Madras High Court
A.Mathu Bala vs A.Kalarani on 24 February, 2025
Author: N.Senthil Kumar
Bench: N.Senthil Kumar
A.S.(MD)No.150 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 11.12.2024
PRONOUNCED ON : 24.02.2025
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
AND
THE HONOURABLE MR.JUSTICE N.SENTHIL KUMAR
A.S.(MD)No.150 of 2015
and
M.P(MD)No.1 of 2015
A.Mathu Bala .. Appellant/4th Defendant
Vs
1.A.Kalarani
2.A.Premavathy
3.A.Manoharan
4.A.Rajasekaran
5.A.Gunasekaran
6.C.Kumar
7.C.Sasikala
8.C.Bhuvaneswari
(Respondents 2, 3, 4,
6 to 8 remained exparte
in the lower court and
notice to these respondents
may be dispensed with) .. Respondents 1 to 3 / Defendants 1 to 3
and 5 to 8
Prayer: Appeal suit filed under Order 41 Rule 1 r/w Section 96 of C.P.C.
against the judgment and decree made in O.S.No.128 of 2012 dated
28.04.2015 on the file of V Additional District Court, Madurai.
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A.S.(MD)No.150 of 2015
For Appellant : Mr.P.T.S.NArendravasan
For Respondents : Mr.S.Sitharthan for R1
RR2 to 4, 6 to 8 – set exparte
(vide in EB)
R5 – No appearance
JUDGMENT
[Judgment of the Court was made by RMT.TEEKAA RAMAN, J.]
This appeal is preferred challenging a preliminary decree for
partition passed in O.S.No.128/2012 by the V-Additional District Court,
Madurai, in which, the trial Court has declared the plaintiff 1/7 shares in
two items of immovable properties involved in the suit.
2.The two items of properties were purchased by one
Pappathi Ammal respectively under Ex.A1, which is equal to Ex.B2-sale
deed dated 11.02.1962 and under Ex.A2 sale deed dated 03.08.1973. To
repeat these properties were described respectively as ‘A’ and ‘B’ schedule
items of properties.
3. Pappathi Ammal died on 27.05.1997. Her husband
Alagarsamy died on 12.09.2011. They had seven children and they are
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A.S.(MD)No.150 of 2015
the plaintiff, defendants 1 to 5 and one Chandran. Chandran had died as
on the date of the suit and his widow and children are defendants 6 to 8.
All these seven children, three were daughters, of whom, the plaintiff and
the 1st defendant and the 4th defendant.
4. The case of the plaintiff is straight forward. On the
demise of Pappathi Ammal, who died intestate, the properties devolved
on all the seven children and Alagarsamy and since Alagarsamy too had
died intestate, it devolved equally to their seven children or the legal
heirs, as the case may be.
5. Only the 4th defendant resisted the suit. Her contention is
that the two schedules of immovable properties were purchased by
Alagarsamy in the name of Pappathi Amal and hence, Pappathi Ammal
was only the benami for Alagarsamy. Secondly, on 17.01.1991 under
Ex.B1, Alagarsamy had settled ‘B’ schedule property in favour of the 4th
defendant and this document was attested by his other children, including
the plaintiff. That apart, on 12.09.1996, Alagarsamy had executed Ex.B4
registered Will as regards ‘A’ schedule property making specific bequeath
of specific portion of ‘A’ schedule property to his children. Thereafter, on
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A.S.(MD)No.150 of 2015
03.02.2006, vide Ex.B5, he executed another registered Will as regards
‘B’ schedule property. This document was cancelled under Ex.B5 dated
03.02.2006 and fresh bequeath was made under this Will and the plaintiff
was excluded from inheriting the legacy under Ex.B5.
6. The dispute went to trial and during trial, on behalf of the
plaintiff, her son was examined as PW1 and he produced Ex.A1 to Ex.A5
before the Court. For the sole contesting 4th defendant, her husband has
examined himself as DW1 and he produced Ex.B1 to Ex.B6, of which,
Ex.B4 and Ex.B5 are the Wills.
