2019 Supreme(Mad) 1337

IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SUBBIAH, KRISHNAN RAMASAMY, JJ.
Kona Varonica Swarnamukhi – Appellant
Versus
Devika Rani – Respondent
Original Side Appeal No. 209 of 2008
Decided On : 04-06-2019

Headnote:

Criminal Procedure Code,1973 - Section 145 - Original Side Rules - Order XXXVI - Rule 1 - Benami Transactions (Prohibition) Act, 1988 - Specific Relief Act – Sections 4(3)(b),6,6(2), Limitation Act, 1963 - Articles 64 and 65 - suit for partition - Suit for Possession – Sale deed - Suit contending that her father was a dance master and he died - According to plaintiff under able guidance of her father she learnt Classical and specialised in Karnas and she was only unique Dancer of that class - Plaintiff became so popular in field of dance that she was adopted by Government of Tamil Nadu as "State Dancer" and she was also conferred with title "Kalaimamani" recognising her contribution to field of art - Plaintiff has performed innumerable dance programmes ever since 1960 not only in Tamil Nadu but also throughout India and 52 countries out of India until March 1991 when she got married and thereafter stopped performing dance programmes - According to plaintiff during period when she was performing dance programmes both in India and abroad she was getting decent professional income - At that time defendant who is her younger sister was unemployed and she had no independent source of income - Therefore plaintiff appointed defendant as her agent to manage her private and financial affairs - Plaintiff practically gave all her income to defendant to run family and to save money she earned by investing same in properties - Plaintiff reposed absolute faith trust and confidence in defendant especially when defendant was her younger sister - Confidence which plaintiff reposed in defendant was fortified by fact that between 1977 and 1991 defendant associated herself in dance programmes by playing and assisted plaintiff as a in troupe - It is specific contention of plaintiff that during relevant period defendant was in total control of financial affairs of plaintiff not only to take care of family but also attending to property affairs dance programmes etc. - Defendant during June 1981 negotiated to purchase property described in item of plaint namely High Road Raja Chennai - and purchased same by a registered Sale deed from one Mrs. - However for reasons best known to defendant property described in item of plaint was purchased in name of plaintiff defendant and their mother - This property was purchased by defendant with funds provided by plaintiff to tune and by availing as loan with Egmore Benefit Society and loan availed by plaintiff was later discharged with her own savings - Similarly in the year 1984 out of amount earned by plaintiff defendant purchased property described in item of plaint namely Street Madras by a sale deed - Property described in item of properties was purchased in name of defendant and her mother namely – Subsequently from and out of earnings of plaintiff defendant purchased property described in item of plaint namely Flat bearing Door Apartments Luz Church Road Mylapore Chennai in name of defendant herself - Whether plaintiff has got title to plaint schedule item No. Whether plaintiff is entitled for delivery of possession? Whether plaintiff is also entitled for mesne profits both past and future? Whether settlement deeds said to have been executed by mother of parties in favour of plaintiff in respect of Schedule items 1 and 2 are true and valid and whether they were acted upon? Whether plaintiff has appointed defendant as her agent to manage her financial affairs? Whether suit is in time? And To what relief the plaintiff is entitled to? - Did plaintiff entrust all her earnings with defendant with a direction to use same for maintenance of family for savings and for acquiring properties? and Did defendant act in violation/breach of entrustment as above made by plaintiff? - Whether plaintiff had established that Exs. P9, P11 and P12 were taken "benami" in name of defendant and her mother and that plaintiff is real owner of properties described in item of plaint schedule ?Whether defendant trespassed into item of plaint described property and if so whether plaintiff is entitled to recover same ? Whether plaintiff is entitled for a declaration in respect of properties described in item Nos. of plaint schedule? And Whether suit filed by plaintiff is in time – Held, It is well settled that burden of proving that a particular sale is benami and apparent purchaser is not real owner always rests on person asserting it to be so - This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove fact of benami or establish circumstance unerringly and reasonably raising an inference of that fact - Essence of a benami is the intention of party or parties concerned and not uno ften such intention is shrouded in a thick veil which cannot be easily pierced through - But such difficulties do not relieve person asserting transaction to be a benami of any part of serious onus that rests on him nor justify acceptance of mere conjectures or surmises as a substitute for proof - Reason is that a deed is a solemn document prepared and executed after considerable deliberation and person expressly shown as purchaser or transferee in deed starts with initial presumption in his favour that apparent state of affairs is real state of affairs - Though question whether a particular sale is benami 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 yet in weighing probabilities and for gathering relevant indicia Courts are usually guided by these circumstances Source from which the purchase money came - Nature and possession of property after purchase - Motive if any for giving transaction a benami colour - Position of parties and relationship if any between claimant and alleged benamidar - Custody of title deeds after sale and Conduct of parties concerned in dealing with property - above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless viz source whence purchase money came is by far most important test for determining whether sale standing in name of one person is in reality for benefit of another - In determining whether a relationship is based on trust or confidence relevant to determining whether they stand in a fiduciary capacity Court shall have to take into consideration factual context in which question arises for it is only in factual backdrop that existence or otherwise of a fiduciary relationship can be deduced in a given case - Having said that let us turn to facts of present case once more to determine whether appellant stood in a fiduciary capacity vis-a-vis respondent-plaintiff - It is further case of plaintiff that for purpose of Tax compliance plaintiff had chosen to purchase property described as item in plaint in her name along with names of defendant and their mother – Similarly for same purpose property described as item in plaint was purchased in name of defendant and their mother - In case of property described as item in plaint it was purchased by defendant in her own name however he funds for purchasing property had been provided by none other than plaintiff - Further either defendant or her mother did not contribute any amount for purchasing plaint described properties in item - In other words, according to plaintiff defendant was not resourceful enough and has no independent source of income to purchase the properties described in plaint or to contribute any amount for purchase of properties - Plaintiff was only earning member and defendant received a meagre salary from her for having acted as her agent - Thus according to plaintiff transaction relating to purchase of properties described as item in plaint, is a "benami transaction" - Appeal allowed