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Wednesday, October 30, 2019

Benami Tansaction - liable for partition - burden lies on whom (1)the burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction; (2) it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary; ( 3) the true character of the transaction is governed by the intention of the person who has contributed the purchase money and (4) the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motives governing their action in bringing about the transaction and their subsequent conduct, etc. ”The ancestral property was sold by the Narayanasamy Mudaliar (Exh. A3) was on dated 11.11.1951. However, the Sale Deeds at Exh. B3, B4, B5, B6 and B7 which are in favour of defendant no.1 were much prior to the sale of the property at Exh. A3. Therefore, also it cannot be said that the suit properties were purchased in the name of defendant no.1 by Narayanasamy Mudaliar from the funds received by selling of the ancestral properties. Even considering the observations made by this Court in paragraph 10 in the case of Om Prakash Sharma (Supra) it can be said that Narayanasamy Mudaliar might have purchased the properties in the name of defendant no.1 in order to provide his wife with a secured life in the event of his death. It is required to be noted that it was the specific case on behalf of the defendant no.1 that the suit properties were purchased by her from the Stridhana and on selling of the jewellery. It is required to be noted that the benami transaction came to be amended in the year 2016. As per Section 3 of the Benami Transaction (Prohibition) Act 1988, there was a presumption that the transaction made in the name of the wife and children is for their benefit. By Benami Amendment Act, 2016, Section 3 (2) of the Benami Transaction Act, 1988 the statutory presumption, which was rebuttable, has been omitted. It is the case on behalf of the respondents that therefore in view of omission of Section 3(2) of the Benami Transaction Act, the plea of statutory transaction that the purchase made in the name of wife or children is for their benefit would not be available in the present case. Aforesaid cannot be accepted. As held by this Court in the case of Binapani Paul (Supra) the Benami Transaction (Prohibition) Act would not be applicable retrospectively. Even otherwise and as observed hereinabove, theplaintiff has miserably failed to discharge his onus to prove that the Sale Deeds executed in favour of defendant no.1 were benami transactions and the same properties were purchased in the name of defendant no.1 by Narayanasamy Mudaliar from the amount received by him from the sale of other ancestral properties. Once it is held that the Sale Deeds in favour of defendant no.1 were not benami transactions, in that case, suit properties, except property nos. 1 and 3, which were purchased in her name and the same can be said to be her self­acquired properties and therefore cannot be said to be Joint Family Properties, the plaintiffs cannot be said to have any share in the suit properties (except property nos. 1 and 3).

Benami Tansaction - liable for partition - burden lies on whom 
(1)the   burden   of   showing   that   a   transfer   is   a benami   transaction   lies   on   the   person   who asserts that  it  is  such a  transaction; 
(2) it  is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person
who supplied the purchase money, unless there is evidence to the contrary; (
3) the true character of the transaction is governed by the intention of
the   person   who   has  contributed  the   purchase money   and   
(4)   the   question   as   to   what   his intention was has to be decided on the basis of
the surrounding circumstances, the relationship of the parties, the motives governing their action
in   bringing   about   the   transaction   and   their subsequent conduct, etc.

The ancestral property was sold by the Narayanasamy Mudaliar (Exh. A3) was on dated 11.11.1951. However, the Sale Deeds at Exh. B3, B4, B5, B6 and B7 which are in favour of defendant no.1 were much prior to the sale of the property at Exh. A3. Therefore, also it cannot be said that the suit properties were purchased in the name of defendant no.1   by   Narayanasamy   Mudaliar   from   the   funds   received   by selling of the ancestral properties. 
Even considering the observations made by this Court in paragraph 10 in the case of Om Prakash Sharma (Supra) it can be said that Narayanasamy Mudaliar might have purchased the properties in the name of defendant no.1 in order to provide his wife with a secured life in the event of his death.
 It is required to   be   noted   that   it   was   the   specific   case   on   behalf   of   the defendant no.1 that the suit properties were purchased by her from the Stridhana and on selling of the jewellery.
It is required to be noted that the benami transaction came to be amended in the year 2016. As per Section 3 of the Benami   Transaction   (Prohibition)   Act   1988,   there   was   a presumption that the transaction made in the name of the wife and children is for their benefit. By Benami Amendment Act, 2016, Section 3 (2) of the Benami Transaction Act, 1988 the statutory presumption, which was rebuttable, has been omitted.
It is the case on behalf of the respondents that therefore in view of omission of Section 3(2) of the Benami Transaction Act, the plea of statutory transaction that the purchase made in the name
of wife or children is for their benefit would not be available in the present case. Aforesaid cannot be accepted. 
As held by this Court   in   the   case   of  Binapani   Paul  (Supra)   the   Benami Transaction  (Prohibition)   Act   would   not   be   applicable retrospectively. Even otherwise and as observed hereinabove, theplaintiff has miserably failed to discharge his onus to prove that
the Sale Deeds executed in favour of defendant no.1 were benami transactions   and   the   same   properties   were   purchased   in   the name of defendant no.1 by Narayanasamy Mudaliar from the
amount   received   by   him   from   the   sale   of   other   ancestral properties. 
Once   it   is   held   that   the   Sale   Deeds   in   favour   of defendant no.1 were not benami transactions, in that case, suit properties, except property nos. 1 and 3, which were purchased
in her name and the same can be said to be her self­acquired properties   and   therefore  cannot  be   said   to   be   Joint   Family Properties, the plaintiffs cannot be said to have any share in the
suit properties (except property nos. 1 and 3).

CORRECTED
     Reportable
        IN THE SUPREME COURT OF INDIA
            CIVIL APPELLATE JURISDICTION
  CIVIL APPEAL NO.  4805 OF 2019
      (ARISING OUT OF SLP (C) NO.29642 OF 2016)
Mangathai Ammal (Died) through
LRs and Others                       ..Appellant(s)
             Versus
Rajeswari & Others                                              ..Respondent(s)
J U D G M E N T
M.R. SHAH, J.
1. Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned
Judgment and Order passed by the High Court of Judicature at
Madras   dated   05.01.2016   passed   in   AS   No.785   of   1992
dismissing the same and affirming the Judgment and Decree
dated 05.08.1992 passed by the learned Subordinate Judge, Arni
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in O.S. No.124 of 1990 decreeing the suit for partition by original
plaintiff, the original defendant nos. 1 to 3 have preferred the
present appeal.
3. The facts leading to the present appeal in nutshell are
as under :
That,   one   Rajeswari   and   Others­original   plaintiffs
instituted a suit bearing O.S.  No.124 of 1990 for partition of the
suit properties and separate possession. It was the case on behalf
of   the   plaintiffs   that   the   first   defendant   is   the   wife   of   one
Narayanasamy Mudaliar. That, the said Narayanasamy Mudaliar
and original defendant no.1 had one son and three daughters
namely Elumalai (son), Ranganayaki (daughter), Nagabushanam
(daughter) and Navaneetham (daughter). That, the son Elumalai
and daughter Ranganayaki had died. The first plaintiff is the wife
of Elumalai, the second plaintiff and plaintiff nos. 3 to 8 are the
husband   and   children   of   the   deceased   Ranganayaki.   That,
Elumalai and the first plaintiff did not have issue. According to
the original plaintiffs, Narayanasamy Mudaliar sold the ancestral
properties and purchased the suit property in the name of first
defendant ­ Mangathai Ammal (wife of Narayanasamy Mudaliar).
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Therefore,   it   was   the   case   on   behalf   of   the   plaintiffs   that
Narayanasamy Mudaliar and his son Elumalai are entitled to half
share of the ancestral properties. That, it was the case on behalf
of the plaintiffs that the same Narayanasamy Mudaliar had died
twenty years back to the  filing of the  suit. His share in the
properties was inherited by Elumalai, defendant nos. 1 and 2 viz
Nagabushanam   Ammal   and   Ranganayaki   Ammal.   That,   the
Ranganayaki died about six years before filing of suit, therefore,
her legal representatives viz original plaintiff nos.2 to 8 inherited
her share in the properties. That, the Nagabushanam executed
the   Release   Deed   dated   24.04.1990   in   favour   of   the   first
defendant. According to the plaintiffs, the first plaintiff is entitled
to 5/8th share, plaintiff nos. 2 to 8 are entitled to 1/8th share
and   the   defendants   are   entitled   to   1/4th   share   in   the   suit
properties. According to the plaintiffs, since the defendant tried
to claim the suit properties, the plaintiffs filed the present suit for
partition.