7. On appreciating the evidence, the trial Court rejected the
case of the 4th defendant that Pappathi Ammal was only a benami for her
Alagarsamy and hence, held Ex.B4 and Ex.B5 are incompetent
documents and it cannot confer any title on the legatees to their own. On
the same ground, it had rejected Ex.B1 settlement deed as well and on the
above reasoning, it proceeded to declare 1/7th share to the plaintiff for
both items of suit properties.
8. This decree is now under challenge.
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A.S.(MD)No.150 of 2015
9. Points for consideration:
(i) Whether Pappathi Ammal is benami for her husband; and
(ii) Whether at all Alagarsamy had any right to deal with the
properties?
10. The principle plank of 4 th defendant/appellant’s case is that
the two items of suit properties were held benami by Pappathi Ammal, as
they were purchased by Alagarsamy in her name under Ex.A1 and Ex.A2,
dated respectively 11.02.1962 and 03.08.1973.
11. Before getting into the merits of the context, one fact can be
eliminated from the line of consideration and it pertains to Ex.B4 and
Ex.B5. Irrespective of the fact as to whether Alagarsamy was the real
owner of the suit properties, the fact remains that the 4 th defendant has
chosen not to examine any of the attesting witnesses to Ex.B4 and Ex.B5.
Therefore, these two Wills stand as not proved.
12. Heard Mr.PT.S.Narendravasan, learned counsel for the
appellant and Mr.S.Sitharthan, learned counsel for the 1st respondent.
There is no representation for the 5th respondent.
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13. Point for determination of this appeal : As narrated
above, whether father Alagarsamy was the real owner of the property or
Pappathi Ammal is the benami for her husband.
13(a) This suit is filed by the sons and daughters of the said
Pappathi Ammal and Alagarsamy. One of the daughter namely, Kalarani
filed the suit for partition of the plaintiff’s 1/7th share in the suit property
by means and bounds and for injunction.
14(a) The 5th defendant filed a written statement.
14(b) The sum and substance of the written statement is that
Pappathi Ammal had no ancestral property or self acquired property and
she had no individual income by doing business. The suit property was
only purchased by the father Alagarsamy Naidu with his hard earned
money acquired through hard work and the said Alagarsamy Naidu was
in possession and enjoyment of the suit property till his death as the
Kartha of the family and he also executed a Will dated 12.09.1996 and
subsequently cancelled the same and executed another Will dated
03.02.2006.
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14(c) During trial, the plaintiff’s son Anand was examined as
PW1 and Ex.A1 to Ex.A5 were marked. The husband of the 4th defendant
was examined as DW1 and Ex.B1 to Ex.B20 were marked.
15(a) As per Ex.A1 and Ex.A2, the endorsement by SRO for
handing over the amount in his presence, the sale deed stands in the
name of the purchaser, Pappathi Ammal, the mother of all the parties
herein.
15(b) Now the plea of benami was raised by one of the
daughter against the other siblings.
15(c) In the judgment of this court dated 06.06.2024 in
A.S.No.664 of 2016 rendered by one of us, have held that the plea of
benami can be raised only by the husband in respect of the property
stands in the name of the wife as benami.
15(d) In the decision reported in Minor Balamurugan Vs.
T.Selvaraj and others reported in 2014 (2) MWN (Civil) 738, wherein it
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A.S.(MD)No.150 of 2015
was observed that when any other person claims absolute right, he has to
establish that the persons name in the document is not the real owner and
he is only a benamidar.
15(e) When the husband claims that the wife is only a
benamidar and he is the owner, the burden is on him to prove the same as
held in the Judgment of a Division Bench of the Hon”ble Supreme Court
in Valliammal (D) by L.Rs. v. Subramaniam and others, 2004 (5) CTC 60
(SC) : 2004 (7) SCC 233.
