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D. Damodaran Vs. D. Leelavathi Ammal and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberC.S. Nos. 6 and 157 of 1973
Judge
Reported inAIR1975Mad278
ActsEvidence Act, 1872 - Sections 115; Transfer of Property Act, 1882 - Sections 41
AppellantD. Damodaran
RespondentD. Leelavathi Ammal and anr.
Appellant AdvocateSampath Kumar and ;A.P. Kasturi Rangam, Advs.
Respondent AdvocateK. Ramaswami, ;A. Sarojini Devi and ;V. Vasudevaswami, Advs.
Cases Referred and Jaganatham Pillai v. Kunji
Excerpt:
.....of property act, 1882 - whether plaintiff entitled to partition and separate possession of suit property - facts revealed no portion of plaintiff's money had gone in for purchase of either suit site or superstructure thereon - first defendant had been in possession and enjoyment of property - title deeds were produced from custody of first defendant - property had been dealt with by executing various mortgages by defendant in capacity as owner - held, plaintiff not entitled to partition and separate possession of suit property. - - air1972mad390 would clearly applyto this case. whatever it may be, since i have found that no portion of the plaintiff's money has gone in for the purchase of either the suit site or the superstructure thereon, the first test laid down by their..........chetty and also the debt under the promissory note and to meet the other family expenses. the suit property is not jointly owned by the plaintiff and the first defendant, nor is the plaintiff in joint possession and enjoyment of the property and it belongs to the first defendant absolutely. the plaintiff has no right, title or interest and hence the suit is liable to be dismissed.5. it may be stated at this stage that pending the suit, the mortgage in favour of the second defendant was discharged by the first defendant and therefore, he has not filed any written statement6. on these pleadings the following issues were set put for trial :1. whether the suit property was purchased in the name of the first defendant benami for the benefit of the plaintiff?2. whether the suit as framed.....
Judgment:

Mohan, J.

1. C. S. No. 6 of 1973. Suit for declaration relating to the half share in house and ground No. 31, Basin Water Works Street, G. T. Madras, for division, and for separate possession of the said half share.

2. The plaint allegations inter alia are :

3. The first defendant is the wife of the plaintiff. They were married in or about 1937. They have two daughters and one son. The first defendant's father had a small old superstructure, namely. No. 31. Basin Water Works Street. G. T. Madras. The land belonged to the Corporation of Madras. In 1954, the Corporation of Madras filed an Ejectment Suit No. 41 of 1954 in the Court of Small Causes, Madras to evict the first defendant. An application was filed to purchase the land as the tenancy was covered by the provisions of the Madras City Tenants' Protection Act of 1922. Ultimately, a sum of Rs. 1,292 was paid as the price of the land and a sale deed was obtained in the name of the first defendant with the money paid by the plaintiff. In 1962, the superstructure thereon was rebuilt from the money advanced by the lessees Messrs, Southern Roadways which was a sum of Rs. 12,000. The plaintiff raised a loan of Rs. 9,000 in 1965 from one LakshmanaChetty and discharged the amount borrowed from M/s. Southern Roadways. A mortgage in favour of Lakshmana Chetty was executed at the direction of the plaintiff by the first defendant. Another mortgage was executed by the first defendant in favour of one Boodevi Ammal for a sum of Rs. 10,000. In order to celebrate the marriage of the second daughter Vijayialakshmi yet another mortgage in favour of one Pukchraj Chordia was executed for Rs. 15,000. The mortgage in favour of the second defendant is for Rs. 20,000. The plaintiff submits that the mortgage is not binding on him and the second defendant has been impleaded as a party in order that the plaintiff's right may be protected and the plaintiff's case is that the purchase in the name of the first defendant is benami for the benefit of the plaintiff and since the first defendant denies the title of the plaintiff the present suit has come to be filed.