3.1 The suit was resisted by the defendants. As per the
case of the first defendant, except item nos. 1 and 3 of the suit
properties, the other properties are self­acquired properties of the
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first defendant. According to the first defendant, the first item of
the suit property was purchased out of the money provided by
her   in   her   name.   According   to   the   first   defendant,   the   suit
properties   are   not   the   ancestral   properties   of   Narayanasamy
Mudaliar. It was denied that the suit properties were purchased
by selling the ancestral properties. It was the case on behalf of
the defendant no.1 that except properties in item nos. 1 and 3 of
Schedule II, the properties were purchased by the defendant no.1
out of the stridhana she received from her parents’ house and by
selling   the   gold   jewellery.   It   was   also   the   case   on   behalf   of
defendant   no.1   that   after   purchasing   the   property   from
Thangavel Gounder and others; she constructed a house and is
in possession and enjoyment of the said property. According to
the defendant no.1, the deceased Narayanasamy Mudaliar was
entitled to 47 cents in Survey No. 218/1 and 8 cents in Survey
No. 218/3 and the deceased Ranganayaki Ammal is entitled to
1/5th share in the suit properties. It was also the case on behalf
of the first defendant  that, similarly, the first plaintiff’s husband
is also entitled to 1/5th share, in which, first defendant and first
plaintiff are entitled to half share in the suit properties. According
to   the   first   defendant,   the   first   defendant’s   daughter
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Nagabhushanam executed a Release Deed in respect of her own
share. It was also the case on behalf of the first defendant that
she never acted as a manager of the joint family. According to
her, she executed a Will dated 11.02.1987 in favour of plaintiff
nos. 1 and 2 and Nagabhushanam Ammal. However, since the
beneficiaries of the Will did not take care of the first defendant,
she revoked the Will on 11.06.1990.
3.2 Defendant   nos.   2   and   3   supported   defendant   no.1.
According to defendant nos. 2 and 3, defendant no.1 mortgaged
the property with defendant no. 3 for a valuable consideration,
which was also known to the plaintiffs. Defendant nos. 2 and 3
also adopted the written statement filed by defendant no.1.
3.3   That   the   learned   Trial   Court   framed   the   following
issues:
“1)   Whether   the   suit   schedule   properties   are
ancestral properties of husband of the 1st plaintiff
namely   Elumalai   and   the   deceased
Narayansamy?
2) Whether it is true that the 1st defendant had
managed the suit schedule properties being the
Manager of the Family?
3)   Whether   it   is   true   that   the   Suit   Schedule
properties are jointly enjoyed by all the family
members as Joint Family Property?
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4)   Whether   the   plaintiffs   are   entitled   to   claim
partition   in   view   of   the   Release   Deed   dated
24.04.90 executed by Nagabooshanam Ammal?
5) Whether it is true that the 1st defendant had
executed a Will on 11.2.87 to and in favour of
plaintiffs in respect of suit schedule property and
revoked the said Will on 11.6.90?
6) Whether it is true that the plaintiffs are in
joint possession of the suit schedule properties?
7) Whether the plaintiffs are entitled to get 3/4th
share over the suit schedule properties?
8)   Whether   the   present   suit   is   not   valued
properly?
9) To what relief the plaintiffs are entitled?
3.4   Before the Trial Court, on the side of the plaintiffs,
four witnesses were examined and three documents Exh. A1 to
A3 were marked. On the side of the defendants, two witnesses
were examined and 19 documents Exh. B1 to B19 were marked.
That, the learned Trial Court, after taking into consideration the
oral   and   documentary   evidences   of   both   the   sides,   passed   a
preliminary decree finding that the plaintiffs are entitled to 3/4th
share in the suit properties. Feeling aggrieved and dissatisfied
with the Judgment and Decree passed by the Trial Court, the
original defendant nos. 1 to 3 preferred appeal before the High
Court. That, by impugned Judgment and Order, the High Court
has dismissed the said appeal and has confirmed the Judgment
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and Decree passed by the Trial Court. Feeling aggrieved and
dissatisfied with the impugned Judgment and Order passed by
the   High   Court   dismissing   the   appeal   and   confirming   the
Judgment and Decree passed by the learned Trial Court, original
defendant nos.1 to 3 have preferred the present appeal.
4. Shri V. Prabhakar, learned Counsel has appeared on
behalf of the appellants­original defendants and Shri G. Balaji,
learned   Counsel   has   appeared   on   behalf   of   the   respondentsoriginal plaintiffs.
5. Shri   V.   Prabhakar,   learned   Counsel   appearing   on
behalf   of   the   original   defendant   nos.1   to   3   has   vehemently
submitted that in the facts and circumstances of the case, both,
the learned Trial Court as well as the High Court have committed
a grave error in decreeing the suit and holding that the original
plaintiffs have 3/4th share in the suit properties.
5.1 It is further submitted by Shri V. Prabhakar, learned
Counsel appearing on behalf of the appellants­original defendant
nos.1 to 3 that the suit properties were purchased by defendant
no.1 out of the stridhana she received from her parents and by
selling the gold jewellery. It is submitted that, admittedly, the suit
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properties were purchased in the name of original defendant no.1
and   was   in   possession   of   defendant   no.1.   It   is   submitted
therefore,   the   finding   that   the   properties   were   purchased   by
Narayanasamy Mudaliar is erroneous.
5.2 It is further submitted by Shri V. Prabhakar, learned
Counsel appearing on behalf of the appellants­original defendant
nos.1   to   3   that   if   it   was   the   case   on   behalf   of   the   original
plaintiffs that the properties purchased in the name of defendant
no.1 were the benami transactions, in that case, the onus is/was
upon the plaintiffs to prove by leading cogent evidence that the
transactions were benami transactions. It is submitted that in
the present case, the plaintiffs have failed to discharge the onus
to prove that the transactions were benami transactions. It is
submitted that, both, the Trial Court as well as the High Court
had erroneously shifted the burden upon the defendants to prove
that the transactions/Sale Deeds in favour of defendant no.1
were not benami transactions. It is submitted that the aforesaid
is contrary to the settled proposition of law laid down by this
Court.
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5.3 It is further submitted by Shri V. Prabhakar, learned
Counsel appearing on behalf of the appellants­original defendant
nos.1 to 3 that in the present case, solely on considering two
documents, namely, Exh. B3, Sale Deed in respect of one of the
properties   and   Exh.   B4,   the   Sale   Deed   with   respect   of   two
properties,   the   Courts   below   have   considered   the   entire   suit
properties as ancestral properties and/or the same properties
purchased   from   the   funds   raised   by   selling   the   ancestral
properties.
5.4 It is further submitted by Shri V. Prabhakar, learned
Counsel appearing on behalf of the appellants­original defendant
nos.1   to   3   that   merely   because   some   consideration   or   part
consideration was paid by the husband at the time of purchase of
property at Exh. B3­Sale Deed and/or merely purchasing the
stamp papers while purchasing the property at  Exh. B4­Sale
Deed, it cannot be said that the same properties as such were
purchased   from   the   funds   raised   by   selling   the   ancestral
properties and/or the same were purchased for and on behalf of
joint family.
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5.5 It is further submitted by Shri V. Prabhakar, learned
Counsel appearing on behalf of the appellants­original defendant
nos.1 to 3 that both the Courts below have materially erred in
misinterpreting the Release Deed at Exh. A1. It  is submitted that
both the Courts below have materially erred in holding the suit
properties as joint family properties of Narayanasamy Mudaliar
on the ground that execution of Release Deed at Exh. A1 by
Nagabhushanam on payment of Rs.10,000/­ to Nagabhushanam
and on such payment Nagabhushanam released her share in the
property, was good to hold that the properties are the joint family
properties of Narayanasamy Mudaliar.
5.6 It is further submitted by Shri V. Prabhakar, learned
Counsel appearing on behalf of the appellants­original defendant
nos.1 to 3 that even considering the documentary evidences on
record, more particularly, Exh. B3 to B7, it can be seen that the
suit properties were purchased in the name of defendant no.1
were purchased much prior to the sale of some of the ancestral
properties   of   Narayanasamy   Mudaliar.   It   is   submitted   that,
therefore,   the   case   on   behalf   of   the   plaintiffs   that   the   suit
properties were purchased in the name of defendant no.1 out of
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the   funds   raised   on   selling   the   ancestral   properties   of
Narayanasamy   Mudaliar,   cannot   be   accepted.   Relying   upon
paragraph 10 of the decision of this Court in the case of  Om
Prakash Sharma v. Rajendra Prasad Shewda, (2015) 15 SCC 556,
it is submitted by Shri V. Prabhakar, learned Counsel appearing
on behalf of the appellants that as the transactions/Sale Deeds
in favour of defendant no.1 were prior to the enactment of the
Hindu Succession Act and the amendments made thereto from
time   to   time,   even   it   can   be   said   that   the   intention   of   the
Narayanasamy Mudaliar to purchase the properties in the name
of defendant no.1­his wife was in order to provide the wife with a
secured life in the event of his death.