15(f) In the Judgment U. Bhaskaran v. Bank of India and
others, 2004 (1) CTC 488 (DB), the Hon”ble Division Bench relied upon
the Judgment of the Supreme Court in Nand Kishore Mehra v. Sushila
Mehra, reported in 1995 (2) CTC 356 (SC) and 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.
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15(g) There is a general presumption that the property in
whose name the documents stands is the true owner and burden of proof
is on the opposite party who denies the same.
15(h) Burden of proving that a sale is benami lies on person
who alleges transaction to be a benami. Six circumstances pointed as a
guide to determine nature of transaction. They are: source of money to
purchase, nature and possession of property after purchase, motive for
giving benami colour, relationship between parites, custody of Title
Deeds after sale and conduct of parties after sale.
16. Section 4 of the Benami (Prohibition) Transaction Act
imposes prohibition in the matter of filing of suits or taking of defences
in respect of property held benami i.e., covered by benami transaction
reads, thus :
“4. Prohibition of the right to recover property held benami.–
(1) No suit, claim or action to enforce any right in
respect of any property held benami against the person in
whose name the property is held or against any other person
shall lie by or on behalf of a person claiming to be the real
owner of such property.
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(2) No defence based on any right in respect of any
property held benami, whether against the person in whose
name the property is held or against any other person, shall be
allowed in any suit, claim or action by or on behalf of a person
claiming to be the real owner of such property.
(3) Nothing in this section shall apply-
(a) Where the person in whose name the property is
held is a coparcener in a Hindu undivided family
and the property is held is a copancener in Hindu
undivided family and the property is held for the
benefit of the coparceners in the family; or
(b) Where the person in whose name the property is
held is a trustee or other person standing in a
fiduciary capacity, and the property is held for the
benefit of another person for whom he is a trustee
or towards whom he stands in such capacity.”
17. Since the provisions in Sections 3 and 5 could be of
assistance in a proper appreciation of the said arguments of learned
counsel, they are excerpted:
Section-3 “3. Prohibition of Benami Transactions.–
(1) No person shall enter into any benami transaction.
(2) Nothing in sub-section (1) shall apply to the
purchase of property by any person in the name of his
wife or unmarried daughter and it shall be presumed,https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/03/2025 04:20:17 pm )
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A.S.(MD)No.150 of 2015unless the contrary is proved, that the said property had
been purchased for the benefit of the wife or the
unmarried daughter.
(3) Whoever enters into any benami transaction
shall be punishable with imprisonment for a term which
may extend to three years or with fine or with both.
(4) Notwithstanding anything contained in the
Code of Criminal Procedure, 1973 (2 of 1974), an
offence under this section shall be non-cognizable and
bailable.
Section-5 “5. Property held benami liable to
acquisition.–
(1) All properties held benami shall be subject to
acquisition by such authority, in such manner and after
following such procedure, as may be prescribed.
(2) For the removal of doubts, it is hereby
declared that no amount shall be payable for the
acquisition of any property under sub-section (1).” 24.In
short, burden of proving that the property was not
purchased for the benefit of wife or unmarried daughter
lies on husband or father.
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18. It remains to be stated that admittedly when the property
stands in the name of the wife, the purchase even assuming to be made by
the husband in the name of the wife, deemed to be for the benefit of the
wife as per the Benami (Prohibition) Transaction Act. Admittedly, the
defendant has to prove the plea of benami. In view of the position in the
preceding paragraph, this Court finds that the defendant has not at all
lend any positive evidence and has no evidence to show that father has
funded amount for the purchase of the property. When he failed to
discharge the said burden, he has to fall.
19(a) As per Ex.B4, Pappathi Ammal died on 27.05.1974.
As per Ex.A1, A-Schedule property was purchased by the said Pappathi
Ammal under Ex.A1=Ex.B2 dated 11.02.1962. As per Ex.A2=Ex.B14,
B-Schedule property was purchased by Pappathi Ammal on 03.08.1973.
