TaxTMI 
TaxTMI 
2021 (6) TMI 552
X X X X Extracts X X X X
X X X X Extracts X X X X
....pondent. The appellants 3 and 4 were brought on record as L.Rs. of the deceased 1st appellant in the course of trial and the respondent No. 6 being the alleged legatee under the Will of the deceased 1st appellant. Similarly, the respondents 3 to 5 were brought on record as L.Rs. of the 2nd respondent during trial. The respondents 7 and 8 were brought on record being the legal representatives of the 6th respondent and appellants 3 and 4 are also L.Rs. of the 6th respondent, who was the wife of the deceased 2nd appellant. 5. The appeal against the 3rd respondent was dismissed for default by an order dated 18.10.2011. No attempt was made to get the appeal restored against her. 6. The deceased 1st appellant was running firewood business in Item No. 2 of plaint 'A' schedule. His elder brother by name Sri Vemula Sreerama Murthy had no issues and had adopted Sri Srimannarayana Murthy, one of the sons of the 1st appellant. Under a registered partition deed dated 10.11.1941 (Ex. B1), Sri Vemula Sreerama Murthy, their another brother Sri Venkatachalam and the 1st appellant got divided their properties. 7. Out of his business, the 1st appellant had also acquired substantial e....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e, in the above circumstances, finding that it was no longer convenient for them to remain joint, the appellants claimed that they were constrained to institute the suit for partition. 10. The case of the 1st respondent is one of denial of purchase of item No. 1 of plaint 'A' schedule properties by his father benami in his name. He asserted that it was purchased from and out of his own funds. He claimed that ever since the partition of the year 1979 all the properties were divided completely except the one that were left joint. He claimed that the saw machine viz., item No. 2 of plaint 'B' schedule exclusively belonged to him. The 1st respondent also denied that there was a common mess for all of them till the year 1985 contending that they were all living separately in the same house in different portions. He further contended that the title deeds relating to item No. 1 of plaint 'A' schedule were given by him to his father, when a notice was received from the officer of the Sub-Registrar, to get his advice, which however the 1st appellant did not return. 11. While admitting that differences arose among women members of the family in the year 1985, th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er a Will dated 02.02.1988? 2. Whether the 6th defendant is entitled for 1/4th share in items 2 and 3 of plaint 'B' schedule property? 15. At the trial, the deceased 1st and 2nd appellants examined themselves as P.W. 1 and P.W. 2 respectively. P.W. 3 is one of the attestors to Ex. X1 Will (Ex. A24 is its registration extract) and whereas P.W. 4 examined on their behalf was then working in Sub Registrar's Office at Machilipatnam. They relied on Ex. A1 to Ex. A26 and Ex. X1 to Ex. X4. The 1st respondent examined himself as D.W. 1. D.W. 2, an alleged mediator in the mediation, was examined on behalf of the 1st respondent and he relied on Ex. B1 to Ex. B7 in support of his contention. 16. On the material and evidence, the learned trial Judge held that it was not open for the appellants to claim item No. 1 of the plaint 'A' schedule properties on account of the operation of Section 4(1) of the Prohibition of Benami Property Transactions Act, 1988 though on facts held that there is material to support the version of the 1st appellant that he purchased this property in the name of the 1st respondent. The learned....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Sri Srimannarayana was occupying a portion of two rooms towards South in this house. He also deposed that they were all paying a rent of Rs. 60/- per month. It remained undisputed that the deceased 1st appellant by the date of his death (03.07.1993) was staying with the 2nd appellant. It is in the evidence of the 1st appellant himself as P.W. 1 that he continued to stay with the 2nd appellant and his family in that house. 22. This house stood purchased as seen from Ex. A1 and Ex. A2 sale deeds dated 28.03.1985 in the name of the 1st respondent. Sri N.K. Raghavendra Rao executed Ex. A1 selling away a portion of this house for valuable consideration of Rs. 45,114/-. Sri N.S. Madhava Rao through his GPA Sri N. Gopala Krishna Rao sold another portion of this house as seen from Ex. A2 sale deed for valuable consideration of Rs. 30,927/-. 