5.7 Shri   V.   Prabhakar,   learned   Counsel   appearing   on
behalf of the appellants­original defendant nos.1 to 3 submitted
that even otherwise, the plaintiffs have failed to prove by leading
cogent   evidence   that   the   transactions   of   sale   in   favour   of
defendant no.1 were benami transactions. It is submitted by Shri
V. Prabhakar that even in the plaint also there were no specific
pleadings  that  the   sale  transactions  of  the  suit  properties  in
favour   of   defendant   no.1   were   benami   transactions.   It   is
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submitted that even the learned Trial Court also did not frame
any   specific   issue   with   respect   to   benami   transactions.   It   is
submitted that even otherwise on merits also and on considering
the recent decision of this Court in the case of P. Leelavathi v. V.
Shankarnarayana   Rao  (2019)   6   SCALE   112,   in   which   after
considering the earlier decisions of this Court in the case of
Jaydayal Poddar v. Bibi Hazra (Mst.)  (1974) 1 SCC 3;  Thakur
Bhim Singh v. Thakur Kan Singh (1980) 3 SCC 72; Binapani Paul
v.   Pratima   Ghosh  (2007)   6   SCC   100   and  Valliammal   v.
Subramaniam (2004) 7 SCC 233, it cannot be said that the Sale
Deeds   executed   in   favour   of   defendant   no.1   were   benami
transactions.
5.8 Making   above   submissions   and   relying   upon   above
decisions it is prayed to allow the present appeal.
6. Present   appeal   is   vehemently   opposed   by   Shri   G.
Balaji, learned Counsel appearing on behalf of the respondentsoriginal plaintiffs.
6.1 Shri G. Balaji, learned Counsel appearing on behalf of
the respondents­original plaintiffs has vehemently submitted that
on appreciation of entire evidence on record, both, learned Trial
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Court   as   well   as   the   High   Court,   have   rightly   held   that   the
transactions of sale in favour of defendant no.1 were benami
transactions   as   the   said   properties   were   purchased   by
Narayanasamy Mudaliar in the name of defendant no.1 out of the
funds   received   from   selling   the   ancestral   properties.   It   is
submitted that on considering the documentary evidences Exh.
B3, B4 and even Exh. A1, the High Court has rightly observed
and held that the transactions/Sale Deeds in favour of defendant
no.1 were benami transactions and therefore the plaintiffs are
entitled   to   3/4th  share   in   the   suit   properties   which   were
purchased in the name of defendant no.1 but purchased out of
the   funds   received   from   selling   the   ancestral   properties   by
Narayanasamy Mudaliar.
6.2 It   is   further   submitted   by   Shri   G.   Balaji,   learned
Counsel appearing on behalf of the respondents­original plaintiffs
that   in   the   present   case,   all   the   conditions   to   prove   the
transactions as benami transactions as laid down by this Court
in the case of P. Leelavathi (Supra) have been satisfied.
6.3 It is vehemently submitted by Shri G. Balaji, learned
Counsel appearing on behalf of the respondents­original plaintiffs
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that in the present case, even from the intention and conduct of
the parties it is proved that though the properties were in the
name of defendant no.1, they were purchased and enjoyed as
Joint   Family   Properties.   It   is   submitted   that   otherwise   the
Nagabhushanam would not have released her share in favour of
defendant no.1, if the daughter Nagabhushanam had no share. It
is   submitted   that   execution   of   the   Release   Deed   by
Nagabhushanam   in   favour   of   defendant   no.1   suggests   that
defendant   no.1   also   considered   the   share   of   the   daughter
Nagabhushanam by treating the suit properties as Joint Family
Properties.
6.4 It   is   further   submitted   by   Shri   G.   Balaji,   learned
Counsel appearing on behalf of the respondents­original plaintiffs
that the Will dated 11.02.1987, executed by defendant no.1, also
included   even   the   properties   exclusively   belonging   to
Narayanasamy Mudaliar. It is submitted, therefore, the intention
can   be   gathered   from   Exh.   B8   and   Exh.   B9   that   the   suit
properties are Joint Family Properties and therefore liable for
partition and not exclusive properties of defendant no.1.
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6.5 It   is   further   submitted   by   Shri   G.   Balaji,   learned
Counsel appearing on behalf of the respondents­original plaintiffs
that the suit properties were purchased in the name of defendant
no.1   during   the   lifetime   of   Narayanasamy   Mudaliar.   It   is
submitted   that   original   defendant   no.1   had   no   independent
income.     It   is   submitted   that   Narayanasamy   Mudaliar   had
ancestral   properties/agricultural   lands   which   were   generating
income and he purchased all the properties in the name of his
wife­defendant   no.1   from   the   income   generated   from   the
ancestral   properties   and   by   selling   some   of   the   ancestral
properties.
6.6 It   is   further   submitted   by   Shri   G.   Balaji,   learned
Counsel appearing on behalf of the respondents­original plaintiffs
that even the statutory presumption which was rebuttable under
Section 3 (2) of the Benami Transaction Act, 1988 has been
omitted by Benami Amendment Act of 2016. It is submitted that
therefore as on date, there is no such statutory presumption that
the purchase made in the name of wife or children is for their
benefit.
15
6.7 Making   above   submissions   and   relying   upon   above
decisions it is prayed to dismiss the present appeal.
7. Heard the learned Counsel appearing on behalf of the
respective   parties   at   length.   We   have   gone   through   and
considered in detail the findings recorded by the learned Trial
Court as well as the High Court. We have also considered in
detail the evidences on record both oral as well as documentary.
7.1 At   the   outset,   it   is   required   to   be   noted   that   the
original   plaintiffs   instituted   the   suit   before   the   learned   Trial
Court for partition of the suit properties and claiming 3/4th share
with   the   pleadings   that   the   suit   properties   were   ancestral
properties and that the Narayanasamy Mudaliar has purchased
the suit properties in the name of his wife­defendant no.1 out of
the   funds   derived   through   selling   his   share   of   the   property
acquired through ancestral nucleus to some other person and
that   the   suit   properties   were   in   absolute   possession   and
enjoyment   of   the   Joint   Family   Property   since   the   date   of
purchase.   From   the   pleadings,   it   appears   that   it   was   not
specifically   pleaded   by   the   plaintiffs   that   the   Sale
Deeds/transactions   in   favour   of   defendant   no.1   were   benami
16
transactions. It was also not pleaded that the suit properties were
purchased   in   the   name   of   defendant   no.1   by   Narayanasamy
Mudaliar from the income derived out of the ancestral properties.
Even the learned Trial Court did not specifically frame the issue
that whether the transactions/Sale Deeds in favour of defendant
no.1 are benami transactions or not? Despite the above, learned
Trial   Court   and   the   High   Court   have   held   that   the
transactions/Sale Deeds in favour of defendant no.1 were benami
transactions. The aforesaid findings recorded by the Trial Court
confirmed   by   the   High   Court   and   the   consequent   relief   of
partition granted in favour of the plaintiffs is the subject matter
of the present appeal.
8. While considering the issue involved in the present
appeal   viz.   whether   the   transactions/Sale  Deeds   in   favour   of
defendant no.1 can be said to be benami transactions or not, the
law on the benami transactions is required to be considered and
few decisions of this Court on the aforesaid are required to be
referred to.
8.1 In the case of Jaydayal Poddar (Supra) it is specifically
observed and held by this Court that the burden of proving that a
17
particular sale is benami and the apparent purchaser is not the
real owner, always rests on the person asserting it to be sold. It is
further observed that this burden has to be strictly discharged by
adducing legal evidence of a definite character which would either
directly prove the fact of the benami transaction or establish
circumstances unerringly and reasonably raising an interference
of that fact. In paragraph 6 of the aforesaid decision, this Court
has observed and held as under :
“6. “It is well­settled that the burden of proving
that a particular sale is benami and the apparent
purchaser is not the real owner, always rests on
the 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   the   fact   of   benami   or
establish   circumstances   unerringly   and
reasonably raising an inference of that fact. The
essence of a benami is the intention of the party
or   parties   concerned;   and   not   unoften,   such
intention   is   shrouded   in   a   thick   veil   which
cannot   be   easily   pierced   through.   But   such
difficulties do not relieve the person asserting the
transaction   to   be   benami   of   any   part   of   the
serious onus that rests on him; nor justify the
acceptance of mere conjectures or surmises, as a
substitute for proof. The reason is that a deed is
a solemn document prepared and executed after
considerable   deliberation,   and   the   person
expressly shown as the purchaser or transferee
in the deed, starts with the initial presumption in
his favour that the apparent state of affairs is the
real state of affairs. Though the question whether
18
a particular sale is benami or not, is largely one
of   fact,   and   for   determining   this   question,   no
absolute   formulae   or   acid   tests,   uniformly
applicable in all situations, can be laid down; yet
in weighing the probabilities and for gathering
the   relevant   indicia,   the   courts   are   usually
guided   by   these   circumstances:(1)   the   source
from which the purchase money came; (2) the
nature and possession of the property, after the
purchase;   (3)   motive,   if   any,   for   giving   the
transaction a benami colour; (4) the position of
the parties and the relationship if any, between
the claimant and the alleged benamidar; (5) the
custody of the title deeds after the sale and (6)
the conduct of the parties concerned in dealing
with the property after the sale.
