R. Narayana Pisharadi JUDGMENT
R. Narayana Pisharadi, J.
1. These two appeals arise out of the judgment and decree dated 31.12.2014 passed by the Family Court, Thodupuzha in O.P. No. 396/2013.
2. The appellant in Mat. Appeal No. 227/2015 is the husband and the first respondent therein is the wife. The appellant in Mat. A. No. 457/2015 is the wife and the first respondent therein is the husband. The second respondent in both appeals is a licencee of the building in the petition schedule property.
3. As per the order dated 12.09.2018, the name of the second respondent was deleted from the party array in Mat. A. No. 457/2015. It was also submitted at the Bar that the second respondent has vacated the building in the petition schedule property and that he is no more interested in the outcome of the appeals.
4. For the sake of convenience, the appellant and the first respondent in the appeals shall be hereinafter referred to as the husband and the wife or vice versa.
5. The husband filed O.P. No. 396/2013 in the Family Court for granting a decree of declaration of his title over the petition schedule property and also for a declaration that he is the person entitled to receive licence fee from the second respondent. He also sought a decree of prohibitory injunction restraining the wife and the second respondent from committing any act of waste in the petition schedule property and interfering with his possession over that property.
6. The sum and substance of the case of the husband is that the petition schedule property was purchased by him in the name of the wife and that he constructed a multi-storied building in that property by using his own funds and that he is the real owner of the property and the building therein.
7. The wife filed written statement in the original petition denying the material averments therein. She pleaded that the petition schedule property was purchased by her and not by the husband. She asserted that the new building in the petition schedule property was constructed by her and not by the husband. She contended that the first and the second floors of the building were given on licence arrangement to the second respondent by her and not by the husband. She also pleaded that the property was purchased by her using the funds obtained by her from her family. She asserted that the building was constructed by her by availing loan from the bank and that the husband has got no right or title over the petition schedule property and the building therein.
8. During the trial of the case, PW 1 and PW 2 were examined on the side of the husband and Exts. A1 to A14 documents were marked on his side. RW 1 to RW 3 were examined on the side of the wife and Exts. B1 to B10 documents were marked on her side.
9. The Family Court found that the petition schedule property was purchased by using the funds of the husband and that the building in the property was also constructed by the husband using his own funds. But, the Family Court declined to grant a decree of declaration that he has got title over the petition schedule property on the ground that it would affect the welfare of the family. The Family Court granted a decree of declaration that the husband is entitled to receive the monthly licence fee of the first and the second floors of the building from the second respondent. The Family Court also granted a decree of prohibitory injunction restraining the wife and the second respondent from committing any acts of waste in the building in the petition schedule property and causing any interference with the peaceful possession of the building by the husband. Aggrieved by the decree passed against her, the wife has filed Mat. A. No. 457/2015. Aggrieved by the refusal of the Family Court to grant a decree of declaration of title in his favour, the husband has filed Mat. A. No. 227/2015.
10. We have heard learned counsel for the parties. We have also perused the records of the case.
11. Did the husband succeed in establishing that purchase of the petition schedule property in the name of the wife is a benami transaction? If so, did he succeed in rebutting the presumption envisaged under Section 3(2) of the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as 'the Act')? These are the main questions that arise for consideration in these appeals.
12. The specific plea of the husband is that the petition schedule property, having an extent of 2.78 cents, belonged to the Tata Finlay Company and that the property was in the possession of one Chakkara Dhobi in the year 1979. It is his plea that he obtained possession of the property from Chakkara Dhobi on payment of Rs. 5,001/- as consideration. It is also his plea that in those days, the Tata Finlay Company did not use to give permission to transfer possession of leasehold property to persons other than the legal heirs of the persons who were in possession of the property. It is alleged by the husband that the assignment deed in respect of the property was executed in favour of the wife making a representation to the company that his wife is the daughter of Chakkara Dhobi.
