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2015 Supreme(Mad) 1365

HIGH COURT OF JUDICATURE AT MADRAS
P.R. SHIVAKUMAR, J.
Shanthi @ Shanthi Sathya – Appellant
Versus
M. Masanam – Respondent
S.A. No. 1260 of 2006 & M.P. No. 2 of 2006
Decided On : 17-03-2015

Advocates appeared:
For the Appellant:M. Ravi, Advocate.
For the Respondent:P. Jeyaprakasam, Advocate.

Headnote:

Hindu Marriage Act, 1955 - Section 30(1)(i) - Benami Transaction Act, 1988 - Section 4 – Divorce - Recovery of possession of suit property - Permanent injunction - Original suit came to be filed by respondent herein initially against appellants 1 and 2 herein and above said arraying them as defendants 1 and 2 and defendant No.3 respectively - It is an admitted fact that first appellant of respondent herein plaintiff and their marriage took place at Village who figured as third defendant in original suit is father first appellant herein first defendant - They had a son - He was born Due to problem between husband and wife respondent herein plaintiff filed a petition for divorce in Family Court under Section 30(1)(i) of Hindu Marriage Act, 1955 alleging adultery as ground for divorce - Petition was not contested and it resulted in a decree granting divorce in favor of respondent herein plaintiff as he had prayed for in said O.P - Said decree came to be passed - Suit property namely a house site bearing Plot Village comprised in feet situated within Registration District of North Madras and Sub-Registration District of came to be purchased and registered as document in office of Sub-Registrar - Original sale deed has been produced by appellants as Ex.B1 whereas a certified copy of same has been produced by respondent herein/plaintiff as Ex.A2 before trial Court – Held, In case on hand there is no pleading and no evidence to show that purchase made under Ex.B1 was not for benefit of first appellant first defendant and on other hand it was for benefit of respondent plaintiff - On other hand there is a clear and categorical admission made by respondent plaintiff both in his pleadings and evidence that purchase was made for benefit of his wife and also his son in name of his wife namely first appellant first defendant - Judgment of Supreme Court referred above makes it clear that a person who comes with such an admission cannot succeed in his suit or defense against person in whose name purchase was made - Courts below have committed an error in holding that respondent herein plaintiff was entitled to succeed in suit filed by him on basis of his contention that suit property had been purchased by him with his own funds in name of his wife for her benefit and that still he was entitled to declaration of his title in respect of suit property as well as for recovery of possession of same from appellants surviving defendants - Third substantial question of law accordingly decided in favor of appellants surviving defendants holding that first appellant first defendant shall be entitled to suit property purchased in her name - In view of foregoing discussions especially answer given to third substantial question of law appellants are bound to succeed in second appeal and decree passed by lower appellate court confirming decree passed by trial court is liable to be set aside with result that suit itself is liable to be dismissed - However taking into consideration facts and circumstances of case this court is of view that parties shall be directed to bear their respective cost in all three courts - Appeal is allowed

Judgment :-

1. The defendants 1, 2 and 4 in the original suit are the appellants in the second appeal. The sole plaintiff in the original suit is the respondent in the second appeal. The suit O.S.No.8475 of1995 was filed by Masanam, the respondent herein against the appellants herein and one N.Chinniah. The said Chinniah figured as third defendant in the said suit.

2. The original suit came to be filed by the respondent herein initially against the appellants 1 and 2 herein and the above said Chinniah arraying them as defendants 1 and 2 and defendant No.3 respectively. It is an admitted fact that the first appellant Shanthi @ Shanthi Sathya is the wife of Masanam, the respondent herein/plaintiff and their marriage took place on 01.02.1979 at Ayakudi Village, Palani Taluk, Dindigul District. N.Chinniah, who figured as the third defendant in the original suit is the father of Shanthi @ Shanthi Sathya, the first appellant herein/first defendant. They had a son by name Sridhar. He was born on 22.11.1979 . Due to the problem between the husband and wife, Masanam, the respondent herein/plaintiff filed a petition for divorce in the Family Court, Chennai as O.P.No1017 of 1992 under Section 30(1)(i) of the Hindu Marriage Act, 1955 alleging adultery as the ground for divorce. The petition was not contested and it resulted in a decree granting divorce in favour of Masanam, the respondent herein/plaintiff as he had prayed for in the said O.P. The said decree came to be passed on 01.02.1995. The suit property, namely a house site bearing Plot No.57, Konnur Village comprised in R.s.No.183 measuring 40 feet x 60 feet situated within the Registration District of North Madras and Sub-Registration District of Ambattur (presently Purasawalkam) came to be purchased on 30.12.1985 and registered as document No.888/1986 in the office of the Sub-Registrar, Ambattur. The original sale deed has been produced by the appellants as Ex.B1, whereas a certified copy of the same has been produced by the respondent herein/plaintiff as Ex.A2 before the trial Court. Contending that though the purchase was made in the name of the first appellant herein/first defendant, he was the actual purchaser who paid the sale consideration and that he alone was the owner of the property, Masanam, the respondent herein filed the above said suit O.S.No.8475/1995 for a declaration that he was the absolute owner of the property, for recovery of possession of the suit property from the defendants in the suit, for setting aside the sale transaction dated 19.01.1994 between the first appellant/first defendant on the one hand and the second and third appellants/second and fourth defendants on the other hand in respect of the plaint schedule property holding such sale to be null and void, for a permanent injunction restraining the second and fourth defendants from putting up any further construction or making improvements in the plaint schedule property and also for costs. Initially, the suit was filed against first and second appellants herein and Chinniah, arraying them as defendants 1, 2 and 3 respectively and the prayer regarding sale deed dated 19.01.1994 by setting aside the same as null and void came to be made on the assumption that the second appellant/Dharmalingam alone was the purchaser under the said sale transaction. However, during the pendency of the suit, the plaint was amended to the effect that the conveyance made under the sale deed dated 19.01.1994 by the first appellant was in favour of the second appellant as well as the third appellant ( Dhanasingh) and the said Dhanasingh was impleaded as a defendant in the suit and ranked as fourth defendant. The above said reliefs were claimed by the respondent/plaintiff on the basis of the plaint averments that it was he who purchased the property with his own funds in the name of his wife out of pure love and affection towards her and with the intention of providing a security for his wife and minor son and that hence the pr










































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