In the case of Thakur Bhim Singh (Supra) this Court in
paragraph 18 observed and held as under :
“18. The principle governing the determination of
the   question   whether   a   transfer   is   a   benami
transaction or not may be summed up thus: (1)
the   burden   of   showing   that   a   transfer   is   a
benami   transaction   lies   on   the   person   who
asserts that  it  is  such a  transaction; (2) it  is
proved that the purchase money came from a
person other than the person in whose favour the
property is transferred, the purchase is prima
facie assumed to be for the benefit of the person
who supplied the purchase money, unless there
is evidence to the contrary; (3) the true character
of the transaction is governed by the intention of
the   person   who   has  contributed  the   purchase
money   and   (4)   the   question   as   to   what   his
intention was has to be decided on the basis of
the surrounding circumstances, the relationship
of the parties, the motives governing their action
19
in   bringing   about   the   transaction   and   their
subsequent conduct, etc.”
8.2 In the case of P. Leelavathi (Supra) this Court held as
under :
“9.2 In  Binapani Paul  case (Supra), this Court
again had an occasion to consider the nature of
benami transactions.  After considering a catena
of decisions of this Court on the point, this Court
in   that   judgment   observed   and   held   that   the
source   of   money   had   never   been   the   sole
consideration. It is merely one of the relevant
considerations   but   not   determinative   in
character.  This Court ultimately concluded after
considering its earlier judgment in the case of
Valliammal v. Subramaniam (2004) 7 SCC 233
that   while   considering   whether   a   particular
transaction is benami in nature, the following six
circumstances can be taken as a guide:
“(1) the source from which the purchase money
came;
(2) the nature and possession of the property,
after the purchase;
(3) motive, if any, for giving the transaction a
benami colour;
(4)   the   position   of   the   parties   and   the
relationship, if any, between the claimant and
the alleged benamidar;
(5) the custody of the title deeds after the sale;
and 
20
(6)   the   conduct   of   the   parties   concerned   in
dealing   with   the   property   after   the   sale.
(Jaydayal Poddar v. Bibi Hazra (supra), SCC p. 7,
para6)”
8.3 After considering the aforesaid decision in the recent
decision of this Court in the case of  P. Leelavathi  (Supra), this
Court   has   again   reiterated   that   to   hold   that   a   particular
transaction is benami in nature the aforesaid six circumstances
can be taken as a guide.
8.4 Applying law laid down by this Court in the aforesaid
decisions to the facts of the case on hand and the reasoning
given by the Trial Court confirmed by the High Court, it appears
that both, the learned Trial Court and the High Court have erred
in shifting the burden on the defendants to prove that the sale
transactions were not benami transactions. As held hereinabove
in fact when the plaintiffs’ claim, though not specifically pleaded
in the plaint, that the Sale Deeds in respect of suit properties,
which   are   in   the   name   of   defendant   no.1,   were   benami
transactions,   the   plaintiffs   have   failed   to   prove,   by   adducing
cogent evidence, the intention of the Narayanasamy Mudaliar to
21
purchase the suit properties in the name of defendant no.1 – his
wife.
9. Even the reasoning and the findings recorded by the
Trial Court confirmed by the High Court while holding the Sale
Deeds/transactions   in   favour   of   defendant   no.1   as   benami
cannot be said to be germane and or fulfilling the circumstances
as carved out by this Court in the aforesaid decisions.
9.1 The first reason which is given by the learned Trial
Court while holding the suit properties as benami transactions is
that part sale consideration was paid by Narayanasamy Mudaliar
at the time of the purchase of the property vide Sale Deed Exh.
B3. As  held  by this   Court  in   catena  of  decisions  referred  to
hereinabove, the payment of part sale consideration cannot be
the sole criteria to hold the sale/transaction as benami. While
considering a particular transaction as benami, the intention of
the person who contributed the purchase money is determinative
of the nature of transaction. The intention of the person, who
contributed the purchase money, has to be decided on the basis
of the surrounding circumstances; the relationship of the parties;
the   motives   governing   their   action   in   bringing   about   the
22
transaction and their subsequent conduct etc. It is required to be
noted that Narayanasamy Mudaliar, who contributed part sale
consideration by purchasing property at Exh. B3, might have
contributed   being   the   husband   and   therefore   by   mere
contributing the part sale consideration, it cannot be inferred
that Sale Deed in favour of the defendant no.1­wife was benami
transaction and for and at behalf of the joint family. Therefore,
the Trial Court as well as the High Court have committed a grave
error   in   holding   the   suit   properties   as   benami
transactions/ancestral properties on the basis of the document
at Exh. B3.
9.2 Similarly, merely because of the stamp duty at the
time of the execution of the Sale Deed at Exh. B4 was purchased
by Narayanasamy Mudaliar, by that itself it cannot be said that
the Sale Deed at Exh. B4 in favour of defendant no.1 was benami
transaction. It is required to be noted that except the aforesaid
two   documentary   evidences   at   Exh.   B3   and   B4,   no   other
documentary   evidence/transaction/Sale   Deed   in   favour   of
defendant no.1 have been considered by the learned Trial Court
and even by the High Court.
23
9.3 Now, so far as the findings recorded by the Trial Court
and the High Court on considering the Release Deed at Exh. A1
viz. the Release Deed executed by Nagabushanam in favour of
defendant   no.   1   on   payment   of   Rs.10,000/­   and   therefore
inference drawn by the learned Trial Court and the High Court
that therefore even the defendant no.1 also considered the share
of the daughter and considered the suit properties as joint family
properties and therefore plaintiffs have also share in the suit
properties is concerned, the said finding is just a mis­reading and
mis­interpretation of the evidence on record. In her deposition,
defendant  no.1  has  explained  the  payment  of  Rs.10,000/­  to
Nagabushanam, daughter and the Release Deed executed by her.
It is specifically stated by her that though she had no share in
the suit properties, with a view to avoid any further litigation in
future and  to  be on  safer  side, Rs.10,000/­ is paid  and the
Release Deed was got executed by Nagabushanam in favour of
defendant no.1. Even in the Release Deed at Exh. A1, it is so
specifically stated. Therefore, merely because to avoid any further
litigation in future and though Nagabushanam had no share in
the suit properties, Rs.10,000/­ was paid and the Release Deed
was got executed in favour of defendant no.1, by that itself, it
24
cannot be said that defendant no.1 treated the suit properties as
ancestral properties and/or Joint Family Properties.
9.4 Even considering the Will executed by defendant no.1
dated 11.02.1987 and the subsequent revocation of the Will is
suggestive of the fact that defendant no.1 all throughout treated
the suit property as her self­acquired property which according to
her   were   purchased   from   the   Stridhana   and   selling   of   the
jewellery. 
10. It   is   required   to   be   noted   that   in   the   plaint   the
plaintiffs   came   out   with   the   case   that   the   suit   properties
purchased   in   the   name   of   defendant   no.1   by   Narayanasamy
Mudaliar from the funds raised by selling the ancestral properties
received by him. It was never the case on behalf of the plaintiffs
that   the   suit   properties   were   purchased   by   Narayanasamy
Mudaliar   in   the   name   of   defendant   no.1   out   of   the   income
received from the ancestral properties. However, considering the
date of transactions with respect to the suit properties and the
ancestral properties sold by Narayanasamy Mudaliar, it can be
seen   that   all   the   suit   properties   purchased   in   the   name   of
defendant  no.1  were  much  prior  to   the  sale of   the  ancestral
25
properties by Narayanasamy Mudaliar. The ancestral property
was sold by the Narayanasamy Mudaliar (Exh. A3)  11.11.1951.
However, the Sale Deeds at Exh. B3, B4, B5, B6 and B7 which
are in favour of defendant no.1 were much prior to the sale of the
property at Exh. A3. Therefore, also it cannot be said that the
suit properties were purchased in the name of defendant no.1 by
Narayanasamy Mudaliar from the funds received by selling of the
ancestral properties.
11. Even considering the observations made by this Court
in paragraph 10 in the case of Om Prakash Sharma (Supra) it
can be said that Narayanasamy Mudaliar might have purchased
the properties in the name of defendant no.1 in order to provide
his wife with a secured life in the event of his death. It is required
to   be   noted   that   it   was   the   specific   case   on   behalf   of   the
defendant no.1 that the suit properties were purchased by her
from the Stridhana and on selling of the jewellery.