Mother Pappathi Ammal died on 27.05.1974 as could be seen from the
death certificate – Ex.A4. Father Alagarsamy died on 12.09.2011 as per
Ex.A5. The suit property appears to be dwelling house.
19(b) According to the defendant, father Alagarsamy alleged
to have executed the Will under Ex.B4 on 12.09.1996 in respect of A-
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A.S.(MD)No.150 of 2015
Schedule property. Subsequently, cancelled and executed Ex.B5 on
03.02.2006 in respect of A-Schedule property and his death certificate is
Ex.B6=Ex.A5. As stated supra whether the said Alagarsamy has right to
execute the settlement decree or the Will in respect of the ‘A’ and ‘B’
Schedule property. Absolutely, no witness has been examined in support
of the Ex.B1-settlement deed, assumes significance.
20. Learned counsel for the appellant/1st defendant would
contend that the plaintiff is one of the attestor in the settlement deed.
When PW1 confronted with Ex.B1-settlement deed, he denied the
alleged signature of his mother namely the plaintiff and the defendant has
not taken any steps to establish that the signature found in Ex.B1 in the
attested portion is that of the plaintiff. When the defendant has come
forward with specific case that the plaintiff is the 6th attestor in Ex.B1, he
has to prove the same. However, as observed earlier PW1 has denied the
signature.
21(a) No doubt to that Pappathi Ammal mother died in the
year 1974 and father died in the year 2011. As stated supra, PW1 has
categorically denied the signature found in Ex.B1 as that of the plaintiff
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and hence, the trial Court has rightly come to the conclusion that the
defendant had projected the case that he has got the settlement from his
father under Ex.B1. Admittedly, father has no title to convey and the plea
of benami as to the nature and status of the father that the mother was the
benami for the father cannot be raised by the son as held in judgment in
Jayalakshmi’s case cited supra and in such circumstances, Alagarsamy
has no title to convey under Ex.B1.
21(b) Even viewing from different angle Ex.B1 has not
proved in the manner known to law. No attestor has been examined in
this regard. Similar finding rendered by the lower Appellate Court does
not suffer from irregularity or illegality warranting interference.
22. Coming to Ex.B5-Will is proved in the manner known to
law or not. Admittedly, Ex.B5-Will is executed by Alagarsamy in respect
of ‘A’ Schedule property whereby he has cancelled his earlier Will dated
12.09.1996 (Ex.B4) wherein the property has been given that A Schedule
property to C Schedule property was arrayed and allotted to the various
defendants and plaintiff. As stated supra whether the said Alagarsamy has
right or title to execute the Will? In other words, competency to execute
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the Will as to the title is lacking for the reasons stated supra and no
person in connection with the Will as contemplated under Section 63 of
the Evidence Act and Sections 68 and 69 of the Indian Succession Act
was not examined before the trial Court and hence, the trial Court has
rightly come to the conclusion that the Ex.B5-Will was not proved in the
manner known to law.
23. Learned counsel for the appellant/defendant draw our
attention to the endorsement on the reverse of the first page of the
document by the Sub Registrar which is to the effect that Alagarsamy
Naidu has handed over Rs.1000/- in his presence to the seller of the
property. Based upon such endorsement made by the Sub Registrar as to
handing over of consideration, learned counsel for the appellant would
contend that the amount is paid by the husband on behalf of the wife. De
horse the above decision as to the plea of benami and who can take the
plea on benami in the place of his father on factual matrix of the case, we
find that there is a specific covenant in the said sale deed that the amount
is paid by the mother Pappathi Ammal to the seller at the Sub Registrar
Office. The said amount was handed over by Alagarsamy Naidu to the
seller. Since sale deed is of the year 1960, in those days, ladies will
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A.S.(MD)No.150 of 2015
always take back-seat in the matter of official transaction viz. before the
the officer in the Sub Registrar and the same cannot be brush aside
slightly.
24(a) Besides the Clause as a covenant in the document
shall take precedents over the endorsement made by the officials. Further
more, handing over amount alone has been recorded and the same cannot
loom large to state that Alagarsamy Naidu alone has paid the sale
consideration from and out of his packet and hence, we find that the said
contention cannot be countenanced.
