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Ponnuswamy Nadar Vs. Narayanan Nadar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberAppeal No. 194 of 1971, Against decree of Sub. J., Nagercoil in O. S. No. 43 of 1963, D/- 30-6-1970
Judge
Reported inAIR1977Mad19
ActsEvidence Act - Sections 101
AppellantPonnuswamy Nadar
RespondentNarayanan Nadar
Cases ReferredAbdul Latif Kazi v. Abdul Huq Kazi
Excerpt:
.....view contrary to the recitals in the impugned..........negotiations with various persons to sell various portions of the property. even on the date of sale executed by mustaffa, the plaintiff made the defendant to execute a sale in favour of one joseph muthian with regard to an extent of 9 acres. on the same day, the plaintiff cause a formal sale to be executed by the defendant in favour of the plaintiff himself in respect of 25 acres. in the said 25 acres, the plaintiff had already planted in june 1958 rubber, with the knowledge and consent of mustaffa. the said 25 acres were taken in order to enable him to made an application for licence. apart from the two sale deeds above-mentioned, the plaintiff caused the defendant to execute five more sale deeds in that year. in the year 1959, the plaintiff brought about altogether ten sale deeds.....
Judgment:

Ratnavel Pandian, J.

1. This appeal has been preferred by the unsuccessful plaintiff on O. S. 43 of 1968 on the file of the Subordinate Judge, Nagarcoil. The said suit was filed by him for declaration of his title to and possession of the plaintiff schedule property and a permanent injunction restraining the defendant from interfering with his possession, and if the defendant managed to get possession by force and was found to be in possession for directing him to deliver possession of the property to the plaintiff with mesne profits after giving declaration of title, and for costs.

2. The plaint allegations were as follows: The plaint schedule property is a portion of S. No. 1398/63-A in Kaliyal Village, the total extent of which is 250 acres. The said 250 acres belonged to one Mrs. Mohamed Mustaffa, son of Masthan Rowther. He executed in agreement of sale dated 16-9-1957 in favour of the plaintiff in respect of the said 250 acres, for a total consideration of Rs. 62,500/- and the plaintiff also paid an advance of Rs. 1,801/- to Mustaffa. From the time of the said agreement, the plaintiff was requesting Mustaffa to give the property on sale for a total consideration of Rs. 50,000/- which request Mustaffa also promised to consider, and it was under the said circumstances the consideration was recited as Rs. 62,500 in the agreement. The defendant was an intimate friend of the plaintiff and he was also a lessee of Mustaffa. While so, upto 25-9-1958 the plaintiff had paid to Mustaffa total sum of Rs. 27,876/-. Sometimes, the plaintiff had sent amounts to Mustaffa through the defendant. By that time, Mustaffa also was pleased to reduce the sale amount to Rs. 50,000/-. Because of the confidence in Mustaffa, the plaintiff also did not get any receipts, excepting a few receipts obtained in the name of the defendant and those receipts are with the defendant. The plaintiff is a Government servant and he retired on 7-12-1967. So, he requested Mustaffa to execute a sale deed ostensibly in the name of the defendant. So, on 29-9-1958, Mustaffa executed a sale deed in the name of the defendant. On the date of sale, the plaintiff made three separate payments of Rs. 1,600/- Rs. 2,000/- and Rs. 524/-. After the date of sale, the the plaintiff has also paid to Mustaffa various sums, totalling Rs. 18,000/-. while so, in October 1958, when the plaintiff met Mustaffa, he wanted to verify the account regarding the amounts paid till then. On reconciliation, it was found that a sum of Rs. 524/- had not been credited by Mustaffa. Mustaffa promised to rectify the accounts. Even regarding the payments made after 29-9-1958, the plaintiff had paid some amounts through the defendant. Even after the agreement of sale, the plaintiff had begun negotiations with various persons to sell various portions of the property. Even on the date of sale executed by Mustaffa, the plaintiff made the defendant to execute a sale in favour of one Joseph Muthian with regard to an extent of 9 acres. On the same day, the plaintiff cause a formal sale to be executed by the defendant in favour of the plaintiff himself in respect of 25 acres. In the said 25 acres, the plaintiff had already planted in June 1958 rubber, with the knowledge and consent of Mustaffa. The said 25 acres were taken in order to enable him to made an application for licence. Apart from the two sale deeds above-mentioned, the plaintiff caused the defendant to execute five more sale deeds in that year. In the year 1959, the plaintiff brought about altogether ten sale deeds and according to the directions of the plaintiff, the defendant executed those sale deeds. In 1960, as per the plaintiff's directions, the defendant executed three more sale deeds. An extent of 45 acres 20 cents, described in the plaint schedule, stands ostensibly in the name of the defendant. Because of confidence, the plaintiff did not take care to have the sale deed dated 29-9-1958 obtained from Mustaffa and the tax receipts, with him. The plaintiff has also spent a lot of money on the plaint schedule property for planting rubber. Through the defendant also, a lot of money has been spent. In addition to the above, the plaintiff has also paid to the defendant moneys for the friendship and work done by him for the plaintiff. The defendant had not paid nor spent any money of his own for getting the sale or for improving the property. While so, the plaintiff had reason to suspect some bad motive in the defendant. He asked the defendant to execute a formal deed acknowledging the benami nature of the document of sale of the year 1958, but the defendant refused. On 16-1-1968, the plaintiff issued notice to the defendant, demanding him to execute a formal deed, for which the defendant replied on 31-1-1968, raising false and untenable contentions. Hence the suit. The plaintiff also alleged that the plaint schedule property would yield a profit of Rs. 2,000/- per annum at the time of the presentation of the plaint.