4. The written statement of the first defendant is to the following effect : The plaintiff's parents did not own any property and the plaintiff had no wherewithal to contribute to the purchase of the suit site or for the construction of the superstructure thereon. The plaintiff was employed as a clerk on a meagre salary in S. R. V. S. Limited and his monthly income was not sufficient to meet the needs of the family. It is not true to say that the plaintiff paid Rs. 1,292 towards the cost of the site. The superstructure was put up from the monies borrowed by executing mortgages in favour of Messrs. Southern Roadways which was discharged by executing a later mortgage in favour of Lakshmana Chetty. The money borrowed under the mortgage in favour of Boodevi Ammal was utilised to complete the additional construction. The money borrowed under the mortgage in favour of Pukhraj Chordia was used only for the marriage of Vijayalakshmi, the second daughter. On 4-12-1970 a sum of Rs. 20,000 was borrowed from the second defendant in order to discharge the prior mortgage in favour of Lakshmana Chetty and also the debt under the promissory note and to meet the other family expenses. The suit property is not jointly owned by the plaintiff and the first defendant, nor is the plaintiff in joint possession and enjoyment of the property and it belongs to the first defendant absolutely. The plaintiff has no right, title or interest and hence the suit is liable to be dismissed.

5. It may be stated at this stage that pending the suit, the mortgage in favour of the second defendant was discharged by the first defendant and therefore, he has not filed any written statement

6. On these pleadings the following Issues were set put for trial :

1. Whether the suit property was purchased in the name of the first defendant benami for the benefit of the plaintiff?

2. Whether the suit as framed is not maintainable without a prayer for declaration that the suit property belongs to the plaintiff?

3. Whether the suit has been properly valued and proper court-fee paid thereon?

4. Whether the plaintiff is entitled to partition and separate possession of a half share as claimed in the plaint?

5. Whether the plaintiff was in joint possession of any portion of the suit property at any time as alleged in the plaint?

6. Whether the plaintiff is estopped from claiming any share in the suit property for any of the reasons alleged by the first defendant?

7. To what relief? C. S. No. 157 of 1973.

7. The suit was originally filed before the City Civil Court, Madras and the same has been transferred to this Court. The suit is one for injunction filed by the first defendant in C. S. No. 6 of 1973, restraining the defendant (Plaintiff in C. S. No. 6 of 1973) from interfering with the possession and enjoyment of the plaintiff.

8. The allegations in the plaint are more or less similar as contained in the written statement in C. S. No. 6 of 1973 but with this addition namely that the defendant in this suit, namely the husband of the plaintiff is intimidating the tenants who offered to take the first floor on lease under the plaintiff and since he is threatening to use force against the plaintiff and the tenants under her; the necessity for the suit arose.

9. The defendant filed a written statement that the suit is only a counter blast to his suit namely C. S. No. 6 of 1973. The defendant has always been in possession and enjoyment of the first floor and there is no question of his interfering either with the plaintiff's enjoyment or the enjoyment of the tenants thereof.

10. On these pleadings, the following Issues were set out for trial :

1. Whether the suit property was purchased in the name of the plaintiff benami for the benefit of the defendant?

2. Has not the defendant been in possession of the first floor of the suit property even prior to the filing of the suit?

3. Whether the suit as framed is not maintainable?

4. Whether the plaintiff is entitled to the injunction prayed for? and

5. To what reliefs are the parties entitled?

11. Both the suits have been tried together as the parties are the same and evidence has been let in, which is common to both the suits.

12. Documentary evidence on the side of the plaintiff consists of Exs. P-1 to P-6 while that of the defendant is Exs. D-1 to D-9.

13. The parties will be referred to in the manner in which they were arrayed in C. S. No. 6 of 1973.

14. ISSUE NO. 1, In C. S. No. 6 of 1973 and C. S. No. 157 of 1973 is the main issue in both the suits. The oral evidence of the plaintiff as P.W. 1 is to the following effect : The father of the first defendant became an insolvent and he was so adjudicated in I. P. No. 177 of 1940. His mother was owning some lands in Tambaram which were disposed of for Rs. 2,600 and it was utilised for the partnership business of Padmanabha Chettiar. He was getting a salary of Rs. 150 per month and inclusive of batta he was getting a monthly income of Rs. 170. Towards the purchase of the suit Land by way of instalments he was paying from his salary Rs. 88 every month and the instalments were paid in consolidated amount of Rs. 600 or Rs. 700 and in that way the land was purchased and at the time of his retirement in 1958 he was paid a sum of Rs. 4,500 which was paid to the first defendant. In order to build the superstructure, monies were borrowed by executing mortgages and all these mortgages were executed by the first defendant at his direction. In cross-examination he admits that his wife the first defendant was running a ration shop in firewood in the year 1948 for about 1 1/2 years and after 1948 when the ration shop was closed the property was leased to tenants. In 1952 he was drawing Rs. 120 per month and by way of rental income from the suit property a sum of Rs. 70 per month was realised. It is further admitted by him that there are no documents to prove that the father of the first defendant was adjudicated insolvent. He denies the suggestion that no portion of his money was paid for the purchase of the property.

