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HIGH COURT OF JUDICATURE AT MADRAS
R. MAHADEVAN, J.
Angamuthammal
Versus
Govindaraj
S.A. No. 975 of 2006
Decided on : 08-01-2015
Benami Transactions Act - Section 4 - Permanent injunction - Decree of divorce - Possession of property - Appellant is first defendant in suit whereas respondent is plaintiff - For easy reference and for sake of convenience appellant may hereinafter be referred to as first defendant and respondent be referred to as plaintiff wherever context so require - Plaintiff had married first defendant and they had two children - Plaintiff had purchased property measuring south- north and east-west from one for a sum by borrowing money outside and out of his savings - At time of registration since first defendant was pregnant and she has urged plaintiff to register a part of property in her name he had registered property measuring east - west and south - north in her name under document and remaining portion was registered in his name on same day under document - From date of purchase both properties have been in possession and enjoyment of plaintiff as part of his residence whereas first defendant was not in possession of property stands in her name in any manner – Held, It is not case of plaintiff that property was purchased in name of first defendant only to evade public revenue - It is also not intention of plaintiff to avoid payment of any tax or to conceal any unaccounted income by purchasing property in name of first defendant - Though question whether a particular purchase or not is largely one of fact and for determining this question no absolute formulae or acid test uniformly applicable in all situations can be laid down yet in weighing probabilities and for gathering relevant indicia Courts are usually guided - Even if above principles are applied to case on hand it cannot be held that transaction is a transaction - It is held that after introduction of Transactions Act, 1988 even though husband can purchase properties in name of his wife or unmarried daughter there is a presumption that it is for benefit of wife or unmarried daughter unless contrary is proved - In case on hand as laid down - This Court finds that since suit property measuring feet purchased in name of first defendant only for benefit of first defendant as plaintiff has not proved contrary - In light of above discussions and on analysis of judgments of courts below this Court finds that courts below did not consider both oral and documentary evidence adduced and produced on either side in a proper perspective and did not apply correct legal principles laid down by Apex Court as well as this Court and therefore they came to a wrong conclusion by decreeing suit as prayed for – Appeal allowed
1. The judgment and decree, dated 19.1.2006 made in A.S.No.21 of 2005 on the file of the learned Sub Judge, Dharmapuri, confirming the judgment and decree, dated 8.12.2004 made in O.S.No.783 of 1993 on the file of the learned District Munsif, Dharmapuri, are under challenge in this memorandum of second appeal.
2. The appellant is the first defendant in the suit in O.S.No.783 of 1993, whereas the respondent is the plaintiff.
3. For easy reference and for the sake of convenience, the appellant may hereinafter be referred to as the first defendant and the respondent be referred to as the plaintiff wherever the context so require.
4. The brief facts of the case of the plaintiff are as under:-
a. The plaintiff had married the first defendant in the year 1977 and they had two children, viz., Mohan Harirajan aged about 16 years and Mahalakshmi, aged about 10 years.
b. The plaintiff had purchased the property measuring south- north 40 feet and east-west 60 feet from one Manickam for a sum of Rs.12,600/- by borrowing money outside and out of his savings.
c. At the time of registration, since the first defendant was pregnant and she has urged the plaintiff to register a part of the property in her name, he had registered the property measuring east - west 60 feet and south - north 10 feet in her name on 27.4.1983 under document No.192/83 and the remaining portion was registered in his name, i.e., 60 x 30 feet on the same day under document No.191/83.
d. From the date of purchase, both the properties have been in possession and enjoyment of the plaintiff as part of his residence, whereas the first defendant was not in possession of the property stands in her name in any manner.
e. While so, due to the misunderstanding between the plaintiff and the first defendant, the plaintiff had obtained a decree of divorce on 19.3.1990 from the District Court, Krishnagiri.
f. Since the defendants are attempting to encroach the suit property, the plaintiff has filed the suit for declaration and permanent injunction.
5. The first defendant has resisted the suit by filing her written statement contending that she had made arrangements to purchase the property by obtaining the money from her parents and jewel loan and at that time, as she was in the advanced stage of pregnancy, she was admitted into the hospital and therefore, she instructed the plaintiff to register the property, but the plaintiff clandestinely registered the property measuring 60 x 30 feet in his name and the remaining portion measuring 60 x 10 feet in her name. While so, due to the misunderstanding between the plaintiff and the first defendant, there was a breakdown in her marriage. The plaintiff does not have any right over the suit property and he was not in possession and enjoyment of the suit property and since the suit has been filed without any cause of action, it is liable to be dismissed. Further, the plaintiff is bound to pay Rs.2,000/- to the first defendant towards her expenses.
6. Based on the material proposition of facts arising from the pleadings of the parties to the suit, the trial Court has formulated as nearly as five issues for the better adjudication of the suit.
7. In order to substantiate their respective cases, both the plaintiff and the defendant were directed to face the trial. Accordingly, the plaintiff was examined as P.W.1 and three other witnesses were examined on his part. During the course of their examination, Exs.A1 to A9 were marked. On the other hand, the defendant was examined as D.W.1 and during the course of her examination, Exs.B1 to B5 were marked. That apart, the Commissioner's Report and Sketch were marked as Exs.C1 and C2.
8. On evaluating the evidences, both oral and documentary, the trial court had decreed the suit as prayed for.
9. Having been aggrieved by the impugned judgment and decree of the trial Court, dated 8.12.2004, the first defendant had preferred an appeal in A.S.No.21 of 2005 on the file of the learned Subordinate Judge, Dharmap
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