23. It is the contention of the appellants that these sales under Ex. A1 and Ex. A2 sale deeds are benami transactions in the name of the 1st respondent and that this house was purchased by the deceased 1st appellant from and out of the joint family funds, which he could pool up. The 1st respondent is disputing it on the ground that he had purcha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....9;A' schedule. 27. Thus, by the year 1979, there was disruption in the status of this joint family. To call it a coparcenary, particularly in terms of Ex. B1 partition deed and stand of the parties in this case, it is rather difficult to hold that there was sufficient nucleus for the 1st appellant upon Ex. B1 partition, to throw the same into common hotchpot and to improve the estate and assets of this family. 28. The learned trial Judge took into consideration these factors and rightly observed that the erstwhile joint family did not continue by the date of Ex. A1 and Ex. A2 sale deeds when item No. 1 of the plaint 'A' schedule house was purchased. The learned trial Judge elaborately discussed the fact situation and legal position in this context. The reasons so assigned are proper and the entire issue was considered in correct perspective. 29. These factors are considered in as much as the predominant question now is as to application of Section 4(1) of the Prohibition of Benami Property Transactions Act, 1988. 30. Section 4(1) of this Act reads as under: 4. Prohibition of the right to recover property held benami.--(1) No suit, claim or action to....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing the effect of these provisions of this Act, whether retrospective or retroactive. As seen from the judgment under appeal, the learned trial Judge took into consideration the decisions of the Hon'ble Supreme Court in Mithilesh Kumari and another vs. Prem Behari Khare AIR 1989 SC 1247, Nand Kishore Mehra vs. Sushila Mehra AIR 1995 SC 2145, Rajagopal Reddy vs. Padmini Chandrasekharan AIR 1996 SC 238 and Smt. Rebti Devi vs. Ram Dutt and another AIR 1998 SC 310 and held that in view of Section 4(1) of this Act, the suit is barred and that Section 4(3) of this Act did not save this situation. 38. The prepositions of law considered by the learned trial Judge are not disputed on behalf of the parties in the course of hearing in this appeal. When Section 4(1) of this Act clearly applies to this case, the suit filed by the appellants, as rightly held by the learned trial Judge stood barred. Thus, the appellants did not have a right to promote a case of benami, of the transactions covered by Ex. A1 and Ex. A2 sale deeds. 39. However, the learned trial Judge took into consideration the evidence on record particularly of the deceased appellants 1 and 2 as P.W. 1 and P.W. 2 respect....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at the demand drafts were purchased towards sale consideration in the name of these vendors by the 1st appellant. Ex. A18 and Ex. A19 receipts in respect of payment of registration charges and Ex. A20 and Ex. A21 the powers of attorney enabling to execute sale deeds on behalf of the vendor under Ex. A2 are also relied on in the same context. Thus, the appellants contend that the documentary evidence so produced offer sufficient material to substantiate their claim that the funds for acquisition of this house were provided by the deceased 1st appellant alone and that the 1st respondent did not in any manner contribute. 44. The deceased 1st appellant is none other than the father of the 2nd appellant and the respondents 1 and 2. The 2nd appellant as P.W. 2 deposed that the title deeds were with his father in respect of these properties, though the sale deeds were obtained in the names of other members of the family. This statement was made by the 2nd appellant at the trial in the context of purchase of not only item No. 1 of the plaint 'A' schedule but also a site behind this house. Admittedly the 2nd appellant had purchased this site from the same vendors. He further depo....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 1st respondent to examine any of the attestors or scribe to these sale deeds as pointed out by the learned trial Judge, is not sufficient to accept the version of the appellants. In fact, it was for the appellants to have had examined them to support their contention that the funds had flown from the 1st appellant to acquire this property, to prove and demonstrate that he had taken active role in those circumstances including at the time of registration of the documents. 