Benami Transactions; Meenakshi Ammal Vs. S. Vijayalekshmi [Kerala High Court, 16-08-2016]

Benami Transactions (Prohibition) Act, 1988 – S. 3(2) – purchase of property by any person in the name of his wife – It is natural for a person to purchase the property in the name of his wife intended for her benefit which has gained statutory recognition under Section 3(2) of the Act – the mere fact that the husband was also taking income from the property does not conclude that the said acquisition was not intended for the benefit of his wife. It is normal for a husband to take the income from the property of his wife and vice versa and nothing more can be attributed to such course of conduct. The sharing of income is insufficient to rebut the statutory presumption which is heavily loaded in favour of the ostensible title holder.

Benami Transactions (Prohibition) Act, 1988 – S. 3(2) –  presumption in favour of the person who holds ostensible title – the prohibition of benami transactions does not apply in the case of purchase of property by any person in the name of his wife or unmarried daughter and that it carries a presumption. The statutory presumption is that the said property had been purchased for the benefit of the wife or the unmarried daughter unless the contrary is proved. The presumption is however rebuttable by those who contend that the sale standing in the name of one person is in reality for the benefit of the other.

Property Law


IN THE HIGH COURT OF KERALA AT ERNAKULAM

V.CHITAMBARESH & K.HARILAL, JJ.

A.S.No.677 of 1999 & Cross Objection

Dated this the 16th day of August, 2016

AGAINST THE DECREE IN OS 68/1997 of I ADDL.SUB COURT,ERNAKULAM DATED 22-12-1998

APPELLANT(S): 7 th DEFENDANT

MEENAKSHI AMMAL AND OTHERS

BY ADVS.SRI.T.KRISHNAN UNNI (SR.) SRI.M.GOPIKRISHNAN NAMBIAR

RESPONDENT(S)/PLAINTIFF/DEFENDANTS 1 TO 6 & 8 TO 10

S. VIJAYALEKSHMI AND OTHERS

R. R1 BY ADV. SRI.R.D.SHENOY, (SR) R,R1 BY ADV. SRI.S.VINOD BHAT R1 BY ADV. SRI.LEGITH T.KOTTAKKAL R, BY ADV. SRI.K.L.NARASIMHAN R,R2 BY ADV. SRI.G.GOPAKUMAR (TVM) R,R6 BY ADV. SRI.BABU CHERUKARA R,R6 BY ADV. SRI.P.V.PRAKASAN R,R6 BY ADV. SRI.ANZAR BASHEER R,R6 BY ADV. SRI.P.ANTO THOMAS R7 BY ADV. SRI.P.SATHISAN

J U D G M E N T

Chitambaresh, J.

The claim of a daughter for her legitimate share in the family property is being stoutly resisted by her brothers aided by their mother for the past about two decades. The presumption under

Section 3(2) of the Benami Transactions (Prohibition) Act, 1988

[‘the Act’ for short] arises for consideration in this Appeal Suit. The parties are referred to in accordance with their rank in the court below since many of them died pending Appeal Suit and their legal heirs brought on record.

2. The plaintiff, defendants 1 to 6 and deceased Lalitha are the children of the seventh defendant born to Late Surya Narayana Iyer and the suit is one for partition of property. Defendants 8 to 10 are the children and husband of deceased Lalitha and the fifth defendant alone supported the plaintiff in the claim for partition. The plaint ‘A’ schedule property is six items of immovable property and the plaint ‘B’ schedule property are the movables including the jewellery, car and vessels. The court below has by the judgment impugned passed a preliminary decree for partition in regard to all the six items of the plaint ‘A’ schedule property. The court below has also passed a preliminary decree for partition in regard to item Nos.1 to 3 of the plaint ‘B’ schedule property which are jewellery and a car. The plaintiff has in addition been found entitled to her share of mesne profits from the property as also the value of the trees cut and sold by defendants 1, 2 and 5 to 7. The seventh defendant has filed the Appeal Suit contending that item Nos.3, 4, 5 and 6 of the plaint ‘A’ schedule property belong to her absolutely. The first defendant who runs a cinema talkies in item No. 5 of the plaint ‘A’ schedule property has filed a memorandum of cross objections assailing the preliminary decree.

3. We heard Mr.T.Krishnan Unni, Senior Advocate on behalf of the appellant. Mr.R.D.Shenoy, Senior Advocate on behalf of the first respondent and Mr.Babu Cherukara, Advocate on behalf of the sixth respondent.

4. There is no dispute as regards the partibility of item Nos.1 and 2 of the plaint ‘A’ schedule property covered by Exts.A1 and A2 sale deeds in favour of Surya Narayana Iyer. The plaintiff as the daughter of Surya Narayana Iyer is entitled to 1/9 shares over the same and the decree for partition granted in that regard is unassailable. There is a however a serious dispute as regards the partibility of item Nos.3, 4, 5 and 6 of the plaint ‘A’ schedule property covered by Exts.A3, A4 and A5 sale deeds. The sale deeds were executed in favour of the seventh defendant in the years 1963, 1971 and 1973 before the Act came into force. The plaintiff contends that the property was purchased in the name of the seventh defendant under Exts.A3, A4 and A5 sale deeds by her father and that it belongs to the family. The seventh defendant on the other hand contends that the property was purchased for her benefit only and that the same did not vest in the family. The plaintiff would be entitled to 1/9 shares over item Nos.3, 4, 5 and 6 of the plaint ‘A’ schedule property only if it is established that it belonged to her father.

5. The plaintiff asserts that the transactions A.S.No.677/1999 4 evidenced by Exts.A3, A4 and A5 sale deeds were well before the Act when a purchase by the husband in favour of his wife was prevalent. Reliance is placed on

Sura Lakshmiah Chetty and others v. Kothandarama Pillai, AIR 1925 Privy Council 181

wherein Lord Sir John Edge speaking for the Bench observed as follows:-

“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 plea of the plaintiff is that the beneficial interest in the property covered by Exts.A3, A4 and A5 sale deeds is in her father although the ostensible title is with the seventh defendant. The fifth defendant supported the plea of benami and relied on the following observations in