3. The defendant filed a written statement contending as follows: The defendant purchased the entire property from Mustaffa on 29-9-1958 with his own money and has become the owner thereon. The plaintiff acted only as a broker and on the same date 29-9-1958 the defendant executed a sale deed respect of 25 acres for Rs. 2,000/- in lieu of the work done by the plaintiff as a broker. The defendant is not aware of any transaction between the plaintiff and Mustaffa. He never took any money to Mustaffa for the plaintiff. The plaintiff did not make any payment to Mustaffa and he had nothing to do with the sale in favour of the defendant. On 29-9-1958, the defendant sold 9 acres of land to Joseph Muthian for Rs. 1,500/-. The plaintiff is estopped from denying the defendant's title. The defendant has executed various sale deeds to various parties out of his own volition and had received moneys therefor, and he is in possession of 45 acres 20 cents as owner and the plaintiff has no right over the same. The defendant planted rubber in about 25 acres and he had put up building. In the remaining area he has planted other trees and has spent more than Rs. 75,000/-. The plaintiff wanted the defendant to sell property and the defendant refused and so the plaintiff has filed this suit to blackmail him. The plaintiff is not entitled to any relief. The defendant denies all the other allegations made in the plaint.

4. On the above pleadings, the following issues were framed:--

1. Whether the defendant is a benamidar for plaintiff of the suit properties?

2. Whether the agreement with Mohamed Mustaffa pleader in paragraph 3 is true?

3. whether Mustaffa agreed to reduce the sale price to Rs. 50,000/- at the request of plaintiff?

4. Whether the consideration for the sale was paid by the plaintiff?

5. Whether the sale deeds were executed by the defendant at the behest of plaintiff?

6. Whether plaintiff is estopped from denying the title of defendant?

7. Whether the improvements in the suit property were effected by plaintiff or defendant?

8. To what relief is plaintiff entitled?

9. What is the order as to costs?

5. On a consideration of all the documents filed in the case and the evidence adduced by the parties, the learned Subordinate Judge found all the issues against the plaintiff and dismissed the suit. Hence, the plaintiff has filed this appeal.

6. Mr. Chellaswami, learned Counsel for the appellant, mainly contends that the purchase of the properties was only benami in the name of the respondent for his benefit, and that he obtained Ex. B-1, the sale deed dated 29-9-1958, from Mohamed Mustaffa, the vendor, in the name of the respondent. According to the appellant, he paid the sale price to the vendor and as such the respondent has no manner of right over the suit properties. Therefore, the crucial question or the crux of the case is whether Ex. B-1 is a benami transaction or not.