51. One of the contentions of the appellants is that Ex. A1 and Ex. A2 sale deeds were obtained in the name of the 1st respondent on account of an astrologer's advice. This reason is obviously false. If contents of Ex. X1 Will and testimony of the 2nd appellant as P.W. 2 are considered for argument sake, it is clear that it was with a view and intention to get over and avoid any difficulty or liability in terms of Income Tax Act, these sale deeds were obtained in the name of the 1st respondent. Thus, one of the strong circumstances sought to rely on by the appellants and to explain the purpose behind in obtaining Ex. A1 and Ex. A2 in the name of the 1st appellant, falls to ground on their own showing. 52....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l was scribed by Sri Yedida Sesha Sai and attested by P.W. 3-Sri K. Vijayakumar, Sri G.S.R. Prasad, Sri T. Ranga Rao and Sri V.S. Ramakrishna. The evidence of P.W. 3 is also that, it was to the dictation of the 1st appellant, this Will was scribed by Sri Sesha Sai and this transaction took place at about 3.00 p.m. or 4.00 p.m. 57. This witness was subjected to extensive cross-examination on behalf of the 1st respondent. 58. As rightly contended for the 1st respondent, it is the burden of the appellants to dispel any circumstances surrounding execution of this Will, which give raise to suspicion. The 1st respondent cannot be asked to do something negative to make out that there are circumstances which impel to hold that this Will did not reflect a genuine transaction. 59. In the additional written statement, the 1st respondent disputed execution of this Will not only on the ground that it was brought out by the 2nd appellant by manipulation and even otherwise it was an outcome of undue influence exerted by the 2nd appellant upon the 1st appellant. However, at the trial, as seen from the tenor of cross-examination of P.W. 2 and P.W. 3, the defence of the 2nd respondent was t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the nature of the 2nd appellant to get at the properties and it was he who had fomented and driven his father to this litigation. 66. Ex. A11 legal notice was issued before the institution of this suit to the 1st respondent. It is dated 23.08.1988. It was issued as per its contents upon the instructions of the 1st appellant also. If Ex. A24 Will was executed on 02.02.1988 and was registered on 21.07.1988, Ex. A11 legal notice should have referred to it. It cannot be stated that the situation then did not require exposure of this Will. Yet, if at all the 1st appellant had an intention to give away the properties to the 2nd appellant and his family, since it is stated that this Will is his last will and testament, finding its reference in Ex. A11 and also in the plaint would have been appropriate. The 1st appellant as P.W. 1 could have revealed his intentions to bequeath his share of the properties to P.W. 2 and his family members at the trial, under the original of Ex. X1 Will, if it was in existence by then. It would have been the best evidence possible for the appellants in this respect. It is a serious and fatal omission to affect the credibility of this transaction. 67. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dlamannadu Land Mortgage Bank, Pedana for this purpose, where, as seen from Ex. A23, the 2nd appellant had borrowed Rs. 66,000/- on 17.10.1981 agreeing to repay in instalments and that this loan was closed on 26.09.1989 as per its entries. 72. The 1st respondent also contended that he has purchased this tractor trailer in the year 1981, for Rs. 75,000/-, sold it away for Rs. 40,000/- and that, it belonged to him absolutely. For this purpose, according to the 1st respondent, he had raised a loan on 17.10.1981 upon mortgaging property on 14.10.1981 and this entire loan was redeemed by him on 21.04.1988. Ex. B6 dated 23.06.1989 is the discharge certificate issued by Krishna District Central Cooperative Bank, Machilipatnam in this respect relied on by the 1st respondent. 73. Admittedly, this tractor trailer was being used by the 1st appellant. The learned trial judge considering the material on record while discussing issue no. 3 accepted the contention of the 1st respondent and rightly. There is no proof adduced by the appellants that this tractor trailer remained property for common use of all these parties. Nor evidence offered by them proved that this tractor was acquired joi....