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Kistappa Naicker and anr. Vs. Elumalai Naicker - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 501 of 1973
Judge
Reported inAIR1977Mad38
AppellantKistappa Naicker and anr.
RespondentElumalai Naicker
Cases ReferredJaydayal Poddar v. Mst. Bibi Hazara
Excerpt:
- - it is well settled that the burden 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......and somebody comes and assures that the real title vests in another person and the person in whose name the title deed stands is a benamidar, the burden of proving that the person in whose name the title deed stands is not the beneficial owner and the beneficial owner is somebody else is throughout on the person who asserts to that effect, and the burden never shifts. this view is clear from a decision of the supreme court in jaydayal poddar v. mst. bibi hazara, : [1974]2scr90 . there, the supreme court observed:'it is well settled that the burden 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.....
Judgment:

1. The defendants in O. S. No. 291 of 1970, who succeeded before the trial Court, but lost before the first appellate Court, are the appellants herein. One Palani Ammal is the mother of the first appellant herein. The suit properties stand in the name of Palani Ammal, purchased by her under Ex. A-2 dated 3-9-1949 and Ex. A-3 dated 17-8-1965. The respondent purchased the suit properties from Palani Ammal under Ex. A-1 dated 22-9-1969. Alleging that the appellants unlawfully trespassed on 5-3-1970, cut and removed the crops raised by the respondent, the suit was instituted for declaration of the respondent's title to the suit properties and for recovery of possession with mesne profits.

2. The case of the appellants was that though the suit properties were purchased in the name of the first appellant's mother, the consideration for the purchase of the properties came from the appellants' father viz., Madurai Naicker, and, therefore, the suit properties were the joint family properties, and Palani Ammal had no title to the properties, and consequently the respondent did not derive any title from Palani Ammal. In short, the case of the appellants was that the purchases under Exts. A-2 and A-3 were benami in the name of Palani Ammal for the benefit of the joint family. The learned District Munsif, who tried the suit, accepted this case of the appellants, and dismissed the suit instituted by the respondent. However, on appeal, the learned Principal Subordinate Judge, Chingleput, reversed that conclusion and held that the allegation, of benami put forward by the appellants was not proved, and consequently, Palani Ammal was the owner of the properties and was competent to convey title thereto in favour of the respondent in the suit. With the result, he allowed the appeal preferred by the respondent and decreed the suit as prayed for. Hence the present second appeal by the defendants in the suit.

3. It has been repeatedly held by this Court that when a husband purchased the property in the name of his wife by paying his own money from that alone no inference can be drawn that the wife was only a benamidar, and having regard to the nature of the relationship between the parties, and the normal tendency of the husband to benefit the wire either by payment of money or by purchase of property in her name, the allegation of benami can be established only by proving the motive for such benami purchase--vide Thangavi Ammal v. Gurunatha Goundan, (1963) 2 MLJ 151 and Ammaponnammal v. Shanmugham Pillai, : AIR1971Mad370 . In view of this legal position settled by this Court, prima facie, the conclusion of the learned Subordinate Judge is correct.

4. However, Mr. R. Sundaravaradan, the learned counsel for the appellants, contended that there are two decisions, one by this court and another by the Privy Council holding that when a husband purchased property out of his own money in the name of his wife, the burden of proving that the wife was intended to be the beneficial owner thereof is on the person who claims that the property was the absolute property of the wife. In support of his contention, he relied on an observation contained in a Bench judgment of this Court viz., Palani Mudaliar v. M. Natarajan, : AIR1942Mad503 . The relevant statements are found in page 532 of the decision as follows:--

'Are these facts sufficient to establish an intention on the part of the first respondent to make a gift in favour of his wife? Krishnaswami Aiyangar J., did not think they were sufficient and his decision cannot be disturbed unless it is shown to be wrong. The burden is upon the appellants and I am not prepared to say that the burden has been discharged.'

It is on the last sentence reliance was placed for contending that this sentence lays down the law that the burden for proving that the wife was intended to be the beneficial owner is on the person who claims that the wife was the owner of the property. I am of the opinion that this argument is misconceived. The burden that is referred to in the passage extracted above deals with the burden resting on the appellant to prove that the judgment appealed against is wrong and the burden referred to in the last sentence has nothing to do with the burden in respect of proving the fact that the wife was meant to be the beneficial owner thereof. Consequently, this decision is not of any assistance whatever to the appellants.

5. The second decision on which reliance was placed is the decision of the Privy Council in Sura Lakshmiah Chetty v. Kothandarama Pillai . The relevant statement relied on is:

'There can be no doubt now that a purchase in India by a native of India of property in India in the name of his wife unexplained by other proved or admitted facts is to be regarded as a benami transaction by which the beneficial interest in the property is in the husband, although the ostensible title is in the wife. The rule of the law of England is to be assumed to be a purchase for the advancement of the wife does not apply in India.'

6. On the face of this, this decision did not deal with any burden of proof at all, and, therefore, the same is also not of any assistance to the appellants herein. Mr. P. Sundaravaradan, the learned Counsel for the appellants, made it absolutely clear that in such a case even though the burden in the first instance of proving that the consideration proceeded from the husband is on the person who asserts to the effect, once he has discharged that burden and has established that the consideration proceeded from the husband, the burden shifts to the person who asserts that the property is the property of the wife, to prove that the intention of the husband in so purchasing the property was to make the wife the beneficial owner thereof. I am unable to accept this argument, for there is no scope for the shifting of burden in such a manner in relation to an allegation of benami. Once the title deed stands in the name of a person and somebody comes and assures that the real title vests in another person and the person in whose name the title deed stands is a benamidar, the burden of proving that the person in whose name the title deed stands is not the beneficial owner and the beneficial owner is somebody else is throughout on the person who asserts to that effect, and the burden never shifts. This view is clear from a decision of the Supreme Court in Jaydayal Poddar v. Mst. Bibi Hazara, : [1974]2SCR90 . There, the Supreme Court observed:

'It is well settled that the burden 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.'

7. Under these circumstances, there are no merits in the second appeal, and the same fails and is dismissed. There will be no order as to costs. No leave.

8. Appeal dismissed.


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