7. In Minakumari Bibi v. Bejoy Singh, ILR 44 Cal 662 : 44 Ind App 72 : AIR 1916 PC 238, Sir Lawrence Jenkins has observed that though in cases of alleged benami transactions, there may be a ground for suspicion yet a Court's decision must rest not on suspicion or conjecture, but upon legal grounds established by legal testimony. In cases of this character, the determination of the question depends not only on direct oral evidence but also upon circumstances and surroundings of the case concerned. It has been held repeatedly that the burden of proof lies heavily on the person who claims against the tenor of the deed, that is, the alleged beneficiary, to show that the ostensible vendee was a mere name lender and the property was in fact purchased only for his benefit. Such burden would be discharged by such a plaintiff by satisfying the well-known criteria viz., (1) the source of purchase money relating to the transaction, (2) possession of the property, (3) the position of the parties and their relationship to one another, (4) the circumstances, pecuniary or otherwise, of the alleged transfer, (5) the motive for the transaction, (6) the Custody and production of the title deeds, and (7) the previous and subsequent conduct of the parties. Each of the above-said circumstances, taken by itself, is of no particular value and affords no conclusive proof of the intention to transfer the ownership from one person to the other. But, a combination of some or all of them and a proper weighing and appreciation of their value would go a long way towards indicating whether the ownership has been really transferred or where the real title lies. In every benami transaction, the intention of the parties is the essence. The true test to determine whether the transaction is benami or not is to look to the intention of the parties viz., whether it was intended to operate as such or whether it was only meant to the colourable; if colourable, the transaction is benami, otherwise the transaction is not benami. On the other hand, if the parties intended that it should take effect, the transaction cannot be said to be benami.

8. In Surasaibalini v. Phanindra Mohan. : [1965]1SCR861 it has been held as follows:

'The Court will presume an ostensible title to be the real title unless a plaintiff who seeks to assert the contrary pleads and proves that the ostensible owner is not the real owner. In other words, the onus is on the person who alleges a transaction to be benami to make it out. Of course, the source of the funds from which the purchase is made, coupled with the manner of its enjoyments, would be a real material factor for establishing the case of benami, but the mere proof of the source of the purchase money would not finally establish the benami nature of the defendant's title. Even where a plaintiff purchase property with his own funds in the name of B, the surrounding circumstances, the mode of enjoyment, might still indicate that it was intended to be a gift to B, and it would then not be a case of benami notwithstanding that the purchase money did not proved from the defendant.

The principles relating to a benami transaction have been clearly laid down in Abdul Latif Kazi v. Abdul Huq Kazi : AIR1924Cal523 . From the principles laid down in the decisions, it is clear that the person who impugns the apparent character of the transaction, viz., the appellant herein, must show something or other by letting in legal evidence establishing that the transaction in question is a benami one, and the issue cannot be disposed of by a mere conjecture or suspicion as to the various circumstances surrounding the transaction, since the very object of a benami transaction is secrecy. Section 101' of the Evidence Act provides that any one who desires a Court to give judgment as to any legal right or liability dependent on the existence of the facts which he asserts, must prove that those facts exist. The evidence adduced in cases of this character should stand the test of strict scrutiny and satisfy the tests mentioned above. In other words, the evidence must be reliable and acceptable, impelling the Court to take a view contrary to the recitals in the impugned document. The consideration of such evidence should be in a proper manner and in the right perspective. Now, having the principles in mind we shall discuss the evidence, oral, and documentary, under the various heads:

(After discussing the evidence in paragraphs 9-17 under the various heads the judgment concluded:)

18. Thus, viewing the case from each and every angle, there is not even an iota of evidence to support the claim of the plaintiff. On an overall appreciation of the entire evidence adduced by both parties, in the light of all relevant and surrounding circumstances, we have no hesitation to hold that the impugned sale deed Ex. B-1' is not a benami transaction.

19. We accordingly confirm the findings of the lower Court and dismiss the appeal with costs.

20. Appeal dismissed.


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