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 respondents­

original 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 respondents­

original 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.

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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

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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

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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

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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

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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  

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(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

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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

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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

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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

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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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