12. It is required to be noted that the benami transaction
came to be amended in the year 2016. As per Section 3 of the
Benami   Transaction   (Prohibition)   Act   1988,   there   was   a
presumption that the transaction made in the name of the wife
26
and children is for their benefit. By Benami Amendment Act,
2016, Section 3 (2) of the Benami Transaction Act, 1988 the
statutory presumption, which was rebuttable, has been omitted.
It is the case on behalf of the respondents that therefore in view
of omission of Section 3(2) of the Benami Transaction Act, the
plea of statutory presumption that the purchase made in the
name of wife or children is for their benefit would not be available
in the present case. Aforesaid cannot be accepted. As held by this
Court   in   the   case   of  Binapani   Paul  (Supra)   the   Benami
Transaction   (Prohibition)   Act   would   not   be   applicable
retrospectively. Even otherwise and as observed hereinabove, the
plaintiff has miserably failed to discharge his onus to prove that
the Sale Deeds executed in favour of defendant no.1 were benami
transactions   and   the   same   properties   were   purchased   in   the
name of defendant no.1 by Narayanasamy Mudaliar from the
amount   received   by   him   from   the   sale   of   other   ancestral
properties.
12.1 Once   it   is   held   that   the   Sale   Deeds   in   favour   of
defendant no.1 were not benami transactions, in that case, suit
properties, except property nos. 1 and 3, which were purchased
27
in her name and the same can be said to be her self­acquired
properties   and   therefore   cannot   be   said   to   be   Joint   Family
Properties, the plaintiffs cannot be said to have any share in the
suit properties (except property nos. 1 and 3). At this stage, it is
required   to   be   noted   that   the   learned   Counsel   appearing   on
behalf of defendant no.1 has specifically stated and admitted that
the   suit   property   Item   nos.   1   and   3   can   be   said   to   be   the
ancestral properties and according to him even before the High
Court also it was the case on behalf of the defendant no.1 that
item nos. 1 and 3 of the suit properties are ancestral properties.
13. In view of the above and for the reasons stated above,
the present appeal is partly allowed. The impugned judgement
and order passed by the High Court as well as the Trial Court
holding that the plaintiffs have 3/4th share in the suit properties
(Except Item Nos. 1 and 3 of the suit properties) are hereby
quashed and set aside. It is observed and held that except Item
Nos. 1 and 3 of the suit properties, the plaintiffs have no share in
other suit properties. Preliminary Decree directed to be drawn by
the learned Trial Court, confirmed by the High Court, is hereby
28
directed to be modified accordingly. The present appeal is partly
allowed to the aforesaid extent. No costs.
……………………………….J.
[L. NAGESWARA RAO]
New Delhi; ……………………………….J.
May 09, 2019.         [M.R. SHAH] 
29
     Reportable
        IN THE SUPREME COURT OF INDIA
            CIVIL APPELLATE JURISDICTION
  CIVIL APPEAL NO.  4805 OF 2019
      (ARISING OUT OF SLP (C) NO.29642 OF 2016)
Mangathai Ammal (Died) through
LRs and Others                       ..Appellant(s)
             Versus
Rajeswari & Others                                              ..Respondent(s)
J U D G M E N T
M.R. SHAH, J.
1. Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned
Judgment and Order passed by the High Court of Judicature at
Madras   dated   05.01.2016   passed   in   AS   No.785   of   1992
dismissing the same and affirming the Judgment and Decree
dated 05.08.1992 passed by the learned Subordinate Judge, Arni
30
in O.S. No.124 of 1990 decreeing the suit for partition by original
plaintiff, the original defendant nos. 1 to 3 have preferred the
present appeal.
3. The facts leading to the present appeal in nutshell are
as under :
That,   one   Rajeswari   and   Others­original   plaintiffs
instituted a suit bearing O.S.  No.124 of 1990 for partition of the
suit properties and separate possession. It was the case on behalf
of   the   plaintiffs   that   the   first   defendant   is   the   wife   of   one
Narayanasamy Mudaliar. That, the said Narayanasamy Mudaliar
and original defendant no.1 had one son and three daughters
namely Elumalai (son), Ranganayaki (daughter), Nagabushanam
(daughter) and Navaneetham (daughter). That, the son Elumalai
and daughter Ranganayaki had died. The first plaintiff is the wife
of Elumalai, the second plaintiff and plaintiff nos. 3 to 8 are the
husband   and   children   of   the   deceased   Ranganayaki.   That,
Elumalai and the first plaintiff did not have issue. According to
the original plaintiffs, Narayanasamy Mudaliar sold the ancestral
properties and purchased the suit property in the name of first
defendant ­ Mangathai Ammal (wife of Narayanasamy Mudaliar).
31
Therefore,   it   was   the   case   on   behalf   of   the   plaintiffs   that
Narayanasamy Mudaliar and his son Elumalai are entitled to half
share of the ancestral properties. That, it was the case on behalf
of the plaintiffs that the same Narayanasamy Mudaliar had died
twenty years back to the  filing of the  suit. His share in the
properties was inherited by Elumalai, defendant nos. 1 and 2 viz
Nagabushanam   Ammal   and   Ranganayaki   Ammal.   That,   the
Ranganayaki died about six years before filing of suit, therefore,
her legal representatives viz original plaintiff nos.2 to 8 inherited
her share in the properties. That, the Nagabushanam executed
the   Release   Deed   dated   24.04.1990   in   favour   of   the   first
defendant. According to the plaintiffs, the first plaintiff is entitled
to 5/8th share, plaintiff nos. 2 to 8 are entitled to 1/8th share
and   the   defendants   are   entitled   to   1/4th   share   in   the   suit
properties. According to the plaintiffs, since the defendant tried
to claim the suit properties, the plaintiffs filed the present suit for
partition.
3.1 The suit was resisted by the defendants. As per the
case of the first defendant, except item nos. 1 and 3 of the suit
properties, the other properties are self­acquired properties of the
32
first defendant. According to the first defendant, the first item of
the suit property was purchased out of the money provided by
her   in   her   name.   According   to   the   first   defendant,   the   suit
properties   are   not   the   ancestral   properties   of   Narayanasamy
Mudaliar. It was denied that the suit properties were purchased
by selling the ancestral properties. It was the case on behalf of
the defendant no.1 that except properties in item nos. 1 and 3 of
Schedule II, the properties were purchased by the defendant no.1
out of the stridhana she received from her parents’ house and by
selling   the   gold   jewellery.   It   was   also   the   case   on   behalf   of
defendant   no.1   that   after   purchasing   the   property   from
Thangavel Gounder and others; she constructed a house and is
in possession and enjoyment of the said property. According to
the defendant no.1, the deceased Narayanasamy Mudaliar was
entitled to 47 cents in Survey No. 218/1 and 8 cents in Survey
No. 218/3 and the deceased Ranganayaki Ammal is entitled to
1/5th share in the suit properties. It was also the case on behalf
of the first defendant  that, similarly, the first plaintiff’s husband
is also entitled to 1/5th share, in which, first defendant and first
plaintiff are entitled to half share in the suit properties. According
to   the   first   defendant,   the   first   defendant’s   daughter
33
Nagabhushanam executed a Release Deed in respect of her own
share. It was also the case on behalf of the first defendant that
she never acted as a manager of the joint family. According to
her, she executed a Will dated 11.02.1987 in favour of plaintiff
nos. 1 and 2 and Nagabhushanam Ammal. However, since the
beneficiaries of the Will did not take care of the first defendant,
she revoked the Will on 11.06.1990.
3.2 Defendant   nos.   2   and   3   supported   defendant   no.1.
According to defendant nos. 2 and 3, defendant no.1 mortgaged
the property with defendant no. 3 for a valuable consideration,
which was also known to the plaintiffs. Defendant nos. 2 and 3
also adopted the written statement filed by defendant no.1.
3.3   That   the   learned   Trial   Court   framed   the   following
issues:
“1)   Whether   the   suit   schedule   properties   are
ancestral properties of husband of the 1st plaintiff
namely   Elumalai   and   the   deceased
Narayansamy?
2) Whether it is true that the 1st defendant had
managed the suit schedule properties being the
Manager of the Family?
3)   Whether   it   is   true   that   the   Suit   Schedule
properties are jointly enjoyed by all the family
members as Joint Family Property?
34
4)   Whether   the   plaintiffs   are   entitled   to   claim
partition   in   view   of   the   Release   Deed   dated
24.04.90 executed by Nagabooshanam Ammal?
5) Whether it is true that the 1st defendant had
executed a Will on 11.2.87 to and in favour of
plaintiffs in respect of suit schedule property and
revoked the said Will on 11.6.90?
6) Whether it is true that the plaintiffs are in
joint possession of the suit schedule properties?
7) Whether the plaintiffs are entitled to get 3/4th
share over the suit schedule properties?