24(b) Though our attention was drawn to Ex.B1 settlement
deed wherein the father has stated as recital therein that he alone has paid
the amount after death of his wife namely Pappathi Ammal. Based upon
such a self-serving statement of the father, the plea of benami after death
of the person namely the title holder cannot be raised under the
document. Hence, we have no hesitation to come to the conclusion that
the recital in Exs.B1, B4 & B5 are only self-serving statement said to
have been made by the father to save his skin.
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25(a) Learned counsel for the appellant/defendant would
further contend that during the cross examination of PW1, the plaintiff,
he has admitted the execution of the Will in Ex.B4 and the same is
sufficient to treat the Will as proved. On perusal of the same, we find
that the very same PW1, in his further part of the cross-examination has
stated that he is disputing the Will in clear terms and moreover, once the
Will in lis is disputed, a party who relies upon the Will and the
propounder of the Will has to prove the same in accordance with the
provisions of Section 63 of the Evidence Act and Section 68 of the
Indian Succession Act.
25(b) More so, in the event of death of any of the attestor or
attestor being not traceable, then a separate procedure is contemplated
under Sections 69 of the Indian Succession Act. In the instant case, no
such plea like absence of the attestor or death of the attestor was raised in
the written statement nor pleaded by the DW1 assumes significance and
hence, we find that no such plea, touching upon the absence of the
attestor or death of the attestor either be raised in the pleadings or in his
evidence.
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25(c) In the above circumstances, the trial Court has rightly
come to the conclusion that Ex.B4-Will is not proved in the manner
known to law. Besides, as discussed supra, Alagarsamy Naidu (father)
has no title to execute the Will, in view of the legal position stated in the
preceding paragraphs. When the testator of Ex.B4-Will has no title to
convey the property under the document, merely because there is a
document, the same cannot be taken as a proof in the manner known to
law. A document authored by a person who has no legal competency to
execute the Will cannot convey any right or title to the beneficiary sated
under the Will.
25(d) As per Ex.A1 and A2, ‘A’ and ‘B’ Schedule property
was purchased in the name of Pappathi Ammal and the position is clear.
The plea of benami was not raised by the father namely the husband of
Pappathi Ammal. Only after the death of the father namely Alagarsamy
Naidu, the case has been file. In the written statement, plea of benami
was taken only by the son and daughter of the said Alagarsamy Naidu.
Whether the sons and daughters can raise the plea of benami by pleading
that the property was that of the father and the mother is only a
benamidhar is no longer res intergra. Hence, as per the decision of the
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Hon’ble Supreme Court in Valliammal (D) by L.Rs. v. Subramaniam
and others, reported in 2004 (5) CTC 60 (SC) : 2004 (7) SCC 233, the
plea of benami can be taken by the father or husband, as the case may be
and not by the son of that person. In the instant case, the defendants have
no locus standi to raise such a plea of benami and hence, this Court is of
the considered view that viewing from any angle, Alagarsamy has no title
to convey under Exs.B1, B4 or B5 besides Exs.B1, B4 and B5 are not
proved in the manner known to law. Accordingly, the trial Court has
rightly rejected the case of the defendants and decreed the suit for
partition and hence, we find no valid reason to interfere with the
considered view of the judgment rendered by the trial Court.
26. Accordingly, this appeal suit is dismissed. No Costs.
Consequently, connected miscellaneous petition is closed.
[T.K.R.,J.] [N.S., J.]
24.02.2025
Internet : Yes/No
Index : Yes/No
NCC : Yes/No
PJL
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A.S.(MD)No.150 of 2015
RMT.TEEKAA RAMAN, J.
AND
N.SENTHIL KUMAR, J.
PJL
To
1. The V Additional District Judge,
Madurai.
2.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
A.S.(MD)No.150 of 2015
and
M.P(MD)No.1 of 2015
24.02.2025
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