13. Ext. A1 is the document of title in respect of the petition schedule property. It shows that the petition schedule property, having an extent of 2.78 cents, was assigned by the Tata Finlay company in the name of the wife on 14.09.1981 for a consideration of Rs. 2,800/-. Thus, the document of title in respect of the petition schedule property stands in the name of the wife.
14. Section 4(1) of the Act provides that no suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. However, Section 4(3)(b) of the Act (before its omission by Act 43 of 2016) provided that nothing in Section 4 shall apply, where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity. Therefore, neither the filing of a suit nor taking of a defence in respect of either a present or past benami transaction, involving purchase of property by a person in the name of his wife or unmarried daughter, is prohibited (See Nand Kishore Mehra v. Sushila Mehra : MANU/SC/0421/1995 : AIR 1995 SC 2145).
15. The husband was examined as PW 1. In examination-in-chief (proof affidavit), he has given evidence in tune with the averments in the original petition. He has specifically stated in examination-in-chief that Chakkara Dhobi was in possession of the petition schedule property and that he got possession of the property from Chakkara Dhobi for a consideration of Rs. 5001/-.He has also stated that a letter was obtained from Chakkara Dhobi that due to old age and illness, he could not carry on the job of dhobi and that he had handed over possession of the property to his daughter Valliammal (the wife herein) and it was on the basis of this letter that the company assigned the property in the name of the wife.
16. Nothing was brought out in the cross-examination of PW 1 to disbelieve his evidence. Only a bald suggestion was made to PW 1 in the cross-examination that the petition schedule property was purchased in the name of the wife by her parents. PW 1 denied that suggestion. The wife was examined as RW 1. During cross-examination, she has admitted that Chakkara Dhobi had only leasehold right over the petition schedule property. She has also admitted the fact that Tata Finlay Company used to assign the property only in the names of the persons who were in possession of the property and therefore, the property was purchased in her name. She also admitted that possession of the property was taken on making a written representation to the company that she was the daughter of Chakkara Dhobi. These admissions made by RW 1 in the cross-examination, coupled with the evidence of PW 1, supports the case of the husband regarding the circumstances under which he happened to purchase the property in the name of the wife.
17. The plea of the wife is that the petition schedule property was purchased by her parents in her name. Admittedly, the father of the wife was only a supervisor in the estate owned by the company and her mother was a coolie worker. There is nothing to show that the parents of the wife had the financial capacity to purchase the petition schedule property on payment of consideration in the year 1981.
18. Thus, on a close scrutiny and analysis of the evidence of PW 1 and RW 1, it can be very well found that it was the husband who purchased the petition schedule property in the name of the wife by using his own funds. It is pertinent to note that the wife has got no plea that she purchased the petition schedule property by using her own funds.
19. There is a presumption in law that the person who purchases the property is the owner of the same. This presumption can be displaced by successfully pleading and proving that the document was taken benami in the name of another person for some reason, and the person whose name appears in the document is not the real owner, but only a benami. Heavy burden lies on the person who pleads that the recorded owner is a benami holder. It is well established that burden of proving that a particular sale is benami lies on the person who alleges the transaction to be a benami. The essence of a benami transaction is the intention of the party or parties concerned and often, 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 discharging the serious onus that rests on him. Mere conjectures or surmises, cannot be accepted, as a substitute for proof in that regard. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. The question, whether a particular sale is benami or not, is largely one of fact. For determining this question, no absolute test, uniformly applicable in all situations, can be laid down. But, 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 (See Jaydayal Poddar v. Bibi Hazra : MANU/SC/0332/1973 : AIR 1974 SC 171 and Valliammal v. Subramaniam : MANU/SC/0699/2004 : AIR 2004 SC 4187).
20. In Jaydayal Poddar (supra), it has been held that the source of the purchase money is by far the most important test for determining whether the sale standing in the name of one person, is in reality for the benefit of another. In Valliammal (supra), it has been held that, the source from where the purchase money came and the motive why the property was purchased benami, are by far the most important tests for determining whether the sale standing in the name of one person, is in reality for the benefit of another.