8)   Whether   the   present   suit   is   not   valued
properly?
9) To what relief the plaintiffs are entitled?
3.4   Before the Trial Court, on the side of the plaintiffs,
four witnesses were examined and three documents Exh. A1 to
A3 were marked. On the side of the defendants, two witnesses
were examined and 19 documents Exh. B1 to B19 were marked.
That, the learned Trial Court, after taking into consideration the
oral   and   documentary   evidences   of   both   the   sides,   passed   a
preliminary decree finding that the plaintiffs are entitled to 3/4th
share in the suit properties. Feeling aggrieved and dissatisfied
with the Judgment and Decree passed by the Trial Court, the
original defendant nos. 1 to 3 preferred appeal before the High
Court. That, by impugned Judgment and Order, the High Court
has dismissed the said appeal and has confirmed the Judgment
35
and Decree passed by the Trial Court. Feeling aggrieved and
dissatisfied with the impugned Judgment and Order passed by
the   High   Court   dismissing   the   appeal   and   confirming   the
Judgment and Decree passed by the learned Trial Court, original
defendant nos.1 to 3 have preferred the present appeal.
4. Shri V. Prabhakar, learned Counsel has appeared on
behalf of the appellants­original defendants and Shri G. Balaji,
learned   Counsel   has   appeared   on   behalf   of   the   respondentsoriginal plaintiffs.
5. Shri   V.   Prabhakar,   learned   Counsel   appearing   on
behalf   of   the   original   defendant   nos.1   to   3   has   vehemently
submitted that in the facts and circumstances of the case, both,
the learned Trial Court as well as the High Court have committed
a grave error in decreeing the suit and holding that the original
plaintiffs have 3/4th share in the suit properties.
5.1 It is further submitted by Shri V. Prabhakar, learned
Counsel appearing on behalf of the appellants­original defendant
nos.1 to 3 that the suit properties were purchased by defendant
no.1 out of the stridhana she received from her parents and by
selling the gold jewellery. It is submitted that, admittedly, the suit
36
properties were purchased in the name of original defendant no.1
and   was   in   possession   of   defendant   no.1.   It   is   submitted
therefore,   the   finding   that   the   properties   were   purchased   by
Narayanasamy Mudaliar is erroneous.
5.2 It is further submitted by Shri V. Prabhakar, learned
Counsel appearing on behalf of the appellants­original defendant
nos.1   to   3   that   if   it   was   the   case   on   behalf   of   the   original
plaintiffs that the properties purchased in the name of defendant
no.1 were the benami transactions, in that case, the onus is/was
upon the plaintiffs to prove by leading cogent evidence that the
transactions were benami transactions. It is submitted that in
the present case, the plaintiffs have failed to discharge the onus
to prove that the transactions were benami transactions. It is
submitted that, both, the Trial Court as well as the High Court
had erroneously shifted the burden upon the defendants to prove
that the transactions/Sale Deeds in favour of defendant no.1
were not benami transactions. It is submitted that the aforesaid
is contrary to the settled proposition of law laid down by this
Court.
37
5.3 It is further submitted by Shri V. Prabhakar, learned
Counsel appearing on behalf of the appellants­original defendant
nos.1 to 3 that in the present case, solely on considering two
documents, namely, Exh. B3, Sale Deed in respect of one of the
properties   and   Exh.   B4,   the   Sale   Deed   with   respect   of   two
properties,   the   Courts   below   have   considered   the   entire   suit
properties as ancestral properties and/or the same properties
purchased   from   the   funds   raised   by   selling   the   ancestral
properties.
5.4 It is further submitted by Shri V. Prabhakar, learned
Counsel appearing on behalf of the appellants­original defendant
nos.1   to   3   that   merely   because   some   consideration   or   part
consideration was paid by the husband at the time of purchase of
property at Exh. B3­Sale Deed and/or merely purchasing the
stamp papers while purchasing the property at  Exh. B4­Sale
Deed, it cannot be said that the same properties as such were
purchased   from   the   funds   raised   by   selling   the   ancestral
properties and/or the same were purchased for and on behalf of
joint family.
38
5.5 It is further submitted by Shri V. Prabhakar, learned
Counsel appearing on behalf of the appellants­original defendant
nos.1 to 3 that both the Courts below have materially erred in
misinterpreting the Release Deed at Exh. A1. It  is submitted that
both the Courts below have materially erred in holding the suit
properties as joint family properties of Narayanasamy Mudaliar
on the ground that execution of Release Deed at Exh. A1 by
Nagabhushanam on payment of Rs.10,000/­ to Nagabhushanam
and on such payment Nagabhushanam released her share in the
property, was good to hold that the properties are the joint family
properties of Narayanasamy Mudaliar.
5.6 It is further submitted by Shri V. Prabhakar, learned
Counsel appearing on behalf of the appellants­original defendant
nos.1 to 3 that even considering the documentary evidences on
record, more particularly, Exh. B3 to B7, it can be seen that the
suit properties were purchased in the name of defendant no.1
were purchased much prior to the sale of some of the ancestral
properties   of   Narayanasamy   Mudaliar.   It   is   submitted   that,
therefore,   the   case   on   behalf   of   the   plaintiffs   that   the   suit
properties were purchased in the name of defendant no.1 out of
39
the   funds   raised   on   selling   the   ancestral   properties   of
Narayanasamy   Mudaliar,   cannot   be   accepted.   Relying   upon
paragraph 10 of the decision of this Court in the case of  Om
Prakash Sharma v. Rajendra Prasad Shewda, (2015) 15 SCC 556,
it is submitted by Shri V. Prabhakar, learned Counsel appearing
on behalf of the appellants that as the transactions/Sale Deeds
in favour of defendant no.1 were prior to the enactment of the
Hindu Succession Act and the amendments made thereto from
time   to   time,   even   it   can   be   said   that   the   intention   of   the
Narayanasamy Mudaliar to purchase the properties in the name
of defendant no.1­his wife was in order to provide the wife with a
secured life in the event of his death.
5.7 Shri   V.   Prabhakar,   learned   Counsel   appearing   on
behalf of the appellants­original defendant nos.1 to 3 submitted
that even otherwise, the plaintiffs have failed to prove by leading
cogent   evidence   that   the   transactions   of   sale   in   favour   of
defendant no.1 were benami transactions. It is submitted by Shri
V. Prabhakar that even in the plaint also there were no specific
pleadings  that  the   sale  transactions  of  the  suit  properties  in
favour   of   defendant   no.1   were   benami   transactions.   It   is
40
submitted that even the learned Trial Court also did not frame
any   specific   issue   with   respect   to   benami   transactions.   It   is
submitted that even otherwise on merits also and on considering
the recent decision of this Court in the case of P. Leelavathi v. V.
Shankarnarayana   Rao  (2019)   6   SCALE   112,   in   which   after
considering the earlier decisions of this Court in the case of
Jaydayal Poddar v. Bibi Hazra (Mst.)  (1974) 1 SCC 3;  Thakur
Bhim Singh v. Thakur Kan Singh (1980) 3 SCC 72; Binapani Paul
v.   Pratima   Ghosh  (2007)   6   SCC   100   and  Valliammal   v.
Subramaniam (2004) 7 SCC 233, it cannot be said that the Sale
Deeds   executed   in   favour   of   defendant   no.1   were   benami
transactions.
5.8 Making   above   submissions   and   relying   upon   above
decisions it is prayed to allow the present appeal.
6. Present   appeal   is   vehemently   opposed   by   Shri   G.
Balaji, learned Counsel appearing on behalf of the respondentsoriginal plaintiffs.
6.1 Shri G. Balaji, learned Counsel appearing on behalf of
the respondents­original plaintiffs has vehemently submitted that
on appreciation of entire evidence on record, both, learned Trial
41
Court   as   well   as   the   High   Court,   have   rightly   held   that   the
transactions of sale in favour of defendant no.1 were benami
transactions   as   the   said   properties   were   purchased   by
Narayanasamy Mudaliar in the name of defendant no.1 out of the
funds   received   from   selling   the   ancestral   properties.   It   is
submitted that on considering the documentary evidences Exh.
B3, B4 and even Exh. A1, the High Court has rightly observed
and held that the transactions/Sale Deeds in favour of defendant
no.1 were benami transactions and therefore the plaintiffs are
entitled   to   3/4th  share   in   the   suit   properties   which   were
purchased in the name of defendant no.1 but purchased out of
the   funds   received   from   selling   the   ancestral   properties   by
Narayanasamy Mudaliar.
6.2 It   is   further   submitted   by   Shri   G.   Balaji,   learned
Counsel appearing on behalf of the respondents­original plaintiffs
that   in   the   present   case,   all   the   conditions   to   prove   the
transactions as benami transactions as laid down by this Court
in the case of P. Leelavathi (Supra) have been satisfied.
