of the respondents original plaintiffs that the suit properties were purchased in the name of defendant no.1 during the lifetime of Narayanasamy Mudaliar. It is submitted that original defendant no.1 had no independent income. It is submitted that Narayanasamy Mudaliar had ancestral properties/agricultural lands which were generating income and he purchased all the properties in the name of his wifedefendant no.1 from the i....
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.... the subject matter of the present appeal. 8. While considering the issue involved in the present appeal viz. whether the transactions/Sale Deeds in favour of defendant no.1 can be said to be benami transactions or not, the law on the benami transactions is required to be considered and few decisions of this Court on the aforesaid are required to be referred to. 8.1 In the case of Jaydayal Poddar (Supra) it is specifically observed and held by this Court that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be sold. It is further observed that this burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of the benami transaction or establish circumstances unerringly and reasonably raising an interference of that fact. In paragraph 6 of the aforesaid decision, this Court has observed and held as under : "6. "It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden h....
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....ention 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." 8.2 In the case of P. Leelavathi (Supra) this Court held as under : "9.2 In Binapani Paul case (Supra), this Court again had an occasion to consider the nature of benami transactions. After considering a catena of decisions of this Court on the point, this Court in that judgment observed and held that the source of money had never been the sole consideration. It is merely one of the relevant considerations but not determinative in character. This Court ultimately concluded after considering its earlier judgment in the case of Valliammal v. Subramaniam (2004) 7 SCC 233 that while considering whether a particular transaction is benami in nature, the following six circumstances can be taken as a guide: "(1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, ....
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.... 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. It is required to be noted that Narayanasamy Mudaliar, who contributed part sale consideration by purchasing property at Exh. B3, might have contributed being the husband and therefore by mere contributing the part sale consideration, it cannot be inferred that Sale Deed in favour of the defendant no.1wife was benami transaction and for and at behalf of the joint family. Therefore, the Trial Court as well as the High Court have committed a grave error in holding the suit properties as benami transactions/ancestral properties on the basis of the document at Exh. B3. 9.2 Similarly, merely because of the stamp duty at the time of the execution of the Sale Deed at Exh. B4 was purchased by Narayanasamy Mudaliar, by that itself it cannot be said that the Sale Deed at Exh. B4 in favour of defendant no.1 was benami transaction. It is required to be noted that except the aforesaid two documentary evidences at Exh. B3 and B4, no other documentary evidence/transaction/Sale Deed in favour of defendant no.1 have b....
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....ld by Narayanasamy Mudaliar, it can be seen that all the suit properties purchased in the name of defendant no.1 were much prior to the sale of the ancestral properties by Narayanasamy Mudaliar. The ancestral property was sold by the Narayanasamy Mudaliar (Exh. A3) was on dated 11.11.1951. However, the Sale Deeds at Exh. B3, B4, B5, B6 and B7 which are in favour of defendant no.1 were much prior to the sale of the property at Exh. A3. Therefore, also it cannot be said that the suit properties were purchased in the name of defendant no.1 by Narayanasamy Mudaliar from the funds received by selling of the ancestral properties. 11. Even considering the observations made by this Court in paragraph 10 in the case of Om Prakash Sharma (Supra) it can be said that Narayanasamy Mudaliar might have purchased the properties in the name of defendant no.1 in order to provide his wife with a secured life in the event of his death. It is required to be noted that it was the specific case on behalf of the defendant no.1 that the suit properties were purchased by her from the Stridhana and on selling of the jewellery. 12. It is required to be noted that the benami transaction came to be amende....