15. D.W. 1 is the first defendant. She stated in chief examination that she alone paid the various instalments for the purchase of the property by running the firewood depot and after the closing of the firewood depot the suit site was let out to tenants and by way of rental income about a sum of Rs. 50 or Rs. 60 per month was realised. She denies that her husband used to pay the salary to her and that she was paying the instalments out of the amounts given by him. In cross-examination she stated that her younger brother was helping her in the firewood business and he was going outside and bringing large quantities of firewood and was helping her in the wholesale business also and therefore she was able to get money for the purchase of the suit site. She denies the suggestion that Rs. 1.600 was paid to her by selling lands. Likewise she denies the payment of Rs. 4,500 by the plaintiff. She further states that the plaintiff paid not even a single pie for family expenses and whatever salary he was getting he was spending for himself. To discharge the mortgage in favour of Lakshmana Chetty and to meet stamp and other incidental expenses since the sale in respect of No. 33, General Muthiah Mudali Street, could not be effected there was mortgage in favour of the second defendant

16. The important question in this case is whether the property had been purchased benami in the name of the first defendant with the help of the monies belonging to the plaintiff. The test to determine the case of benami had been repeatedly laid down in various decisions. I will only refer to the decision in Jaya-daval Peddar v. Bibi Hazra. : [1974]2SCR90 . their Lordships lay down the following tests :

(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.

17. In the present case, as regards the first, namely the source, the plaintiff in his oral evidence would state that it was he who contributed towards the payment of instalments for the purchase of the suit site and then the entire amount of Rs. 1,292 due to the Corporation came to be paid only by him. There is absolutely no document to show this payment. But, he would have it that he had all these sources for the money while the defendant has nothing except to state that she was running a firewood depot. It is in evidence that the plaintiff was getting only a meagre salary of Rs. 150per month and he ceased to be in employment in 1958 itself. It may be noted as seen from Ex. D-2 series that the instalment began on 6-2-1957 and the actual sale came to be completed in 1960. At this crucial period, the plaintiff was unemployed and therefore, it is very hard to believe that he could have ever contributed to the purchase of the suit site. As stated above, except his oral testimony there is no other proof to show that his monies went to the purchase of the suit site. But he would state that since it is admitted by D.W. 1 that the firewood business ceased as early as 1948, the first defendant had no money to pay towards the instalments and consequently it must be held having regard to the fact that the plaintiff was the only earning member, the alone contributed towards the instalments. I am unable to agree. Admittedly after the firewood business ceased, there was a regular rental income from the property of about Rs. 70 per month which was utilised for the payment of the various instalments. Moreover, there is the oral evidence of D.W. 1 that her husband namely the plaintiff contributed nothing towards the purchase of the suit site, and whatever salary he was earning he utilised the same for himself. I am impressed with her evidence and it appears to me that she is speaking the truth. From this, I conclude that the site was purchased not 'with the money of the plaintiff but only by the first defendant and with her own money.

18. As regards the superstructure it is the common case that a mortgage was executed in 1962 in favour of the Southern Roadways for Rs. 12,000 a further mortgage was executed in favour of Lakshmana Chetty and with the help of these monies the superstructure came to be constructed.