6.3 It is vehemently submitted by Shri G. Balaji, learned
Counsel appearing on behalf of the respondents­original plaintiffs
42
that in the present case, even from the intention and conduct of
the parties it is proved that though the properties were in the
name of defendant no.1, they were purchased and enjoyed as
Joint   Family   Properties.   It   is   submitted   that   otherwise   the
Nagabhushanam would not have released her share in favour of
defendant no.1, if the daughter Nagabhushanam had no share. It
is   submitted   that   execution   of   the   Release   Deed   by
Nagabhushanam   in   favour   of   defendant   no.1   suggests   that
defendant   no.1   also   considered   the   share   of   the   daughter
Nagabhushanam by treating the suit properties as Joint Family
Properties.
6.4 It   is   further   submitted   by   Shri   G.   Balaji,   learned
Counsel appearing on behalf of the respondents­original plaintiffs
that the Will dated 11.02.1987, executed by defendant no.1, also
included   even   the   properties   exclusively   belonging   to
Narayanasamy Mudaliar. It is submitted, therefore, the intention
can   be   gathered   from   Exh.   B8   and   Exh.   B9   that   the   suit
properties are Joint Family Properties and therefore liable for
partition and not exclusive properties of defendant no.1.
43
6.5 It   is   further   submitted   by   Shri   G.   Balaji,   learned
Counsel appearing on behalf of the respondents­original plaintiffs
that the suit properties were purchased in the name of defendant
no.1   during   the   lifetime   of   Narayanasamy   Mudaliar.   It   is
submitted   that   original   defendant   no.1   had   no   independent
income.     It   is   submitted   that   Narayanasamy   Mudaliar   had
ancestral   properties/agricultural   lands   which   were   generating
income and he purchased all the properties in the name of his
wife­defendant   no.1   from   the   income   generated   from   the
ancestral   properties   and   by   selling   some   of   the   ancestral
properties.
6.6 It   is   further   submitted   by   Shri   G.   Balaji,   learned
Counsel appearing on behalf of the respondents­original plaintiffs
that even the statutory presumption which was rebuttable under
Section 3 (2) of the Benami Transaction Act, 1988 has been
omitted by Benami Amendment Act of 2016. It is submitted that
therefore as on date, there is no such statutory presumption that
the purchase made in the name of wife or children is for their
benefit.
44
6.7 Making   above   submissions   and   relying   upon   above
decisions it is prayed to dismiss the present appeal.
7. Heard the learned Counsel appearing on behalf of the
respective   parties   at   length.   We   have   gone   through   and
considered in detail the findings recorded by the learned Trial
Court as well as the High Court. We have also considered in
detail the evidences on record both oral as well as documentary.
7.1 At   the   outset,   it   is   required   to   be   noted   that   the
original   plaintiffs   instituted   the   suit   before   the   learned   Trial
Court for partition of the suit properties and claiming 3/4th share
with   the   pleadings   that   the   suit   properties   were   ancestral
properties and that the Narayanasamy Mudaliar has purchased
the suit properties in the name of his wife­defendant no.1 out of
the   funds   derived   through   selling   his   share   of   the   property
acquired through ancestral nucleus to some other person and
that   the   suit   properties   were   in   absolute   possession   and
enjoyment   of   the   Joint   Family   Property   since   the   date   of
purchase.   From   the   pleadings,   it   appears   that   it   was   not
specifically   pleaded   by   the   plaintiffs   that   the   Sale
Deeds/transactions   in   favour   of   defendant   no.1   were   benami
45
transactions. It was also not pleaded that the suit properties were
purchased   in   the   name   of   defendant   no.1   by   Narayanasamy
Mudaliar from the income derived out of the ancestral properties.
Even the learned Trial Court did not specifically frame the issue
that whether the transactions/Sale Deeds in favour of defendant
no.1 are benami transactions or not? Despite the above, learned
Trial   Court   and   the   High   Court   have   held   that   the
transactions/Sale Deeds in favour of defendant no.1 were benami
transactions. The aforesaid findings recorded by the Trial Court
confirmed   by   the   High   Court   and   the   consequent   relief   of
partition granted in favour of the plaintiffs is the subject matter
of the present appeal.
8. While considering the issue involved in the present
appeal   viz.   whether   the   transactions/Sale  Deeds   in   favour   of
defendant no.1 can be said to be benami transactions or not, the
law on the benami transactions is required to be considered and
few decisions of this Court on the aforesaid are required to be
referred to.
8.1 In the case of Jaydayal Poddar (Supra) it is specifically
observed and held by this Court that the burden of proving that a
46
particular sale is benami and the apparent purchaser is not the
real owner, always rests on the person asserting it to be sold. It is
further observed that this burden has to be strictly discharged by
adducing legal evidence of a definite character which would either
directly prove the fact of the benami transaction or establish
circumstances unerringly and reasonably raising an interference
of that fact. In paragraph 6 of the aforesaid decision, this Court
has observed and held as under :
“6. “It is well­settled that the burden of proving
that a particular sale is benami and the apparent
purchaser is not the real owner, always rests on
the 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   the   fact   of   benami   or
establish   circumstances   unerringly   and
reasonably raising an inference of that fact. The
essence of a benami is the intention of the party
or   parties   concerned;   and   not   unoften,   such
intention   is   shrouded   in   a   thick   veil   which
cannot   be   easily   pierced   through.   But   such
difficulties do not relieve the person asserting the
transaction   to   be   benami   of   any   part   of   the
serious onus that rests on him; nor justify the
acceptance of mere conjectures or surmises, as a
substitute for proof. The reason is that a deed is
a solemn document prepared and executed after
considerable   deliberation,   and   the   person
expressly shown as the purchaser or transferee
in the deed, starts with the initial presumption in
his favour that the apparent state of affairs is the
real state of affairs. Though the question whether
47
a particular sale is benami or not, is largely one
of   fact,   and   for   determining   this   question,   no
absolute   formulae   or   acid   tests,   uniformly
applicable in all situations, can be laid down; yet
in weighing the probabilities and for gathering
the   relevant   indicia,   the   courts   are   usually
guided   by   these   circumstances:(1)   the   source
from which the purchase money came; (2) the
nature and possession of the property, after the
purchase;   (3)   motive,   if   any,   for   giving   the
transaction a benami colour; (4) the position of
the parties and the relationship if any, between
the claimant and the alleged benamidar; (5) the
custody of the title deeds after the sale and (6)
the conduct of the parties concerned in dealing
with the property after the sale.
In the case of Thakur Bhim Singh (Supra) this Court in
paragraph 18 observed and held as under :
“18. The principle governing the determination of
the   question   whether   a   transfer   is   a   benami
transaction or not may be summed up thus: (1)
the   burden   of   showing   that   a   transfer   is   a
benami   transaction   lies   on   the   person   who
asserts that  it  is  such a  transaction; (2) it  is
proved that the purchase money came from a
person other than the person in whose favour the
property is transferred, the purchase is prima
facie assumed to be for the benefit of the person
who supplied the purchase money, unless there
is evidence to the contrary; (3) the true character
of the transaction is governed by the intention of
the   person   who   has  contributed  the   purchase
money   and   (4)   the   question   as   to   what   his
intention was has to be decided on the basis of
the surrounding circumstances, the relationship
of the parties, the motives governing their action
48
in   bringing   about   the   transaction   and   their
subsequent conduct, etc.”
8.2 In the case of P. Leelavathi (Supra) this Court held as
under :
“9.2 In  Binapani Paul  case (Supra), this Court
again had an occasion to consider the nature of
benami transactions.  After considering a catena
of decisions of this Court on the point, this Court
in   that   judgment   observed   and   held   that   the
source   of   money   had   never   been   the   sole
consideration. It is merely one of the relevant
considerations   but   not   determinative   in
character.  This Court ultimately concluded after
considering its earlier judgment in the case of
Valliammal v. Subramaniam (2004) 7 SCC 233
that   while   considering   whether   a   particular
transaction is benami in nature, the following six
circumstances can be taken as a guide:
“(1) the source from which the purchase money
came;
(2) the nature and possession of the property,
after the purchase;
(3) motive, if any, for giving the transaction a
benami colour;
(4)   the   position   of   the   parties   and   the
relationship, if any, between the claimant and
the alleged benamidar;
(5) the custody of the title deeds after the sale;
and
49
(6)   the   conduct   of   the   parties   concerned   in
dealing   with   the   property   after   the   sale.
(Jaydayal Poddar v. Bibi Hazra (supra), SCC p. 7,
para6)”
8.3 After considering the aforesaid decision in the recent
decision of this Court in the case of  P. Leelavathi  (Supra), this
Court   has   again   reiterated   that   to   hold   that   a   particular
transaction is benami in nature the aforesaid six circumstances
can be taken as a guide.