21. In the instant case, the husband has been able to prove the circumstances under which and the reasons for purchasing the property in the name of the wife. He has also been able to prove, on the basis of preponderance of probabilities, that it was he who paid the money for purchasing the property. The wife could not prove that her parents had paid the money for purchasing the property in her name. The husband could succeed in proving that the purchase of the petition schedule property in the name of the wife was a benami transaction.
22. Section 3(1) of the Act provides that no person shall enter into any benami transaction. Section 3(2) of the Act (before its omission by Act 43 of 2016) provided that nothing in sub-section (1) shall apply to the purchase of properly by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter. Therefore, there was no prohibition for a husband to enter into a benami transaction by purchasing property in the name of his wife or unmarried daughter. But, then, the presumption is that the property was purchased by him for the benefit of the wife or the unmarried daughter. He would be able to get relief, in a suit claiming title to such property, only if he succeeds in rebutting the presumption and proving that the property concerned was purchased not for the benefit of the wife.
23. The husband has contended that the multi-storied building in the petition schedule property was constructed by him using his own funds. On the other hand, the plea of the wife is that she constructed the building by availing loan from the bank.
24. When examined as PW 1, the husband has given evidence that he started construction of a multi-storied building in the petition schedule property in the year 1987, after demolishing the old building therein. He has stated that on completion of the ground floor of the building in the year 2000, he shifted his residence with his family to the new building. He would say that the construction of a three-storied building was completed by him in the year 2008-2009. He has given evidence regarding the source of money for construction of the building. He would also say that after completion of the construction of the building, he started a lodge in the building by name 'Durga Inn'.
25. The evidence of PW 1 in examination-in-chief regarding the details of the construction of the multi-storied building in the property has not been successfully challenged during his cross-examination. Further, there is no worthwhile evidence to find that the wife had any independent source of income. Though it is alleged that she was conducting a sweet stall, the documents produced by the husband would show that the stall was in his name. The wife has also not produced any documents to prove that she had availed loan from the bank for construction of any building in the petition schedule property. When examined as PW 1, the husband has given the details of the construction of the building made in the petition schedule property and the details of the stages at which the construction was completed and the money spent for such construction. The wife has not given any such details. In these circumstances, the husband could prove that, it was he who constructed the new building in the petition schedule property and that it was constructed by using his own funds.
26. Of course, the wife had examined RW 2 and RW 3 to prove that the building was constructed by her. RW 2 is the uncle of the wife and RW 3 is her friend. Not much reliance can be placed upon their evidence. On appreciation of their evidence as a whole, it can be seen that they have no direct knowledge regarding the details of the construction of the new building in the property and raising of funds for the same.
27. Construction of a multi-storied building by the husband in the property is a circumstance which indicates that he purchased the property not for the benefit of the wife but it was for his own benefit. The husband had also given possession of two floors of the building to the second respondent on licence arrangement. This is another circumstance indicating beneficial utilization of the property by the husband. On the other hand, there is no evidence to prove that the wife had used the property and the building therein for her own benefit. Her residence in the building in the property is only in her capacity as the wife. In these circumstances, we are of the view that the husband could rebut the presumption under Section 3(2) of the Act.
28. In the aforesaid circumstances, the Family Court was not justified in declining to grant a decree of declaration in favour of the husband regarding the title over the property.
29. Consequently, Mat. A. No. 227 of 2015 is allowed. The appellant therein, who is the petitioner in O.P. No. 396/2013, is granted a decree of declaration that he is the owner of the petition schedule property and the building therein. Mat. A. No. 457/2015 is dismissed. It is made clear that on the basis of the decree passed in favour of the petitioner in O.P. No. 396/2013, he is not entitled to evict the first respondent- wife from the building therein otherwise than by due process of law till the marital relationship between them exists. No costs in the appeal.
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