19. Additions to the superstructure were also done with the help of the monies obtained from the mortgage executed in favour of Bhoodevi Animal and the mortgage in favour of the second defendant has come to be discharged by the first defendant. There is no question of contribution by the plaintiff at all as far as the superstructure is concerned. But he would have it that all the mortgages were executed only at his directions by the first defendant. It is very important to note that there are two mortgages in which the plaintiff has attested and they are Ex. D-3 dated 30-6-1962 and Ex. D-5 dated 9-6-1966. Resting on the attestation, I think the principle laid down in the two decisions in Ramaswami Gounder v. Ananthapadmanabha Iyer, (1971) 84 M LW 176 and Jaganatham Pillai v. Kunji-thapadam Pillai L. B. : AIR1972Mad390 would clearly applyto this case. It cannot be contended that the plaintiff was not aware of the recitals and therefore the attestation would not in any way constitute an estoppel. If really, as he himself states in his evidence that these mortgages were executed at his direction he would have been aware of the recitals in the documents and in such a case he would be estopped and the two decisions relied upon by the learned counsel for the first defendant Mr. K. Ramaswami fully support his submission relating to estoppel.

20. The learned counsel for the first defendant further contends on the allegations contained in paragraph 4 of the plaint the question of benami would not arise since it is stated '......... the

superstructure was secured with the intention to benefit the first defendant.' It is submitted that if there was an intention to benefit the first defendant the question of benami would not arise and on the strength of the decision in Anna-poornammal v. Shanmugham Pillai : AIR1971Mad370 he would be entitled to succeed and there cannot be a question of any benami. I do not agree. The statement contained in paragraph 4 of the plaint relates to the securing of superstructure in the year 1940. But from the facts of the case, it is clear that the suit site came to be purchased only in the year 1960 and the superstructure thereon was rebuilt subsequently by executing various mortgages. Whatever it may be, since I have found that no portion of the plaintiff's money has gone in for the purchase of either the suit site or the superstructure thereon, the first test laid down by their Lordships of the Supreme Court is not satisfied in this case. All the remaining tests have to be answered in favour of the first defendant, since she alone has been in possession and enjoyment of the property; no motive has been suggested for giving the transaction a benami colour; the title deeds are produced from the custody of the first defendant and the property has been dealt with by executing various mortgages by the defendant in her own capacity as the owner thereof. In this connection, it may also be noted that if really the plaintiff is the owner, there is no reason why he should choose to claim only half of the suit property instead of the entirety.

21. Thus, I answer Issue No. 1 against the plaintiff.

22. Issue No. 2 in C. S. No. 6 of 1973 : Properly speaking there ought to be a declaration and I find that there is a specific prayer for declaration with regard to the half share and the suit as framed is therefore, maintainable. Issue No, 2 is answered in favour of the plaintiff.

23. Issue No. 3 : No argument has been advanced on this Issue. However, I find that there is valuation with reference to half the share of the suit property and it has also been valued separately for the purpose of declaration under Section 25 (d) of the Madras Court Fees and Suits Valuation Act. Hence the Court-fee paid is correct.

24. Issues 4, 5 and 6: In view of my finding under Issue No. 1, I hold that the plaintiff is not entitled to partition and separate possession, that the plaintiff was never in enjoyment or possession of any portion of the suit property at any time and that the plaintiff is estopped from claiming any share in the suit property. All these Issues are answered against the plaintiff.

25. Issues 2 and 4 in C. S. No. 157 of 1973: From the oral evidence it is clear that the plaintiff was never in possession of the first floor of the suit property while the first defendant (Lilavathi Ammal) has always been in possession through her tenants and was collecting rents. Therefore, she would be entitled to the injunction prayed for.

26. Issue No. 3 in C. S. No. 157 of 1973: No arguments have been addressed as to why the suit as framed is not maintainable and I answer this Issue in favour of the first defendant (Lilavathi Ammal).

27-28. Issue No. 7 in C. S. No. 6 of 1973 and Issue No. 5 in C. S. No. 157 of 1973. In the result, C. S. No. 6 of 1973 shall stand dismissed while C. S. No. 157 of 1973 is decreed in favour of the first defendant (Lilavathi Ammal) in C. S. No 6 of 1973 and plaintiff in C. S. No. 157 of 1973. Having regard to the fact that the parties are related to each other as husband and wife, I think that this is a fit case in which each of the parties must be directed to bear his or her costs.


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