8.4 Applying law laid down by this Court in the aforesaid
decisions to the facts of the case on hand and the reasoning
given by the Trial Court confirmed by the High Court, it appears
that both, the learned Trial Court and the High Court have erred
in shifting the burden on the defendants to prove that the sale
transactions were not benami transactions. As held hereinabove
in fact when the plaintiffs’ claim, though not specifically pleaded
in the plaint, that the Sale Deeds in respect of suit properties,
which   are   in   the   name   of   defendant   no.1,   were   benami
transactions,   the   plaintiffs   have   failed   to   prove,   by   adducing
cogent evidence, the intention of the Narayanasamy Mudaliar to
50
purchase the suit properties in the name of defendant no.1 – his
wife.
9. Even the reasoning and the findings recorded by the
Trial Court confirmed by the High Court while holding the Sale
Deeds/transactions   in   favour   of   defendant   no.1   as   benami
cannot be said to be germane and or fulfilling the circumstances
as carved out by this Court in the aforesaid decisions.
9.1 The first reason which is given by the learned Trial
Court while holding the suit properties as benami transactions is
that part sale consideration was paid by Narayanasamy Mudaliar
at the time of the purchase of the property vide Sale Deed Exh.
B3. As  held  by this   Court  in   catena  of  decisions  referred  to
hereinabove, the payment of part sale consideration cannot be
the sole criteria to hold the sale/transaction as benami. While
considering a particular transaction as benami, the intention of
the person who contributed the purchase money is determinative
of the nature of transaction. The intention of the person, who
contributed the purchase money, has to be decided on the basis
of the surrounding circumstances; the relationship of the parties;
the   motives   governing   their   action   in   bringing   about   the
51
transaction and their subsequent conduct etc. It is required to be
noted that Narayanasamy Mudaliar, who contributed part sale
consideration by purchasing property at Exh. B3, might have
contributed   being   the   husband   and   therefore   by   mere
contributing the part sale consideration, it cannot be inferred
that Sale Deed in favour of the defendant no.1­wife was benami
transaction and for and at behalf of the joint family. Therefore,
the Trial Court as well as the High Court have committed a grave
error   in   holding   the   suit   properties   as   benami
transactions/ancestral properties on the basis of the document
at Exh. B3.
9.2 Similarly, merely because of the stamp duty at the
time of the execution of the Sale Deed at Exh. B4 was purchased
by Narayanasamy Mudaliar, by that itself it cannot be said that
the Sale Deed at Exh. B4 in favour of defendant no.1 was benami
transaction. It is required to be noted that except the aforesaid
two   documentary   evidences   at   Exh.   B3   and   B4,   no   other
documentary   evidence/transaction/Sale   Deed   in   favour   of
defendant no.1 have been considered by the learned Trial Court
and even by the High Court.
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9.3 Now, so far as the findings recorded by the Trial Court
and the High Court on considering the Release Deed at Exh. A1
viz. the Release Deed executed by Nagabushanam in favour of
defendant   no.   1   on   payment   of   Rs.10,000/­   and   therefore
inference drawn by the learned Trial Court and the High Court
that therefore even the defendant no.1 also considered the share
of the daughter and considered the suit properties as joint family
properties and therefore plaintiffs have also share in the suit
properties is concerned, the said finding is just a mis­reading and
mis­interpretation of the evidence on record. In her deposition,
defendant  no.1  has  explained  the  payment  of  Rs.10,000/­  to
Nagabushanam, daughter and the Release Deed executed by her.
It is specifically stated by her that though she had no share in
the suit properties, with a view to avoid any further litigation in
future and  to  be on  safer  side, Rs.10,000/­ is paid  and the
Release Deed was got executed by Nagabushanam in favour of
defendant no.1. Even in the Release Deed at Exh. A1, it is so
specifically stated. Therefore, merely because to avoid any further
litigation in future and though Nagabushanam had no share in
the suit properties, Rs.10,000/­ was paid and the Release Deed
was got executed in favour of defendant no.1, by that itself, it
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cannot be said that defendant no.1 treated the suit properties as
ancestral properties and/or Joint Family Properties.
9.4 Even considering the Will executed by defendant no.1
dated 11.02.1987 and the subsequent revocation of the Will is
suggestive of the fact that defendant no.1 all throughout treated
the suit property as her self­acquired property which according to
her   were   purchased   from   the   Stridhana   and   selling   of   the
jewellery. 
10. It   is   required   to   be   noted   that   in   the   plaint   the
plaintiffs   came   out   with   the   case   that   the   suit   properties
purchased   in   the   name   of   defendant   no.1   by   Narayanasamy
Mudaliar from the funds raised by selling the ancestral properties
received by him. It was never the case on behalf of the plaintiffs
that   the   suit   properties   were   purchased   by   Narayanasamy
Mudaliar   in   the   name   of   defendant   no.1   out   of   the   income
received from the ancestral properties. However, considering the
date of transactions with respect to the suit properties and the
ancestral properties sold by Narayanasamy Mudaliar, it can be
seen   that   all   the   suit   properties   purchased   in   the   name   of
defendant  no.1  were  much  prior  to   the  sale of   the  ancestral
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properties by Narayanasamy Mudaliar. The ancestral property
was sold by the Narayanasamy Mudaliar (Exh. A3) was on dated
11.11.1951. However, the Sale Deeds at Exh. B3, B4, B5, B6 and
B7 which are in favour of defendant no.1 were much prior to the
sale of the property at Exh. A3. Therefore, also it cannot be said
that the suit properties were purchased in the name of defendant
no.1   by   Narayanasamy   Mudaliar   from   the   funds   received   by
selling of the ancestral properties.
11. Even considering the observations made by this Court
in paragraph 10 in the case of Om Prakash Sharma (Supra) it
can be said that Narayanasamy Mudaliar might have purchased
the properties in the name of defendant no.1 in order to provide
his wife with a secured life in the event of his death. It is required
to   be   noted   that   it   was   the   specific   case   on   behalf   of   the
defendant no.1 that the suit properties were purchased by her
from the Stridhana and on selling of the jewellery.
12. It is required to be noted that the benami transaction
came to be amended in the year 2016. As per Section 3 of the
Benami   Transaction   (Prohibition)   Act   1988,   there   was   a
presumption that the transaction made in the name of the wife
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and children is for their benefit. By Benami Amendment Act,
2016, Section 3 (2) of the Benami Transaction Act, 1988 the
statutory presumption, which was rebuttable, has been omitted.
It is the case on behalf of the respondents that therefore in view
of omission of Section 3(2) of the Benami Transaction Act, the
plea of statutory transaction that the purchase made in the name
of wife or children is for their benefit would not be available in
the present case. Aforesaid cannot be accepted. As held by this
Court   in   the   case   of  Binapani   Paul  (Supra)   the   Benami
Transaction   (Prohibition)   Act   would   not   be   applicable
retrospectively. Even otherwise and as observed hereinabove, the
plaintiff has miserably failed to discharge his onus to prove that
the Sale Deeds executed in favour of defendant no.1 were benami
transactions   and   the   same   properties   were   purchased   in   the
name of defendant no.1 by Narayanasamy Mudaliar from the
amount   received   by   him   from   the   sale   of   other   ancestral
properties. 
12.1 Once   it   is   held   that   the   Sale   Deeds   in   favour   of
defendant no.1 were not benami transactions, in that case, suit
properties, except property nos. 1 and 3, which were purchased
56
in her name and the same can be said to be her self­acquired
properties   and   therefore   cannot   be   said   to   be   Joint   Family
Properties, the plaintiffs cannot be said to have any share in the
suit properties (except property nos. 1 and 3). At this stage, it is
required   to   be   noted   that   the   learned   Counsel   appearing   on
behalf of defendant no.1 has specifically stated and admitted that
the   suit   property   Item   nos.   1   and   3   can   be   said   to   be   the
ancestral properties and according to him even before the High
Court also it was the case on behalf of the defendant no.1 that
item nos. 1 and 3 of the suit properties are ancestral properties.
13. In view of the above and for the reasons stated above,
the present appeal is partly allowed. The impugned judgement
and order passed by the High Court as well as the Trial Court
holding that the plaintiffs have 3/4th share in the suit properties
(Except Item Nos. 1 and 3 of the suit properties) are hereby
quashed and set aside. It is observed and held that except Item
Nos. 1 and 3 of the suit properties, the plaintiffs have no share in
other suit properties. Preliminary Decree directed to be drawn by
the learned Trial Court, confirmed by the High Court, is hereby
57
directed to be modified accordingly. The present appeal is partly
allowed to the aforesaid extent. No costs.
……………………………….J.
[L. NAGESWARA RAO]
New Delhi; ……………………………….J.
May 09, 2019.         [M.R. SHAH] 
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